TAINTED PROOFS: STAGING WRITTEN EVIDENCE IN EARLY MODERN DRAMA By Lisa M. Barksdale - Shaw A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of English - Doctor of Philosophy 2015 ABSTRACT TAINTED PROOFS: STAGING WRITTEN EVIDENCE IN EARLY MODERN DRAMA By Lisa M. Barksdale - Shaw Tainted Proofs examines how drama presents stage properties, like letters, contracts, and wills, in the early modern theatre. I argue that the playwrights, William Shakespeare, Ben Jonson, and John Webster, depict these written documents in their false, illegal or illicit state to monitor the status of their culture. Within this period, these legal instruments develop an evolving sense of the importance as e vidence, particularly written, as a means to reveal injustice and critique individual rights. At this time, the law, through its jurists and its court, privileges the place of written documents as a credible and reliable instrument used in many legal cause s. However, the theatre highlighted their fraudulent and manipulated state hence, they become tainted proofs. This study of written evidence builds on the work of Subha Mukherji and Lorna Hutson as they consider the rhetorical nature of evidence. In my cha Titus Andronicus , The Merchant of Venice , and Richard III Volpone , and John , I demonstrate that no matter what facet of society these plays explore , every piece of written evidence emerges as susceptible to a potential illicit taint, which interferes with attempts by the citizenry to obtain justice and by the sovereigns to embody truth. The pieces of corrupted evidence on stage tainted and untenable do not conform t o the classical ideals of evidence used to levy justice to protect society. Nevertheless, they demonstrate how the jurists as well as people in society have to struggle to obtain, define, and safeguard justice via the use of written evidence through case l aw, statutes, and treatises. In each chapter, I focus upon how the conflicted object, both material and legal, intervenes with justice, pinpoints the existing flaws iii in this burgeoning body of evidence, and demonstrates a system of deploying deficient writt en evidence. I argue that written evidence possesses several key moments in its material, legal life, legal briefs, bonds, wills, warrants, and indictments, which identify, define, and manipulate the relationships over which the documents reach. Ultimately, they serve as warnings, and remind their audiences of the need for further safeguards in the justic e system. iv Copyright by LISA M. BARKSDALE - SHAW 2015 v In memoriam African proverb. To the women on whose shoulders I stood and whose i nflu ence inspired my calling planted by my grandmother , C lara Pittman Hall (1904 - 2002), groomed by my mother , Frankie H all Barksdale (1937 - 2012), and expanded by my aunt , - 2014). vi ACKNOWLEDGEMENTS Tainted Proofs emerges out of the wisdom, guidance, patience, and stalwart support of my courageous and astute chair Jyotsna G. Singh and my amazing committee members Tamar Boyadjian, Stephen Arch and Edward Watts. I would like to extend a spe cial thanks to James Boyd White, Thomas A. Green , Karen Cu nningham , Mary Lou Fellows , Kristen McDermott an d especially Sir John H. Baker for their graciousness throughout this process. I will always be grateful to all of my colleagues and supporters, particularly Jackie Watson, at the conference, - Telling in Renaissance of St. Andrews, Scotland, as I began writing. I would also like to thank Valencia V. Moses, Shannon Sears , Jennifer Toms, Tonya Braddox , Keith B. Hall, Michael D. Barksdale, Lauralean M. Sims Beatty, Elizabeth A. Ward, Mary L. Agee, Le ssie E.T. Jabari and Judith Dunn for their immense support while writing this dissertation. I truly ap preciate the resourcefulness of Agnes Widder , Humanities Bibliographer in British / Irish and French History and Medieval and Renaissance / Early Modern S tudies , Amy Blair, Copyright Librarian, both at Michigan State University Libraries and Rose Rice , Reference Librarian, at Bridgeport Public Library. I would like to acknowledge all of the patience and the support of my friends and families, including my G .W.T. and N.C.J. families. I would also like to extend my appr eciation to Essie Martin Harris, Arlinda Ardister Wickland , and Barbara Jones Clarke for forging those giant steps long before me. I would like to thank the Honorable Patrick M. Meter of the Mic higan Court of Appeals, the Honorable Fred L. Borchard of the Saginaw County Circuit Court, and my Saginaw County Courthouse family, especially Patty Jones - Wise, for their unyielding support. This project could not have been completed without the help of t he MSU Department of English, The Graduate School, the College of Arts and Letters, the International Studies and Programs, the Newberry vii Consortium, the Association of COGIC Business Owners, and the Centre for Mediaeval and Early Modern Law and Literature at the University of St. Andrews, Scotland . Of course, I thank God for my growth during this journey. I thank my father, Desse C. Barksdale, who encouraged me in my youth to make my dreams boundless. Finally, I thank my champion, favorite critic, most arde nt supporter and fan, my husband, Sammie R. Shaw, Jr., who always goes above and beyond the call of duty for that I am forever grateful. viii TABLE OF CONTENTS xi Chap Titus Andronicus Indictment, Apparent Authority, and Manufactured Treason in Richard III .. plea / Of forfeiture, Remedies in The Merchant of Venice . Ch apter 4: Volpone Chapter 5: Libelous Brief, Sexual Reputation, and Legal Advocacy CHAPTER 1 Titus Andronicus 21 FIRST SCENE: 2.2.1 : .. s .. SECOND SCENE: 2.2.246 : ... Truth - THIRD SCENE: 4.3 and 4.4 : ... Conclusi CHAPTER 2 Indictment, Apparent Authori ty, and Manufactured Treason in Richard III SCENE ONE : 3.6: The Presentat SCENE TWO : 1.3.344: Richard Delivers the Warrant for the Duke of Clarence ... 113 .... ... ix ... SCENE THREE ... . The . .. .. . . CHAPTER 3 plea / Of forfeiture, of justice and his bond Remedies in The Merchant of Venice 141 . B Breaking the Bond, Complicating Contractual Terms , .... THI Co CHAPTER 4 Proving Fraud in Will Contests in Volpone 212 . PART ONE: 1.3: Compro mised Testamentary Intent . PART TWO: 3.9, 5.2, and 5.3: The Contest of Wills and the Reading of . .239 .. .. .250 . . 261 CHAPTER 5 Libelous Brief, Sexual Reputation, and Legal Advoca cy The . 263 .. x .. .. The Neopolitan Law Office .. .. SECOND SCENE: Legal Ethics: Avoiding the Appearance of Impropriety ... . 299 Precedent i EPILOGUE: TAINTED PROOFS . .328 APPENDIX 335 . . . xi LIST OF FIGURES Figure 1 Anonymous, Complaint and Lamentation of Mistresse Arden of Fervasham, 1633, Woodcut, © The British Library Board, RoxIII.156 , EEBO, Wing / 2123.2:156 - 157 Figure 2 Nicholas Throckmor ton Deposition, 1554, Paper, National Archives, Author. Figure 3 Frontispiece for Shakespeare's The most lamentable Romaine tragedie of Titus Andronicus, colour applied later, 1594, Paper, Folger Shakespeare Library, EEBO STC/718:03 Figure 4 Mary Queen of Scots Letter to Henry III of France before Execution, 1587, Paper, National Library of Scotland, NLS Digital Gallery Figure 5 Henry Peacham, The Peacham drawing, 1595, Paper , vol . I from f. 15 9 of the Harley Papers at Longleat, Library of the Marquis of Bath at . 40 Figure 6 Edward Coke, The first part of the Institutes of the lawes of England. Or, A commentarie upon Littleton, not the name of the lawyer onely, but the law it selfe, © The British Library Board, 508.g.16 , EEBO STC/770:04 . . . ..44 Figure 7 William Vavasour's untrue statement written in presence of Lieutenant of the Tower, 23 March 1605 - 6, Paper, The Identification of a Stra nge Writer of the Anonymous Letter to Lord Monteagle, Project Gutenberg 51 Figure 8 16th Century Scribe, Woodcut, Luminarium Encyclopedia Project . Figure 9 Francis Bacon, A declaration of the practises & treasons attempted and committed by Robert late Earle of Essex and his complices, against her Maiestie and her kingdoms, 1601, Paper, Huntington Library and Art Gallery, EEBO STC / 1338:09 104 Figure 10 Robert Devereux Earl of Essex, The arraignment, tryal and co ndemnation of Robert Earl of Essex and Henry Earl of Southampton, 1679, Paper, Huntington Library and Art Gallery, EEBO Wing / 805:37 ..112 Figure 11 Charles I, By the King, a proclamation concerning some illegall warrants lately issued into seve rall places in our counties of Buckingham and Bedford, and other counties, under the name of the Earle of Essex, or by his pretended authority, 1643, Paper, Bodleian Library, EEBO Wing/1629:8. .. .130 Figu re 12 Death Warrant, Mary Queen of Scots, 1587, P aper, Lambeth Palace xii Library, MS 4769 f.1r. .. Figure 1 3 Execution Warrant for Charles I, 1648 /9 , Parchment , Parliamentary Archives HL /PO/JO/10/ 1/ 297A, British Library ... . 136 Figu re 14 Anonymous, A List of the names of those pretended judges who sat, and sentenced to death, our sovereign King Charles the First, 1649, Paper, Huntington Library and Art Gallery, EEBO Wing/ 13 7 F igure 15 Royal Proof of Payment, £20, to Will Kempe, Will Shakespeare, and Richard Burbage for two comedies performed before Queen Elizabeth I by Lord Chamberlain's Men at Whitehall, March 1594, Paper, The Public Record Office in London, Wordpress .. .146 Figure 1 6 Flemish painter, Quentin Massys, Portrait o f a Man, 1510 - 1520 , Oil on Panel, Scottish National Galleries, National Galleries o f Scotland , NG 2273 ..................................................................................................... Fi gure 17 Anonymous, A true discourse of al l the royal passages, tryumphs and ceremonies, obserued at the contract and mariage of the high and mighty Charles, King of Great Britaine, and the most excellentest of ladies, the Lady Henrietta Maria of Burbon, sister to the most Christian King of Fra nce, 1625, Paper, Huntington Library and Gallery, EEBO STC / 1342:16 . Figure 18 Frontispiece of Ben Jonson's Volpone, or The Foxe, 1607, © The British Library Board, C.34.d.2. frontispiece , EEBO STC 2 nd (ed.). / 14783, Greg / I, 259 (a) . . Figure 19 Henry VIII's Will, 1546, Parchment, The National Archives, Kew, Richmond, Surrey, E23/4, fol. 16v Dry sta mp register, SP 4/1 membrane 19. 217 Figure 20 Frontispiece for Henry Swinburne's A Briefe Treatise of Testaments and L ast Willes, 1591, Paper, The Universi ty of Michigan, EEBO STC/977:05.. 228 Figure 21 William Shakespeare's Will, 25 March 1616, Paper, Shakespeare Birthplace Trust, f.22v, The National Archives Kew, Richmond, Surrey.. .246 Figure 22 Legal Brief for a De fendant, 1654, Paper, J.H. Baker .. 264 Fig ure 23 The unfailthful wife, Woodcut, Nuremberg, 16th century: colour applied later. Reproduction copy: E.Fuchs, Illustrierte Sittengeschichte, Renaissance, Mu . F igure 24 Frontispiece for The Devil's Law Case by Webster, 1623, Paper, The New York Public Library, EEBO STC / 944:17 1 INTRODUCTION: TAINTED PROOFS -- Gardiner (5.2.61 - Henry VIII (All Is True) (1613) In this dissertation, I examine early modern law and literature specifically, English drama to analyze how theatrical and historical moments interact, where written ev idence functions as a legal instrument within the evolving legal and social structures in the period. My inquiry begins by exploring how drama represents and recreates the structures and the processes within the law of evidence, exposes its vulnerabilities , and contemplates its potential safeguards. In order to understand written evidence, I analyze its condition legal and material on the stage. My examination of the legal evidence analyzes its creation, its validity, and its authority, as it is represented on the stage and in those legal discourses of the period. In its material condition, I uncover the physical handling of written evidence, its movement from one space to another, and its exchange from one character to another. In following the material mov ement of written evidence as props, my discussion investigates several key moments in the plays in which the legal ramifications of the deployment of written evidence intersect with the imperatives of plot and character. It is striking how many plays of t he period tragedies, histories, comedies, and tragicomedies 2 with the law and its legal processes. Thus, written evidence, a crucial aspect of the early modern legal system, affords the playwrights a novel way of dramatizing the pervasive use and perhaps more importantly, the potential flaws and pitfalls in presenting, literally a piece of paper with the force of law. Instead of representing truth, transparency, and authority, I demonstrate that these plays highlight the potentially fractured nature of legal evidence on the stage. By fractured, I mean the evidence, presented in written form, usually possesses some element of falsity, manipulation, illegality, or illicitness. Wh ile represented as ostensibly true and authentic, the legal instrument and many times the entire play. In this way, I find that following the path that this stage prop (and legal, written evidence) corruption enters the drama and the plot. 1 While typically there arises one character, like Shylock and his bond, w ho arguably seems indelibly associated with the prop, I do not only focus on these characters, rather I show how the object, the prop, which is often handheld, becomes imbricated in the actions and the motivations of the characters. In this engagement, wit h the role of written evidence in the plays, I have illuminated the complexities of early modern laws governing written evidence and its uses ranging from fraudulent uses of wills, indictments and warrants based on falsified evidence, among others. As I st ated previously, these objects, as stage properties, move plays a nd this dissertation. Within these movements, I focus on key moments, where characters 1 Within these chapters, I discuss written evidence in part as a stage property, so this project is in debt to the scholarship of Douglas Bruster, Jonathan Gil Harris, and Natasha Korda. 3 present and/or engage with written evidence as these props on the stage, and offer or confront these tainted documents. To be specific, written evidence serves as proof of murder plots in Titus Andronicus (1594), treasonous plots in King Richard III (1597), broken contracts in his The Merchant of Venice Volpone (1605), The Dev (1623). 2 I emphasize some key scenes in each play that discuss, reference, create, deliver, exchange, and execute written evidence. The mobility of the stage prop emerges as a dynamic, conspicuous, and complex object in the drama. Each stop i n the major events of its life history brings further complexity to the object, and its role in the unfolding legal, political, and personal drama. 3 Furthermore, these hypothetical enactments of the legal practices offer a lens for examining the complexiti es and pitfalls as they were negotiated in the various legal settings of the period. For instance, some characters plant written evidence in Titus , manufacture it in Richard III , falsify and duplicate it in Volpone , threaten to destroy or dismiss it in The Merchant of Venice , and tear it in with all these physical actions being played out on the stage. Specific moments materialize as similarly compelling where a character reads the document staged before a criminal or a civil court, sta ged in a soliloquy after an execution, or staged before a group of potential heirs in a will contest. Charting how the course of the objects unfolds across each drama, evoking reminders of how these objects have the force of law offers a distinct way wheth er false or illicit to read each object, each play and further complicates the role of written evidence in the legal system in this 2 For Shakespe Volpone and , I use the date when the plays were published. For all five plays, they have dates of performance, which precede their recordings an d their publications. However, these dates seemed the most consistent among the critical scholarship. 3 My discussions of these key moments of the stage properties as life events draws on the work of Arun Appadurai The social li fe of things . 4 dissertation. In these unfolding engagements, the drama significantly explores and illuminates the complex and often problem atic role written evidence plays within the legal practices of the period. As I examine these disparate moments in the plays, I find that this analysis functions as a commentary beyond the current drama, but implicates this early modern society in Englan d. At this time, the law - courts became immersed in litigation, which involved disputes over these written pieces of evidence like wills, contracts, and indictments. The validity of these legal instruments became an important question during this period fro m the cases to the statutes. Within the issues of validity, the written evidence, through its theatrical and legal embodiment, materializes as an instrument, which dictates both the personal and the professional lives of the early modern individual. What g rows out of this project serves as a lens by which to study the cultural shift in how individuals conduct themselves in their personal correspondence, commercial transactions, estate planning (or wills), criminal prosecutions, and ecclesiastical proceeding s. In this Figure 1 Anonymous, Complaint and Lamentation of Mistresse Arden of Fervasham, 1633, Woodcut, © The British Library Board, RoxIII.156 , EEBO, Wing / 2123.2:156 - 157 . 5 dissertation, I have chosen various dramas from different playwrights whose Elizabethan and Jacobean performances span from 1590s to 1620s. The use of legal plots to dramatize the affairs of the day on the early modern stage is remarkable in i ts frequent use. These early modern playwrights capture what seems as a mere detail to most, but as they imagine an entire tale of love, conflict, and intrigue. For instance, in the Arden of Faversham (1592), a wonderful tale is weaved surrounding several murder attempts, theft, adultery and ultimately, a successful murder. 4 The play crafts a convincing murder investigation, a large - scale manhunt to pursue its suspected murderers, and finally an arrest warrant to secure the criminals to await their judgment . To understand my use of evidence, I should point out that the rules of evidence guide what type of evidence will be admitted for review by the courts. In some circumstances, the court finds that certain evidence cannot be accepted as (or admitted into) evidence, for it possesses some flaw, will allow the evidence to be admitted and ultimately use to make a final judgment in a case. While I keep this unders tanding of evidence at the backdrop of this dissertation, I complicate my use of on the stage across several dramas. These pieces of evidence may occur within the courts, but I also look at different settings, which present evidence in and around the courts, churches, theatres, prisons, and people within the early modern community. For instance, these different pieces of evidence implicate several courts functio ning in the early modern period like the common law 4 The chief source for the story for Arden of Faversham Chronicles (1577). See also - 262). 6 courts focused on the strict letter of the law, courts of equity like the Court of Chancery handled questio ns of equity, like fairness to the parties. Sometimes, they heard issues of contracts and other times they addressed issues of wills. This venue became the jurisdiction for many cases, which the common law courts declined to address. 5 Even ecclesiastical c ourts heard some contract cases, but their jurisdiction dealt mostly with more moral issues like adultery, bastardy, sodomy, and others, which concerned the church. Although I examine the intersection between these courts and these dramas, these plays do n ot exactly mirror the procedure or the judgment of these courts, but provide illustrative historical examples. I am also considering evidence in a more general sense when revealed to litigants, attorneys, court employees, servants of the crown, etc. In add ition, I utilize moments where the evidence may not appear on the stage, but is discussed by those directly in contact or affiliated with the evidence and those who merely surround evidence, even if tangentially. 6 Despite the strides that these early mod ern courts made in the field of evidence, some (Baker 582) (Macna ir 15 - 21). 7 During the medieval period, most evidence used in trial consisted of oral testimony, but the period also saw the emergence of predilection for writing (Macnair 92). , depositions, and - 163). 8 And, in the late sixteenth century, the courts placed both an 5 contract suits in Chancery. Many litigants found redress in this court, which they could not find in common law courts (372). 6 Dark Matter: Invisibility in Drama, Theater, and Performance . 7 See also Hemholz at 243. 8 she does not focus upon written evidence (206 - 232). 7 emphasis on written evidence and an expanded nature of the trial proceeding where the summary trial (i.e. an abbreviated proceeding) was less typical (Bellamy 158 - 159). Given the development 9 Even earlier, there arose corroborat ion that written evidence, was alive and well as found in the Statute of Uses, which required written proofs for inter ests in land, in 1535 (Moffat, Bean & Probert 39). 10 Broadening the scope beyond land, the Statute of Frauds and the parol evidence rule re quired certain contracts to be in writing. In particular, the Statute of Frauds required that contracts must be in writing, which could not be performed in one year and contracts where one party served as a surety for ter this point, common law jurisprudence became synonymous with a rigid reliance on proof in written form. 11 To accomplish this study of written evidence, I investigate five different areas of the law criminal, treason, civil, probate, and ecclesiastical a nd five different pieces of evidence letters Titus Andronicus , warrants and indictments in Richard III , bonds in The Merchant of Venice Volpone Law Case . Across these d ifferent fields of law, I demonstrate how these dramas create and recreate the law in drama from 1591 in the Elizabethan period to 1623 in the Jacobean period. 9 The first draft of the Statute of Frauds was written by Sir Heneage Finch (later Lord Nottingham), which was 10 Though the text by Bedford, Davis & Kelly (204) states that the statute was passed in 1540, I will defer to Moffat, lso agree with this text on trusts law. See also Baker (283 - 295). 11 judicial acts form time to time, which have been set down in the books we term (Helgerson 76) 8 In each of the plays, I investigate this different areas of the law to study written evidence fr om different perspectives, settings, legal and material inquiries. These disparate fields of law raise issues, which interrogate and dramatize the workings of criminal law, like murder and treason, civil law like contracts, probate law like wills, and eccl esiastical law, like adultery and bastardy. While each field has its own distinct laws, they each require the use of written evidence to prove a case. They each require a critique of the evidence to determine its admissibility, validity, weight, and fairne ss. Ultimately, each piece of evidence will be useful in determining a judgment at the end of the case. However, for each of the plays, which I have chosen for this project, the written evidence arises he evidence does not offer truth and accuracy, which we might assume when litigants present evidence before a court, church, or other institution. Each piece of evidence under review grows problematic during the course of its movement within each play. In spite of the reputed reliability of written evidence, each legal instrument arises as false, manipulated, or illegal. of scenario. In the criminal case, we witness the wrongful conviction of two brothers whose guilty verdict before the newly placed emperor and his calculating empress; the falsely planted letter of confession functions as their death knell in Titus Andronicus . In the treason cases, we find two different men who are ultimately executed for acts, which neither commits; their lives are swiftly dispatched with a manufactured indictment and a secreted warrant in Ki ng Richard III . In the contract case, a dispute arises when the three - party surety agreement is broken; unable to resolve the matter, the injured party takes the matter to court for a decision before the Duke in The Merchant of Venice . In the probate case, 9 transferring their own property to another runs afoul when the plot become exposed by other wrongs, like attempted rape and a disinherited son in Volpone . The final case on this docket involves an adul tery and bastardy case within an ecclesiastical jurisdiction; a legal brief summarizes the alleged illicit acts of the confessor, but facts unfold where she is not an adulteress, nor is her son a bastard in . Each of these disparate pie ces of evidence the letter, the warrant and the indictment, the bond, the wills, and the legal brief reveal the individual plays as distinctive. The letter offers the audience an examination into socio - personal communication and how the document may be uti lized for illegal reasons. The warrant and the indictment expose the problems with the procedure for adjudicating treason cases. The will demonstrates how these instruments may be manipulated by deceptive testators and heirs. The legal brief illustrates th e compromised inner - workings of the law office consultation and the problems of professional ethics. These five different cases demonstrate that written evidence had a wide - spread and pervasive influence across the spectrum of early modern life, stressing the link between moral choices and institutional injunctions. Hence, how evidence is created, utilized, and presented in court becomes important and perhaps life - altering for some litigants. For several reasons, I also tell the story of this dissertation t hrough drama by investigating written evidence on stage in its physical manifestation as a paper prop. Across several fields of law like contracts, probate, criminal, treason, and ecclesiastical, I uncover what the legal instrument appears to represent tru th, authority, and validity by contrasting what it actually of safeguards, and susceptibility to tampering by those who circulate the evidence at key momen ts in its creation, its delivery, its exchange, and its execution. While analyzing this prop for the stage, 10 I find historical examples of bonds, wills, death warrants, and other evidence for comparative analysis and case law, commentaries, and statutes, li ke the Statute of Wills of 1540 and the Statute of Frauds of 1670. These materials help to illustrate the relationship between the legal and cultural work and discourses during this period. One path of inquiry involves the evolution of this stage object w ith its material and legal attributes. On the stage, rather than within a pamphlet or piece of poetry, the audience may witness the trajectory physical and legal across the play. I am reminded of the physical concept, called tells the story of its past by the small elements, which it has accumulated along the way much like the static cling in clothing. The same physical dynamic emerges in the drama for the audience. Some watch enraptured by these peculiar objects, which appea r and disappear across the several acts of a play. These objects possess their own story, much like the characters, which move them. 12 In this project, I give the object prominence, particularly its legal implications, for it is this story within these dram as, which tell a story that one character alone cannot for many times, this character has not travelled in all of the places and spaces, where presence and sometimes its essence persists with its material and legal moments throughout the drama. Drama also allows the playwrights and his players to tell a story, or rather enact striking moments, or cautionary tales regarding the legal and illegal or the ethical and the illicit, which speak to the current socio - 12 See the discussion of the subject and the object for this period in Margereta de Grazia, Maureen Quilligan, and Subject and Object in Renaissance Culture (1996). Where I place emphasis on the legal King Lear (17 - 42). 11 Edward II Richard III , playwrights remind the state why it is important that the sovereign is a good steward over his or her people; Richard III , in particular, reminds the audience of the covenant between a king and his subjects and how it can be subverted by distorting the legal The Spanish Tragedy or Ti tus Andronicus , the playwrights craft tales, where the sovereign makes a self - interested misstep in meeting the needs of his or her subjects. Notably, flaws in the sovereign, Saturninus, are exposed by his enemies, distort his legal judgment, and bring an end to his tenuous reign. Yet, in the comedy, like Volpone or Much Ado About Nothing , the people and their love for each other are celebrated through acts , respectively. While in tragicomedy, like or The Merchant of Venice , the playwright complicates the drama by mixing his narrative with the best qualities from each of the other plays; the result is a tension - filled drama, where characters are neithe r entirely pure, nor entirely dark. In , wanton conspiracies by Leonora result in bastardizing the legal court for her own selfish agenda, yielding arguably flawed judgments, and markedly shifting T he representation of written evidence on the stage serves as an important phenomenon, showing how the legal transactions, which individuals are a part of, in society, develop a certain cache in the realm of the theatrical. As the contract is signed, or the will is drafted, the audience is before its legal retelling in the courts. Even if the story is retold dramatically in the theatre or legally in the courts, the theatre brings an additional element - a showiness to these writings, which appear on the stage to prove or dispro ve a fact. In this sense, 12 written evidence functions as larger than a legal case. It becomes a part of a social presentation and conversation for the masses to critique, replicate, and potentially duplicate. While my interest in the law of evidence began i n law school, this interest came to fruition when I realized that its complexities could be further expanded in its application to litigation. This dissertation arises out of this merger of evidence and litigation. For this reason, I build this project on the work of Barbara Shapiro whose examination of evidence and its classical foundation amongst rhetoricians like Aristotle and Cicero. Her discussion of inartificial proofs, like written evidence, and analysis of the weight of such evidence with circumstan tial evidence and the burden - 72). In a similar way, Subha Mukherji propels the discussion of this field of law into e arly modern literature with her work Law and Representation in Early Modern Drama . Remarkably, she reinforces the merger of law and literature, as she proximity serves as sites of exchange between the law - courts, the law students and the theatres, the playwrights, and the players (175). Across several plays, Mukherji analyzes the representation of evidence in marriage law, adultery, and judgment. While her monogra ph emphasizes the representation of rhetorical evidence, she contemplates how the exchange of love letters reveal adultery and its process of dissemination within a community and its legal implications as proof in a legal proceeding (56 - 61). Within these d iscussions of adultery and the courts, Mukherji scurtinizes the role of women and their own access to this legal realm. In addition, Lorna Huston marshals the law of evidence and critiques its presence on the early modern stage with forensic rhetoric in Th e Invention of Suspicion . She also finds a nexus between evidence and early modern culture, particularly in the expanded roles of both the Justices 13 of the Peace and the members of the jury. Even further, Hutson credits the gradual awareness of evidentiary 2 Henry VI where she compares his monologue to a corone - Oedipus Terrance Cave and John Kerrigan (Jordan & Cunningham 144 - 145). Hutson uses this analysis to examine the early modern play - texts across several genres. The way each of these scholars approached the intricacies of evidence by combining its classical Roman heritage along with early modern d rama allowed me to arrive at this dissertation project on written evidence. I, like (16). Yet, I also explore evidence beyond the courtroom and try to use the stage and its distinctively theatricality as a way of discussing institutional discourses, expectations, and struggles. While his focus does not include evidence, the work of Luke Wilson in his analysis of contract law also influences this dissertation. H e adeptly finds a way to intervene between law and nson and the Law of Contract (68 - 113). His Bartholomew Fair opens new ways to think about contracts and comedy. In addition, the work Treason by Words also shapes my understandings about increased the jeopardy of individuals in this sovereign nation. Lemon makes this study come alive with her analysis of scaffold speeches, theatre history, and early modern drama. Her use of pamphlets and other historical artifacts broadened my research possibilities. Although several of 14 these scholars intervene with evidence and writing, none of these critical works have critiqued specifically what contribution written evidence makes to early modern jurisprudence, where written evidence reveals its place as both an identifiable safeguard and a problematic instrument open to manipulation within th is period both in the theatrical courts, and by implication the legal courts as well. My study emerges as unique where this analysis emphasizes only written evidence, enabling scholars to think anew about the range and variety of documents and papers, whic h constitute evidence across different hypothetical situations staged in various plays. In this dissertation, I will emphasize how these dramas display compromised, written within these way onto the dramatic stage in some kind of stained, sullied, disreputable, dishonorable, contaminated, corrupting, or depraved manner. The eviden pieces of evidence in their separate contexts both the plays and the evidence have contexts. Each moves through different hands and locales (Harris & Korda 18). For the plays, these contexts include varied genres, in terms of tragedy, comedy, tragicomedy, and history. For the evidence, the contexts include the different types of proofs like letters, contracts, wills, warrant s, and briefs. Each of these proofs, in a tainted state, complicates a perceived, legal status. This dissertation looks at how the dramatic finds a way to discuss, represent, and critique legal proofs. To clarify the framework for Tainted Proofs , the order of this dissertation complicates this story of evidence in a provocative way. Several threads are addressed in the logic of its progress. In one of its initial threads, I divide the project between those chapters, which represent state action versus priva te action. The state action, through a king or his agents, addresses its fear treason 15 Titus Andronicus (1594) and Richard III (1597) . In these two dramas, there exists an identifiable state - sanctioned execution. While the sons of Andronici are explicitly tried for the treasonable offenses, not unlike the executions of Lord Hastings and the Duke of Clarence in Richard III . The battle of proofs for Titus Andronicus lies in the enormity of the vengeance that Aaron seeks in his well - crafted letter, yet for the history play, the indictments and warrants evolves as a function of power. These perilous plots rely heavily upon their state actors like Ta mora Queen of the Goths former captured slave now Empress of Rome, and Richard, the maniacal, impatient brother in waiting and soon king. The second half of this dissertation tells the story of written evidence from the perspective of the private action o f the individual. In each of these remaining chapters, there exists an individual desire to def eat the opponent by using calculating means. This remaining portion of the story begins with the third and final Shakespearean drama, The Merchant of Venice (159 8). 13 Titus Andronicus Richard III bond is not libelous, yet the calculating means manifest themselves in terms both unconscionable are bloody, and arguably deadly. Yet, surprisingly, this tragicomedy concerns itself with terms of equity in its business and personal relationships. Within this second half of the dissertation, Jonson and Webster design their dramas, which reflect the Jac comedy Volpone (1605) combines a critique of personal relationships a nd financial advancement as well . Volpone attempts to advance his wealth by amassing fraudulent wills. Hi 13 John Russell Brown, editor of The Merchant of Venice , Arden edition, Second Series (2001) discusses th e potential date of play; he suggests that the play was written after 30 July 1596 but before 22 July 1598 (xxi - xxvii). 16 (1623), uses the public space to distort reputations as well as to outwit the opponent. Leonora uses alous taint against herself and her son to divest him of his rightful estate and slander him within this Italian community. In this dissertation, I argue that the period illustrates some persistent problems with the uses and the deployments of written evi dence through the presentation of these stage properties across the works of three playwrights Shakespeare, Jonson and Webster. The evidence is displayed in its stained, deceptive, and manipulated state. This dramatization of written evidence is further co mplicated by its material embodiment as a stage property with its own history, context, and relevance. In particular, each chapter demonstrates a different context: the personal letter during the course of a murder trial in Titus Andronicus , an indictment and a warrant for the executions of Lord Hastings and the Duke of Clarence, respectively, for treason in Richard III , The Merchant of Venice , wills in probate proceedings Volpone , and a libelous bri ef in preparation for an adultery - . Each chapter distinctively contributes to this argument; that is, each chapter possesses a specific rationale, which reveals a definite and individual personality. Chapter 1 Titus Andronicus Within Titus Andronicus, I offer a critique of trial and appellate rights within several key scenes, which plays o ut this legal dilemma in individual and political moments of high drama. I argue that planting flawed evidence breeds conspiracy, admitting flawed evidence corrupts the trial court system with its summary conviction without any substantive advocacy on beha lf of the defendants, and denying substantive judicial review by the law - maker, thereby dismissing valid 17 claims for redress as frivolous. 14 from the other, this analysis suggests that false ev idence, as both a legal and theatrical exhibit, is letter, I render these scenes to ferret out the characters, critique their motives, unravel criminal consp iracies, and identify the seeds of trial advocacy (i.e. field to make attorneys and other advocates more efficient at court). These criminal conspiracies surround the production, the presentation, and the consideration of written evidence for trial and app ellate review within the play. As the play conducts the trial and appellate review, we view the presentation and the reading failed advocacy on behalf o f his sons, Quintus and Martius. After the unsuccessful trial, the aerial early modern appellate system. Apparent Authority, and Manufactured Treason in Richard III as flawed documents, and expose how these legal and cultural instrumen ts negotiate themselves within early modern England. At once, the indictment and the warrant in Richard III reveal the trouble with these documents of death in their construction, authority, and use to perpetuate treason, instead of functioning as a site f or transparency (i.e. truth, justice, and liberty). With their legal and material presence, these documents expose the oppressive regime of Richard III and the early modern period, as it struggled against kingship and individual. These locales of site, 14 Though beginning its prosecutions with an information, the Court of the Star Chamber tried individuals summarily without a grand jury or a trial jury. By the Stuart era, the court focused on criminal acts and enforced a variety of imaginative punishments (e.g. slitting noses, severing ears, etc.) (Baker 137). 18 dis tribution, and execution evoke for these legal documents a separate, physical life from their creators, users, and distributors that function as both culturally and politically relevant. With the of Clarence. I also consider the conspicuous request for the warrant by the assassins, the request for evidence by the Duke of Clarence, and the ultimate execution of the death warrant. plea / Of forf eiture, of justice and his bond : The Merchant of Venice Wit hin The Merchant of Venice , the representation of the contents and the usage of the - personal, cultural, economic, legal and political relationships, through contract law, particularly at t he stages of negotiation, breach, and litigation within the courts. While focusing upon written evidence, I demonstrate how moving between different people an d places within the drama, I demonstrate how the bond emerges as legally, materially, and socially as both a divisive and a unifying device. This piece I exp actual falsity within the bond itself. I - ducat loan from Shylock in this thre e - party contract. If Antonio fails enalty clause, and the methods of breaking the bond. I also compare 19 from repayment of Shylock (i.e. restitution) to actual performance of the contract (i.e. specific performance) for the court to find a resolution in the matter of Shylock versus Antonio judgment against Shylock and the issues of equity ( i.e. fairness) and whether the court successfully applies these principles. Chapter 4: Volpone Within this chapter, I argue that the early modern will process was fraught wit h illegality fraud, bribes, confidence men, and criminals. As designated by common law, land passed automatically to the eldest son, and could not be bequeathed by will. However, the Statute of Wills of 1540, passed by Parliament and accepted by Henry VIII , allowed land to be bequeathed by will for the first time. 15 Now, individuals could determine for themselves to whom they wished to devise their estates, yet within all of the will - making, problems arise. Ben Jonson represents the problematic results of wi ll formation in his comedy, Volpone. Within the play, the written document, with legal and material properties, grows compromised and its fraudulent state exposes uches upon this very anxiety. I study the significance of the memorialization of the legal document, its compromise by fraud, and the intention of the parties to address this question. The will operates as a stage property and the key piece of written evid ence on this Jacobean stage. I utilize key moments in the material formation of the will, like its creation, its exchange, its reading, and its 15 s in his The Third Citizen: (245, note 21). 20 references. By investigating these moments in the life of the will, I reveal the evidentiary implications of thi s legal device. I analyze capacity. I unfold the multiple schemes and the legal and ethical question over bribes and gifts. I , I analyze the perpetration of fraud on the court by the will contest and the crimes and civil liabilities, which result, as I consider the two trials , of the characters as a response to the anti - theatrical critics, and determine how these moments effect the role of the will in this early modern era. Chapter 5: Sexual Reputation, and Legal Advocacy in John Webs I argue in this chapter that written evidence in the form of a solitary brief in Law Case offers a critique of the ecclesiastical courts and its litigants. I maintain that practicing libel corrupts the ecclesiastical system, and exposes its weaknesses when it comes to the evidence upon which cases are litigated and the litigants and litigators who bring these actions to the court. By illustration, this argument suggests that, in several key scenes, false evidence, is p roduced, legal brief to lie to resentation of the practice of libel, the libelous - workings of the lawyer - client consultation, professional ethics, and the character of the legal representation. I consider this case of Leonora versus Romeli o, the discussion of adultery and bastardy, and the notion of precedent for this drama and the early modern era. 21 CHAPTER 1 Titus Andr onicus Introduction Titus Andronicus (1594) wrongfully convicts Martius and Quintus, the sons of Andronicus, of murder , as the key source of evidentiary proof. 16 In its handling of this letter, the court also demonstrates its flawed process in the review of evidence. Both the legal process and the written evidence emerge as defective and false. 17 Within the play, the letter gestures toward its o wn material defects. For example, written by Aaron the Moor, delivered by Tamora Queen of the Goths, now Empress of Rome, and accepted as truth by Saturninus, the newly appointed Emperor of Rome, the letter shifts what began as a family feud into quick dem ise for Saturninus. I argue that, as an instructive commentary upon this early modern period, this letter, as written evidence and a stage property, exposes murderous conspiracies at the heart of the throne. 18 ves as false and manipulated. This evidence also offers a critique of the ineffective summary trial and the appellate rights for its subjects on the dramatic stage. 19 These swift proceedings unfold as proceedings in name only as no substantive 16 Titus Andronicus (69 - 79). 17 OED ). 18 - ersity of St. Andrews, Scotland in March 2013. 19 - be summarily executed. This power was restricted by common law judges who required at least a su mmary inquiry 22 hearing nor review of the evidence occurs at either their initial judgment, or the later appeal mounted by their father, Titus. This drama highlights the denial of a defense for the accused, where their efforts and their potential legal advocate, Titus, are silenced by Saturninus, emperor and judge in this case of the empire of Rome against Martius and Quintus of the Andronici. This narrative and my analysis demonstrate the problematic state of the law of evidence where the courts inefficiently accepts, reviews, and w eighs evidence without any apparent safeguards to protect the early modern subject. While appealing a case to a higher court should ostensibly provide such protections, this drama demonstrates the perilous path that awaits the individual litigant, who goes to court to contest his case during this period. Serving as an example of a site for legal redress, Guildhall is a historic legal edifice located in the City of London and, like the Inns of Court, has a connection to Rome, as it served as an amphitheater in Brittania. 20 The building was physically connected to the church of St. Lawrence Jewry, which served as the burial grounds in the early eleventh century, where at least two coffins have been dated one from 1046 and the other from 1066; here, at the grave fence where at least one elder tree , according to Nick Bateman (47). It has been suggested that Guildhall was the site of the place of Brutus of Troy. 21 Though no conclusive evide nce exists about the fighting of gladiators and helmet, and a trident are among some of the items, which have been discovered; thus, it is not hard to imagine t hat, for at least two centuries, both men and animals found their bloody end in this (or confession) before the offender was executed. In the fourteenth century, requirements developed for both a formal accusation and trial in regular court (Baker 573). 20 Shakespeare mentions Guildhall twice once by Richard III and the other by Buckingham in Act 3.5 in Richard III . 21 The prose Brut: the development of a Middle English chronicle (1998). 23 London arena (39). These warring factions invoke images at once primitive, powerful, and bestial. Later, in the fifth century, the British revolted against Roman rule, aba ndoned Roman laws, and 22 Then, in the Middle Ages, the structure served as a The Canterbury Tales Confessio Amanti s ( Confessions of a Lover ). Not long afterwards, in the 16 th century, Guildhall functioned as the setting for different early modern era. For the most part , the se accused, who came before this court, were without the tools to mount a proper legal battle. Historically, the ability of these accused to confront successfully the judging body about the quality of the proofs set forth in a case was rare. Consider, 22 In The End of Roman Britain (1998), Michael E. Jones notes an interesting scholarly debate, which exists addressing whe ther Rome merely withdrew from Britain or whether the British expelled the Romans (138). He cites key chapters from The Historia Brittonum (1819). Figure 2 Nicholas Throckmorton Deposition, 1554, Paper, National Archives, Author. 24 several allegations, he is accused of imagining the death of Queen Mary I of England and giving aid and comfort to her enemies. 23 In particular, t he Throckmorton trial relies almost entirely upon written depositions, and reflects an elaborate presentation of flawed evidence. constituting evidence, taken down in writing to be read in court as a substitute for the production OED ). Although the same evidence convicted his brother, John, Nicholas written evidence serve as the source of his liberty. Th e many batches of depositions included the lengthy testimony of multiple witnesses, attested with several signatures, recorded at different times, and by multiple scriveners. 24 - trates the troubles with credibility, impartiality of witnesses, undue influence of the jurors, and the material character of 25 Over the course of the trial, t he court allowed Throckmorton to cross - examine witnesses, and make arguments aga inst any of the deficient proofs. While denied his own counsel and witnesses, the accused challenged the supposed reliability of the depositions, and convinced a 23 In this project, I use the location of certain courts and the cases presented within them to make connectio ns with the drama that I am discussing; for instance, here in my chapter on Titus Andronicus , I use Nicholas through written evidence; for Richard III commercial courts serves my discussion of The Merchant of Venice in chapter three. 24 In 2013, I took a photograph of one such piece (below) at The National Archives in London; it illustrates several long sheaves of faded parchment where the ink bleeds in a reddish hue in one of the forty - four batches of depositions tak Throckmorton case in this project. The batch pictured is Batch No. 1, taken on July 25, 2013. 25 Because of the immateriality of the oral testimony, it was diffic ult to challenge the proofs against an accused; 25 jury of his peers that this written evidence emitted an identifiabl e taint of untrustworthines s in the 26 I argue Such evidence was often represented throughout the e arly modern dramatic works, as in Arden of Faversham The Spanish Tragedy, and other times serving as the sole written , A Woman Killed With Kindness Tamburlaine the Great . These legal exhibits many times operate conspiracy plot, but also, in their duplicitous states, reveal the complex nature of written evidence, In spite of those moments in the sixteenth century when an accused, like Throckmorton, was acquitted because of deficient proofs, the trouble with the sufficiency of evidence persisted. The literature of the period took up this issue, and served as a vital source of replication, edification, and exposition upon th e ways in which these early modern individuals governed their lives. From plays, pamphlets, to poetry, these writers found a way to critique subtly and other times to inveigh fiercely against ineffective governance, specifically as it manifested itself in the corrupted creation and these deployments of written legal evidence. Before I examine how the complications and the issues relating to written evidence unfold in early modern drama, it will be useful to elaborate up on the dynamics and the workings of e vidence in legal discourse, especially cases and statutes dealing with written evidence in the period. As described above, the Throckmorton case operates as an evidential anomaly within its rs an illustrative precursor to 26 The jurors were incarcerated after finding Throckmorton not guilty of treason though eventually released. 26 the later demands during the Stuart era for written evidence, as in the parol evidence rule and the Statute of Frauds (Jardine 113 - 114). The parol evidence rule and the Statute of Frauds provide some safeguards to legal docu ments. For instance, in the Countess of Rutland v Earl of Rutland (1604), Lord Chief Justice Edward Coke emphasized that every contract or agreement should be testimon In this way , the parol evidence rule prohibited the use of any oral agreements promised prior to the written contract, but not included in the document. The rationale for this rule is the assumption that any important part of the agreement would have been included in the contract. In the same way, the Statute of Frauds requires memorialization in writing of any agreement involving land, marriage, guarantors, sale of goods, executors, or one year of performance (A.W. Simpson 96, 599 - 601). These cases and statutes built their foundation upon a premise articulated earlier in (1591), where the courts found that proofs by witnesses were not sufficient in cases concerning w Thus, whether used in treason, property, or estate matters, written evidence evolves as a much more significant legal focal point during the early modern period . The courts and statutes bear out this fact, and the theatres serve a similar function. For example, the dramatic for u m allowed the players, the playwrights, and the audience to enact and react to societal concerns, like the trustworthiness of legal papers, and ensuring the reliability of courts, as a site of redress upon the stage. Much like t he courts, the theatres developed indictments. These papers operate to identify, define, and manipulate the relationships among characters whom these documents reach, and affect in personal and professional ways. Still, these 27 papers were not without their own defects. Like the memory lapses for which Coke w as concerned with witnesses, on the stage too, papers expose their own innate difficulty with proving authenticity, accuracy, and intentions. Hence, another level of safeguards becomes crucial to protect the very documents , which serve to secure early mode rn socio - cultural and commercial equilibrium as a whole, then, in plays, written evidence mediates quite remarkably and distinctively between the personal, th e familial, the sexual relationships and, legal and political transactions. As I will show in my reading of Titus Andronicus in this chapter, sexual intrigue that produces false evidence also has larger political ramifications. Before returning to Titus An dronicus , a brief history in the evolution of written evidence is warranted here. Although the courts during the medieval period expressed a growing concern with the discretionary use of written evidence by individual judges, it is only during the early mo dern era that such evidence became legally mandated by case law, rules, and statutes (Macnair 134, 137). Therefore, there remains an important gap in the critical scholarship. Actual legal mandates for written evidence signal a vital shift in how cases wer e not only pleaded, but tried and successfully litigated in the courts. Some sixteenth century courts, like the Court of Chancery, a prerogative court, even began to transform their trial procedure for recordkeeping, which included how they used and preser ved evidence (Horwitz 3). 27 While common law courts had a reputation for being too stringent in their requirements of written evidence, equity courts like the Chancery demanded written evidence, in some instances, where even common law courts did not (Macna ir 27 Prerogative cou prerogative as opposed to common or civil law (Lockey 9 - 10). 28 149). 28 Still, written evidence became a key point of contention for issues of jurisdiction and competition between the courts. 29 For instance, these courts debated over what evidence would require writing and whether this requirement would be demanded ac ross several courts. Moreover, the increasing presence of the legal document in the early modern courts provides insight into the origins of the rules of evidence (i.e. standard for admitting proofs), the process of evidence gathering, and ultimately of ex hibiting the legal documents before the courts. 30 This process had the potential of affecting every aspect of early modern law whether the case concerned contracts, torts, property, or criminal law, or whether the jurisdiction was in a common law, equity, o r ecclesiastical court. 31 The importance of the legal document, that is, written evidence in and around the courts, is vital. Even more , its presentation on both the theatrical and legal stages also possesses an identifiable cultural significance. While le tter writing arose Wall by Roman soldiers in the first century (Fields 48), the spread of this practice sits squarely within this early modern moment this moment includes the effects of the invention of the printing pr ess and the burgeoning litigation in the courts . 32 Hence, this exchange of cultural and legal 28 instance, Observations the Star Chamber in 15 96 rejected this rule (Macnair 147). 29 Simply put, jurisdiction involved, which court would hear certain types of cases, like ecclesiastical matters. 30 There has been some debate about the origins of the rules of evidence. I agree with Macnair that statut es, case - law, including the State Trials, and treatises contains those origins. I disagree with Langbein that we only see its origins in the eighteenth century (Macnair 19). 31 For the most part, I discuss the case in terms of common law, as was appropriate in treason cases. While this case murder. Still, I later discussion notions of equity in terms of the appellate case in the latter portion of this Tudor Law of Treason (210, 233). 32 These Roman soldiers also wrote secret letters in contravention to the rule against having wives and fa milies (Davey & Moses 40 - 41). 29 material in and between these two courts legal and theatrical suggests not only a socio - cultural and political utility, but a discernible mobility as well. Notably , Subha Mukherji observes: The worlds of Westminster and Southwark, of the Inns and the private theatres, jostled against each other more substantially than - a space shared by sermonists and their audiences; printers and sellers of popular cheap print; crowds stalls from which newsbooks speedily circulated far and wide; students from the Inns; and sellers and buyers of lawbooks and legal texts. (175) This description illustrates the life of people, writing, performance, and representations of legal evidence between the courts, the theatres, and the churches. Though this project is grounded with in the drama of the theatres, I will use the law courts as a way of demonstrating that other sites likewise emphasized the tension created by legal documents as evid ence. 30 As an example of the cultural circulation of this drama, it must be considered t hat Shakespeare writes The Most Lamentable Romaine Tragedie History of Titus Andronicus for January 1594 was abbreviated. Nevertheless, the play moves from perfo rmance at the Rose to Titus would be sold by Edward White by its frontispiece ( below ). Serving patrons, the Earles of Darbie, Pembroke, and Sussex. From here, the play shifts from the p rinters to a much larger audience. Jonathan Bates notes that even if the public could not see the play performed because of the epidemic, they could read this Roman tragedy as both a play and a ballad, Figure 3 Frontispiece for Shakespeare's The most lamentable Romaine tragedie of Titus Andronicus, colour applied later, 1594, Paper, Folger Shakespeare Library, EEBO STC/718:03. 31 with the same name, printed by Danter. 33 White and Mill ington, these cultural and political merchants of paper, could sell these plays and ballads in close proximity to the courts, the churches, and the theatres. Later, in June 1594, the play was also performed at Newington Butts, a theatre Titus Andronicus as late as 1596, the play was performed privately in Rutland (37, 69 - 71). In essence, the play with its concern about written evidence, particularly letters, becomes a carefully crafted vehicle to explore the performative nature of written evidence, and its substantive legal implications across This chapter builds on the work of Lorna Hutson in her examination of Titus Andronicus and its displaced trial, the use of rhetorical evidence, and early modern jury service. She reads t he t structure, using detection and spectacles of legally inflicted pain as demonstration of sovereign power). She also uses Titus Andronicus to distinguish betwe en the participatory open and the adversarial jury trial from the inquisitorial system Foucault describes (e.g. crown - operated versus individual - based accusations) e 33 Ballads and Broadsides in Britain 1500 - 1800 (317 - (tr anscribed 1600 - 1603), as John Lewis Walker discusses in his Shakespeare and the Classical Tradition: An Annotated Bibliography, 1961 - 1991 (684). 32 law courts and the early modern theatres also opens up the remarkable exchange between these 75). This shared concern of these two locales is vital to my project as well. 34 While concerned with written works cannot be overlooked, as he considers the diver se interventions that the letter plays. He - century Venice, the letter - writing culture [Shakespeare] represents is emphatically of the late Elizabethan and Jacobean Titus Andronicus (5). Though each of these scholars make interventions with evidence and writing, none of these works have examined specifically what contribution written evidence, particularly the letter, makes to early mo dern jurisprudence, where written evidence reveals its place as both an identifiable safeguard and a problematic tension within this period in the theatrical courts, though shared by the legal courts as well. The forged letter functions on the one hand as a legal document, but on the other hand, in plays like Titus Andronicus, the letter shows a sign of human duplicity that is played out in familial and sexual relationships. It is neither simply a legal document, nor a mere stage prop, but also functions as a lethal weapon in personal, often violent, dramas on the stage. From the battles fought by the gladiators in Roman and British amphitheaters to those fought by the accused before their 34 he writing of the law in the battles between Bacon and Coke as justices and the writing of theatre through early modern playwrights like Shakespeare. Though Bacon favored the king and Coke favored the law, both legal scholars agreed on the project of writi the new genre of the national history play and then gave that genre a singularity of focus that contributed at once to the consolidation of central power, to the cultural division of class from class, and to the emergence of the playwright Shakespeare himself 33 judges, the wounds are no less striking. Yet, like the depositions in the Throckmorton case, the wounds in Titus Andronicus come in the form of lethal letters. Similarly , lethal letters appear King Lear 4.2 in Cymbeline . I insist that the complicated place for the forged letter reaches its pinnacle in Titus . It is important to show that in Titus Andronicus , the dramatist illustrates Saturninus as most fatally by a letter. Hence, this play grows significant in its usefulness as a critique of the administration of early modern trial rights, and addresses the impo rtance of defending those who are accused as well as acknowledging the burgeoning rules of evidence that the prosecutor, or here Saturninus the law - giver, must follow. Not unlike the battlegrounds of the courtroom, the early modern stage functions as an ex periential locale by which to contend with this transitional crisis between spoken and written authorities, falsity and truth, character and credibility, conflicts and relationships both private and public. Within the play, the testimonies and rhetorical d efenses of Titus on behalf of his sons Martius and Quintus work to no avail, yet the fraudulent papers presented illegally, and perhaps unethically, by Tamora, the law - - lover. In furtherance of a vindictive vendetta, the letter inflames pre - existing personal animosities of Tamora and professional jealousies of Saturninus to the dysfunction of this Roman realm. I maintain that within several key scenes, written evidence within Titus Andronicus offer a critique of trial and appellate rights, as they function within criminal law and their appeals. Even further, written evidence plays out this legal dilemma in individual and political moments of high drama. My argument submits that planting flawed evidence breeds conspiracy, a dmitting flawed evidence corrupts the trial court system with its summary conviction without any substantive 34 advocacy on behalf of the defendants, and denying substantive judicial review by the law - maker, thereby dismissing valid claims for redress as friv olous. 35 In following one scene from the other, this analysis suggests that false evidence, as both a legal and theatrical exhibit, is planted, presented, and appealed to achieve some identifiable way to seek justice. In this chapter, I render these scenes to investigate trial advocacy (i.e. a field designed to require more efficiency by attorneys and other a dvocates in the profession ) not only within the play but its emergence, and at times its possible regression, within this early modern moment specifical ly, its courts, its culture, and its critical commentary. 36 Because of its silence, the audience, I imagine, serves as more co - conspirator than witness not unlike Aaron and later Tamora. The audience watches as ultimately are judged, convicted, tortured, and decapitated. As these events unfold, it is in silence that Aaron too, as co - conspirator/witness gleefully watches, as these dramatic acts take place, Tamora collaborates with her sons as well, and she finds her own judg ment eventually at the hands of Titus. In each of these key scenes on written evidence, Shakespeare delivers in the play a moment to consider how the evidence is subverted, manipulated, and ultimately summarily accepted as truth. There are three important scenes that this analysis will consider. In the first scene, the ever - mercurial Aaron produces written evidence fraudulently in an inspired act of villainy at 2.2.46. 37 The letter is compromised, where Aaron exposes his desire for vengeance against the And ronici, yet it is given to Tamora. In the second scene, Tamora plants the falsely written proofs in the hands of her husband, Saturninus, who conducts this summary trial in the atypical wooded lands where 35 Though beginning its prosecutions with an information, the Court of the Star Chamber tried individuals summarily without a grand jury or a tr ial jury. By the Stuart era, the court focused on criminal acts and enforced a variety of imaginative punishments (e.g. slitting noses, severing ears, etc.) (Baker 137). 36 John Langbein suggests that the adversary system involves attorney conducted crimina l trials (1). 37 35 in spite of the glaring evidentiary issues presented by the document. In the final scene, Titus appeals to the emperor for judicial review of the summary trial and to the Greek gods for redress. I argue that this scene illustrates the significant worries w ith early modern appellate review becoming nothing more than a procedural process, rather than a substantive review. reveals the motives of his chara cter, his criminal conspiracies ( including the murder of Bassianus ) , and his co - conspirators, like Tamora. FIRST SCENE : 2.2.1 (Demetrius 4.2.18) This moment, at 2.2 when the letter initially appears, provides a way for the audience to examine the characters, critique their motives, and unravel their criminal conspiracies, which surround the production, the presentation, and the consideration of evidence for trial and appellate review in l ater scenes. Before Act 2, G brought prisoners to Rome from these fallen people, namely Tamora, Queen of the Goths, her three sons Alarbus, Chiron and Demetrius and her servant, Aaron the Moor. Titus has, with Roman Titus, Saturninus, the new Emperor of R (1.1.397), Tamora, 36 the play shifts, from war to weddings, and then to hunting. Here, at 2.2 .1, Aaron enters, and while bending over to place the money - soliloquy: He that had wit would think that I had none, To bury so much gold under a tree And never after to inherit it. (2.2.1 - 3) H ere, Shakespeare presents a moment where the audience views Aaron on the stage alone, and in this monologue explains the reason for his stealth - like behavior. Presently, the audience catches Aaron committing an illicit act in the middle of this criminal co (5.1.145), in this sinister figure , which he exudes, postures as one without guilt. Within this scene, Lavinia, his affair with Tamora, and his scheme for the letter. Always with a plan, Aaron plants a money - bag of gold, and gives the letter to Tamora to deliver to the emperor. Within this plot, he misuses the false letter, which later turns into the lynchpin for the wrongful convi ctions of two of - for the first time in the play. Along with the letter, Aaron reveals to the audience his motives. Like the well - placed money - bag, the letter turns into - thirst that he shares with Tamora is embodied in his later proclamation to his Tam - 39). In 37 and eager to begin as he will not be sate - 43), his letter turns into the key to achieving more deaths for the Andronici, namely Martius and Quintus. It is with y - lanting evidence marks a vital aberration of the law, but it also has a great significance in the affective economy of the play, where it heightens the unraveling of the Andronici family. Here, the play presents a compelling moment where a character is act a difficult - 627). This device of concealment conveys deadly signals, where most characters some animals, and others, like Chiron and Demetrius, people in these . In early modern society, planting evidence takes all manner of forms. For instance, when lous, [and] unlicensed Papers [broadsides] , Pamphlets, and Books that plagued the capital to the great Defamation of Religion and Government 38 In particular, two treason cases illustrate the dilemmas incited 38 chapter entitled, Ballads and Broadsides in Britain 1500 - 1800 (317 - - 1603), as John Lewis Walker discusses in his Shakespeare a nd the Classical Tradition: An Annotated Bibliography, 1961 - 1991 (684). 38 by deceit. In the first case, all egations of forged evidence (i.e. letters) presented to court abound, but in the latter case, the accused suggested that the evidence (i.e. depositions) is defamatory. First, in the case against Mary Queen of Scots, serious allegations about seven forge d and Bothwell (Tytler 66, 72, 74). 39 Traveling from one country to appear at a Secret Council on December 4, 1567, and are stealthily planted in the hands of her 39 Tytler, William. An inquiry, historical and critical, into the evidence against Mary Queen of Scots and an Examination of the Histories of Dr. Robertson and Mr. Hume, with respect to that Evidence . Fourth Edition. Volume 1 of 2. London: Printed for T. Cadell in the Strand and W. Creech Edinburgh, 1790. Figure 4 Mary Queen of Scots Letter to Henry III of France before Execution, 1587, Paper, National Library of Scotland, NLS Digital Gallery. 39 on December 15, 1567, the lette rs appear in an act of Parliament to detain the Queen of Scots against her will on this matter. At one point in this intrigue, Mary Queen of Scots escapes with Bothwell to the Castle of Borthwick, but is tracked, pursued, and apprehended by Lord Hume at th e head of a healthy military arsenal of 800 horsemen. Later, she requests, but is denied access to the letters; ultimately, she is incarcerated, convicted, and executed without having ever viewed the written proofs (19, 62, 77, 82 - 83). In addition to the n ow revealed love letters, her alleged affair, murder conspiracy, judgment and execution parallels the life of Tamora the Queen of Goths and Empress of Rome in Titus . The cunning Tamora conceals her affair with Aaron the Moor, conspires to commit murder, ra surviving son, renders a judgment and a special manner of her execution for her deeds. Yet, where - conspiracy, Mary Queen of Scots denied the ownership of her o 40 In contrast, during the Nicholas Throckmorton case, discussed above, the treason charges were incapable of being substantiated; after scrutinizing the written evidence, the case appeared to found a way to dismiss each examination as false. In this way, for both cases, the accused allege s that nefarious hands manipulated evidence against them; here, in Titus , the audience witnesses undoubtedly those individuals, who proffer these maligning letters have issu es of credibility, 40 Mary Queen of Scots and the Casket Letters . 40 which might suggest a cause for suspicion. 41 For example, with his alleged pre - existing animus against the Queen of Scots, the Earl of Likewise, before this audience, Aaron reveals his pre - existing animus, as he tells the audience in - 3). He explains his ego - maniacal motives. In these motives, there exists a significant problem for Titus an d his sons where Aaron plants false evidence and Tamora presents false evidence at court, much like the allegations of Throckmorton and Mary Queen of Scots. These malignant motives, for several reasons, impede justice for the Andronici: 1) Titus, for his p opularity as a general, poses a 41 (Kahn & Hutson 54 - The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (20 Law and Representation in Early Modern Drama (2006). Figure 5 Henry Peacham, The Peacham drawing, 1595, Paper, vol. I from f. 159 of the Harley Papers at Longleat, Library of the Marquis of Bath at Longleat, library.oxfordjournals.org. 41 Lavinia to prevent the marriage to Saturninus; and, 4) Titus killed Alarbus, son of the new Empress, Tamora. At every turn, Andronici. legal life of the document, the earlier exchange of the letter from Aaron to Tamora represents an attempt both visual and symbolic. 42 This handling of potential trial evidence has a visceral effect in the play. I explore here the physical biography of this letter, which is separate from its legal biography, (Appadurai 68). Here, within this scene between Tamora and Aaron, a physical exchange occurs between this diabolical couple th at allows the audience to read further into their connection as lovers, as co - conspirators, and as vengeful killers. The physical transfer of this document imitates their sexual and bloody lives as well. Though we witness their murderous conspiracies on th e stage, we never see them engage in the sexual intimacies of love - making or the violent act of murder. For this reason, the letter serves as a substitute for other physical tendencies both carnal and fierce. The letter and its exchange evolve as important like the frontispiece for the play and its socio - political and cultural exchange within the early modern community. Similarly compelling, the significance of its visual component may be found in Henry 1595 ( above ). This visual piece operates as a 42 of the material life of theatre objects thou gh most of his discuss centers on non - written stage properties 42 Tamora, her sons and Aaron exchange their freedom for Roman imprisonment. It is dynamic in its symbolic display of the dichotomy that exists within the play at the site of both Aaron and between the characters, Goths and Romans. As they exist in the drawing, this pair remains ideologically as polar opposites with Roman society. Much as the playwright portrays them, depicted as dishonorable, in contrast to the Romans, like the Andronici, who are esteemed as honorable. Jonathan Bate suggests odds, in battle, and alw ays enemies. Like the representation of drama, the representation of legal culture provided a powerful source of imagery for early modern society. The trials themselves offer scintillation in the form of information and the presentation of legal props, wh ich excited the early modern imagination. For letter, but unl ike Martius and Quintus in Titus , Lilburn is found not guilty. As a tool for political n was incarcerated because he, through his pamphlets, charged this early modern society to change with socio - political material, like legal equality, religious freedom, and election reforms, to incite individual conversation. 1 Such conversations garnered s ufficient attention, as some of the texts were published by Lilburn, in which he cited the Magna Carta, public proclamations, remonstrates, 43 orders of Parliament, and declarations. Though his wife petitioned for his released based upon family hardship, no r elief was granted. However, this confinement did allow for more acclaim for his pamphlets. The popularity of his work was immense. Commemorating the legal victory, an engraved frontispiece depicts how he defends himself at court while holding a copy of Co to invoke the legal education that he received is instructional (227 - 229). Even more compelling, the frontispiece in (see image below) demonstrates the cultural and the societal value that these texts had not merely for th exchange in Titus seek to work against this role that law and evidence play in early modern society. Within the drama, a setback results in the denial of access to a su bstantive trial and appellate emphasizes this legal deficit when examining evidenc e. Hence, this visual representation of the pamphlet and the acclaim of this pamphleteer demonstrate the commerciality, the social and the political value of Institutes engraved on the frontispiece al so highlights the legal system by which Lilburn was charged or castigated, depending upon whether one was a fan or a foe to this pamphleteer. As much as the state tried to stop these publications, this clever pamphleteer found a way to make the system by w hich he was tried and convicted, but others were executed became a part of this commerciality with all its repugnance and its popularity. Of particular significance, this attempt to control the publication of the legal text may be likened to attempts to co nduct summary trials without a proper vetting of the evidence, including written evidence, which I discuss further in the next section of this chapter. 44 Perhaps representing the abundance of early modern concern for that which is illegal, immoral, and u system of justice in Rome through producing this false letter with the intent of bringing about the deaths of the family of the Andronici and the fall of Rome , or rather its sitting emperor, Saturninus. Within the play, the letter is portrayed as a libelous letter, yet signals deeper ethical and moral as evidence against Martius an Figure 6 Edward Coke, The first part of the Institu tes of the lawes of England. Or, A commentarie upon Littleton, not the name of the lawyer onely, but the law it selfe, © The British Library Board, 508.g.16 , EEBO STC/770:04 . 45 where Titus, celebrated general and honorable citizen of Rome, will fall swiftly from grace. At an felling Saturninus, for Aaron collaborated with Tamora and her sons against the Andronici, but ultimately the fall of Rome was in their purview. 43 Simply put, the letter does not seek to reveal truthful evidence. 44 From its core, the purpose 45 Destroying 43 reading and writing to teach in the play, and his capacity to read, interpret, and rewrite the actions of others that helps him to maintain - 36): Aaron understands how writing functions in Rome. He writes, as David Bergeron has argued more deploys his words via credible media, such as scrolls and official announcements, lending his malicious articulations more weight and credence. He com poses the letter that convinces Here, the letter serves Aaron at an immoral level. Ye t, this project maintains that Aaron uses writing to affect s enemies. Eventually, the in Titus for Pearson has pedagogical significance, I submit that writing possesses a quality, which echoes Richard He Rutland Rutland Case d protect the English system of jurisprudence against humanists (Helgerson 80). 44 Arguably, the use of Rome to critique early modern England was a highly charged political contrivance, especially e writers who failed to cloak their critique of the realm faced stern consequences. As the tragedy Titus Andronicus icisms about the execution of justice in England (Raymond 340). At his trial at the Guildhall of London for Libel, 32 Charles II A.D. was alleged to have been intentionally and unlawfully printed; the court accused that Carr intended to scandalize criticism of the Catholic and Jesuit faiths as blind, takes out spots out of deepest treasons, more cleverly than Castile - perstitions, the errors, and the usurpations of the Bishops of Rome (1113). The jury found Carr guilty and was praised the by court for doing so. 45 At first glance, the dark characters and bloody violence caused some scholars to view Titus Andronicus as th e 46 Bassianus, Martius, and Quintus, the letter creates both scandal and sedition. First, interlopers like Aaron and Tamora, through their flawed characters, use the letter to exert their ill - will as a conquered people who endure a perceived wrong and as enemies enact their innate desire to embody evil. Second, the letter i s camouflaged as real or truthful evidence in the court of Saturninus, thereby corrupting the trial system. Third, the letter exposes a lack of obtainable justice in the realm because of its flawed appellate system. To advance their scheme , Tamora takes th e letter in 2.2 from Aaron because he is one of her many co - conspirators. This empress, who is at one with ruling men as her main means of conducting conspiracy, uses many actors in furtherance of her own malignant machinations, much like Iago in Othello . - Andronici, for the death of her son, Alarbus. Hence, just as Aaron plants the money - bag of gold, ter in the hands of its intended, Saturninus, the Emperor of Rome. the audience , which arguably operates as both complicit co - conspirators and watchful witnesses. Several scholars have noted this complex relationship between theatre/audience and witness/juror. 73). Nevertheless, more persuasive is the argument that the a udience functions more as jurors (Mukherji 136). Does the space between the play and the audience function as a vacuum of execution of its people, attempted kidnappings of its sovereign, James I, and other behavior, which might be deemed scandalous. Hence, this Car r case provides a wonderful comparison to Tamora and Aaron, as they scandalize this realm with their affair, a child born of this affair, and their criminal conspiracies. Essentially, Carr critiques this kingdom through his book. He finds that flaws exist in the administration of justice within this realm. Similarly, Titus lays such charges against the kingdom of Rome, and appeals to the gods for redress. Later in the chapter, when the speeches of Saturninus are examined more closely, it can be said that th e scandalous nature of 47 knowledge and corruption, which somehow embody the complexity of jury service at this time, as noted by Lorna Hutson and John Langbein ? Does this space thereby make the defendant peace, both witn effort at truth - seeking. Some resonance for this argument may be found in the Sir Walter Raleigh case and his self - was tried initially and found not guilty; then, apprehended again, convicted privately, and executed. Using - try the defendant, without a jury. Hence, the early modern proc ess does not always foster truth (or transparency), in spite of the witnessing of the audience, the deliberating of the jury, or the judging of the justice of co nspiracy, treason and sedition in this initial scene. This scene functions effectively to illustrate the motives behind manipulating potential vital written evidence. This opening scene at 2.2 describe s in detail the character of Aaron the Moor, of Aaron, in h is stealth sadness, may be truly examined, for it is here that Shakespeare imparts to the audience inferences into the causes and the nature of his acts and the character of this unscrupulous charlatan. 46 Aaron exudes the resolve to exert bloody vengeance a gainst his 46 48 purported enemies, the Andronici. I n spite of his affair with Tamora, he is unflappable, and will not allow her venereal signs to supplant his intentions. Even further, Aaron is unwavering to see 2.2.50). As if to demonstrate his evil design bodily, Aaron likens his hair to a snake where his: fleece of wooly hair that now uncurls even as an adder when she doth unroll To do some fatal execution. (2.2.34 - 36) The image brings to mind the mythologic al Medusa whose hair is covered with the serpents , which Though Act 2 reveals the malevolent tendencies of these two characters, an earlier aside to Saturninus in Act 1 imply Tamora And raze their faction and their family, The cruel father and his traitorous sons et a queen Kneel in the streets and beg grace in vain. (1.1.455 - 460) 49 This aside implicates both her character and credibility in later scenes in this analysis. 47 It is in this moment where it is difficult to view Saturninus without deeming both his action and inaction as complicit with his new wife, Tamora. For both of these characters, this scene exposes the quandaries with credibility , which develops as relevant in later in the play, where Titus, on behalf of Martius and Quintus, will be denied an opport unity to confront the witnesses on the issue of their credibility. Because Tamora and Aaron both seek the downfall of the Andronici family and the state of Rome, the reliability of any evidence proffered by this calculating couple should be called into que stion. Here, they reveal to the audience their affection for each other, their affinity for lying, and their aversion to the Andronici. As I consider their later role as oath - helpers (Kahn & Hutson 38 - 67), the significance ns problematic when considering, among other factors, motives, speeches, purposes, habits, and manner of life of character, thereby implicating credibility. Here, prior to the submission of the corrupted letter, the conflict, which Tamora and Aaron bring t o this verdant legal forum must be acknowledged. conspiracy and treasonous behavior of Tamora and Aaron are the initial crimes revealed in this evocative scene, and provide the perplexing conundrums with compromised evidence and without any allegiance to truth - rticular, most of the court is unaware of 47 In both the Riverside Shakespeare 2 nd edition (1997) and the Arden edition (2002) of Titus Andronicus , t he passive, if not direct co - conspirator. 50 ked in darkness, also work s above; the case was rich in its complexities. 48 In the second case, in 1603 , as he was tried multiple times, was adjudicated in secret with Sir Francis Bacon and other commissioners. In spite of the sentiment of the public, which would make up a potential jury, and the public writings circulated during his imprisonment, secret coun serves as a sharp contrast to the one - sided secret writing by Johann Wigand in 1576 with its non - legal, but highly religious emphasis (Raymond 64). This secreted trial proceedings of Raleigh and the - 48 Reports of cases in Courts o f Star Chamber and High Commissions , England & Wales, Court of Star Chamber (226). 51 stalk their prey? Here, Tamora and Aaron plot the downfall of Bassianus, Lavinia, and the rest of the Andronici with accuracy, while Saturninus, Emperor of Rome, Titu s, General of Rome and great hunter, and the rest of the court supposedly hunt prey of the four - legged variety without - 2). Even more ironically, while Titus unknowingly hunts, he and his family find themselves reduce d to the hunted, where many unfrequented plots there are - 616). 49 They walk right into the bloody traps that Aaron, Tam ora, and her sons, Chiron and Demetrius, have laid for them, which include death, destruction, dementia, dismemberment, and rape. 50 49 I use Q1 scene divisions 50 Beyond the normal criminal conspiracy, there exists a c ertain seditious and scandalous nature to the acts of Aaron and Tamora within this play, which initially inculcate Saturninus, Chiron, and Demetrius. At once their sexual affair rises to the forefront before this early modern audience, yet the seditious ac Figure 7 William Vavasour's untrue statement written in presence of Lieutenant of the Tower, 23 March 1605 - 6, Paper, The Identification of a Strange Writer of the Anonymous Letter to Lord Monteagle, Project Gutenberg. 52 Although not unheard of in this early modern era, the sexual dimension to this discussion of conspiracies yields another way to address notions of character and credibility, which seems imbued with tensions grounded in gender and sexuality. Several conspiracies impart evocative examples. For instance, the case against Mary Queen of Scots has as its chief allegation that one of her letters, included a love - sonnet with a promise of marriage from the Earl of Bothwell. The premise for this conspiracy charged that if Bothwell, her alleged lover, would kill her husband, appear as h er new husband; hence, the murder, their affair, and the legitimacy of her crown arise as bound into one larger sexualized gender contribute to her downfall, as it does Tamora. It is only when Tamora must hide her illegitimate child with Aaron, her lover turns upon her, and reveals, at the end of the play, her role in this deadly conspiracy. As Aaron turns against Tamora, so does fate; she is judged harshly by As for that ravenous tiger, Tamora, No funeral rite, nor man in mourning weed, No mournful bell shall ring her burial, letter are an extremely provocative tension within this drama. As mentioned previously, the Nicholas against him in his treason trial. Throckmorton, a nobleman, reverses the roles in his trial. With precision, he cross - examines the judges before him, and questions every piece of evidence that the judges use to implicate him, including written depositions. Throckmorto n, in essence, decimates the evidence raised against him. The jury returns a not guilty verdict and is immediately punished for their effort. Thereafter, Throckmorton flees to France. This court at Guildhall again confirms the disparaging reputation for wh ich these courts in the seventeenth century (Martin 203). In Titus , Martius and Quintus become unable to investigate the evidence that is laid befor e them. With stern outrage, Saturninus commands their silence, and accepts the evidence, the letter and the gold, as sons of Andronici even see the actual letter the most compelling evidence against them. 53 But throw her forth to beats and birds to prey: H er life was beastly and devoid of pity, And being dead, let birds on her take pity. (5.3.194 - 199). Significantly, this judgment against Tamora, formerly Queen of Goths and Empress of Rome, become the last words of the play. Such a decisions would make her more culpable than Aaron she, like the Queen of Scots, may be judged for her sexuality and gender as well. In fairness to the judgment against men, a scandalous trial, which almost rivals Titus in its debauchery, involves the pamph let written on Mervin To uchet, E arl of Castlehaven, who was tried for rape and sodomy in 1631. In this case, the facts dilute the issues of character and credibility of egregi they were co - conspirators, who were uncharged or whether they were victims in this case. The trial, the execution and the scaffold speech at the time were only available in manuscript (Raymond 125 - 126). In spite of the disturbing circumstances in the Touchet case, the cha racter witness staunchly attested elieved because of their own potential culpability. We find similar circumstance arise in our tragedy by Shakespeare. In Titus , Aaron goads that Aaron set th em on this course of rape, though this machiavel admits the contemptible act to 54 Tamora, as part of their conspiracy against the Andronici. In this criminal and sexual conspiracy, even Tamora does not object where she tells Chiron and Demetrius: Farewell, my sons; see that you make her sure. Till all the Andronici be made away. Now will I hence to seek my lovely Moor, And let my spleenful sons this trull deflower. (2.2.187 - 191) Like the Castlehaven case, this drama has multiple crimes committed by the co - conspirators. Yet, in Titus , Chiron and Demetrius are never tried for the role that they played in the abhorrent rape of ra pe. Nevertheless, Titus, the old general, does issue his own judgment against the foul pair where he chops them up, cooks them, and serves them to their mother, Tamora. identifiable convention of using letters to instigate conspiracies, in general. Arguably, the letter l - equipped, Chiron and Demetrius are physically competent. The letter removes the remaining draughts of honor from this early, but brief reign of Sat urninus, and fells the patriarch of this great warrior family in the Andronici, thereby leaving Rome vulner able to her enemies. Unmistakably, t he potential power of the letter possesses to weaken a realm sits squarely w ithin the Gunpowder Plot against James I, 55 where another letter inserts itself to the center of the conspiracy, and resembles the work that Aaron treason that produces the Gunpowder Plot. It is, as the state lawyer gunpowder, but it also, even more fundamentally, stands in for the event itself. Th the image of testifies discovery. Like the subsequent stories of treason, the letter disseminates information about the plot that never happened; it shapes it in the imagination rather than represents it based on Like the Monteagle letter (see also image at page 51) can only speculate as to the real work that this letter - writing plot has on the lives of the Andronici. In the next scene for examination, the audienc e learns how Aaron and Tamora use the letter 56 SECOND SCENE : 2.2.246 : (Marcus 4.1.84) Encapsulating the breadth of legal intervention, here, at 2.2.246, Shakespeare crafts an elaborately complex scene where the crime scene is discovered, a search is conducted, the evidence is collected, the court is adjudicate d, a judgment is passed, and the convicted felons are removed for torture and execution at an unnamed location. Initially, the scene evokes the activity that one might have recited in a courtroom where the witnesses to the crime, the prosecutors, and the a lleged culprits would gather to flesh out the details of this morbid cause. Similarly, here in Titus , the viewing the body does not transform into the most central moment in the scene where the body of nd, rather the focus of the scene turns to letter reads as if the listeners have caught the culprits in mid - conspiracy, as the emperor stands over the intende d grave. The written evidence emerges as the item that is viewed with heightened attention in this moment. With his limited deductive skills, Saturninus devours the fabricated evidence and the fabricated tale that it weaves. Whereas, for Lorna Hutson, the forensic discussion 2 Henry VI (Jordan & Cunningham 147 - 148), in Titus Andronicus , the written evidence evolves as evidence afford s this system of jurisprudence no substantial means of challenging proofs. The 57 early modern courts encouraged the memorialization of important information in writing, yet this documentary evidence also needed to be trustworthy. In this scene fraught with b ias, fraud, and illegality, Saturninus, Emperor of Rome, reads neither a proclamation, a statute, nor a law that he has newly devised for his realm. Here, in the middle of this hunt, the emperor reads the eight lines of the writing detailing an alleged con spiracy. Apparently, these lines deliver identifiable an - 273). These words, for Saturninus, reveal the center of a murder orchestrated at the hands of the sons of his late competitor for the throne, now enemy, Titus. Noticeably, the forged letter does n ot name the conspirators of this dastardly scheme, yet the target of this operation is none other than the brother of the emperor, Bassianus, lately in league with the Andronici. At the moment of the discovery of the Andronici sons in the pit with his murd ered brother, Saturninus does not make any discernible hint that he - at In spite of its seeming anonymity , the letter bears the guilt, perhaps by the nature of the - bag. After the letter is read and the bag of gold discovered, Saturninus feels armed with sufficient proofs to blame these sons of Andronici -- the outset of the play. In his mind, one set of sons e scape with his newly proclaimed intended, Lavinia, and now another set of sons warm the dark cold pit where the body of poor Bassianus is 58 is indeed insufficient. 51 These jurists expressed some valid concerns about forged documents and fraud that brought about safeguards for written proofs through the implementation of the Statute of Frauds and the Star Chamber, though not yet inactive at the time documents before the courts (Macnair 151, 153, 161). Here, Saturninus does not express any concerns about the veracity of the unsigned document, planted by A aron, offered by Tamora, and, swiftly confirmed by Titus. This moment is charged with political and legal economies at work. The trickster Aaron, whose words are brief, choreographs this complicated scene well, as he bring s the Emperor Saturninus to the crime scene that he has just constructed nces for the Andronici. Martius and Quintus are in legal jeopardy with this possible capital crime; what from private passion to publi c passivity . Aaron, this sinister tactician, allows his masterful work to move these men as if they were marionettes where this Moor, this foreigner and servant, holds the strings. In hearkening to his earlier soliloquy at 1.1, the words foretell this mome - 523). In this instance, 51 Some scholars might argue that the sufficiency of the evidence depends upon the jurisdiction in which the trial occurs. Here, I read this chapter as an examination of the criminal law and its appeals. One might want to read this case as one would treason. However, in the next chapter, I read the law of treason as I analyze writte n evidence in Richard III . 59 Aaron exudes self - satisfaction where he has achieved political mastery over Titus this once into the hands of Saturninus, Tamora delivers a wond erful performance that embodies naiveté, anguish, and compassion. With the assistance of this forbidden power couple Aaron and Tamora, the scene is also (2.2.249), wh (2.2.263). The words become reminiscent of the epithet that one might find on a gravestone. vengeance, as he looks on the sons of Titus (2.2.260). , Martius Whi le at once humble and unguarded, the statement unfortunately ripens into the admission of guilt upon which Saturninus and Tamora may rest their own bloody desires the death of more sons of Andronici. Martius is quite right when he refers to the repeated caustic appellations by which Saturninus refers to these sons of Andronici, as fell curs and forecast the doom that they will share with Bassianus w ho just an hour earlier ruin earlier prognostication, where, before giving her possession of the letter, he emphatically proclaims to Tamora Bassianus share this deadly designed destruction - 269), according to the letter, finds himself, like Titus, the hunted. A huntsman 60 found bu - letter reaches its penultimate form, where heretofore it has been planted, exchanged, and then delivered, but now it is r ead before this wooded court to contrive the convictions of the Andronici by Aaron and his Tamora. Critiquing This Lethal Letter An analysis of this lethal letter reveals a corrupted document surrounded by corrupted characters. In spite of its illegalit y, perjury is uncontested in this summary trial, where Saturninus convicts these sons of Andronici without an indictment and without a trial by jury (Baker 583). Although Titus does not confront the lovely but barbarous Tamora (3.3.118) about the intrigue surrounding the letter, this battle - worn general realizes that he has no expectation of sympathy Bate at note 293 - 294 (185) addresses this moment where Tamora bla mes Titus as the fi nder of this errant letter, by suggesting that Titus decides n ot to quarrel with Tamora. Still, h e also observe s an inconsistency in the plot because later in the play at 5.1.106 Aaron blames Titus for discovering the letter. Offering a different theory, Karen Cunningham suggests that Titus is not lying here. 52 Whether this moment is an oversight by Shakespeare or not, this deflective move by Tamora is not face of the allegations against his sons, Martius and Quintus. Here, not only does Tamora commit perjury, but further steeps this letter in a mire of lies, de ceit, corrupti on, and political maneuvering. 52 - Shaw. 5 March 2015. E - mail. 61 Because the truth is far afield, t his scene captures the increasing obstacles in the perceived growth in oath - helped to usher in both w riting requirements and its restrictions (Macnair 152). The letter interferes with the trial rights as the process for reviewing the validity and the reliability of the letter, as documentary evidence proving the payment and the pit as acts in furtherance of this matter of develops as the real behalf at the outset of the play, yet here and now, one act later, Saturninus embraces the idea that itself in the appearance of the legal process to satisfy the Roman citizenry, its judges, and its the emperor, this partial law - giver, had made his decisio n already. Politically, an immediate judgment gives Saturninus a perceived strength. Much like an architect, Tamora boldly frames the reception of the written evidence with 64 - 265). She - 267). These words are spoken even before Saturninus can read the letter letter with her words of human fallibility, duplicity and dastardly deeds. She is as blood - thirsty as her Amazonian counterparts. just as Tam ora maneuvers him, and relies upon the flawed evidence that he finds con tained within this fatal writ. Like the 62 locales on a map, t he emperor makes the connections that the letter directs him between the pit, the elder tree, the go ld, and the body of Bassi anus. In clear language, t he contrived letter implies a previously agreed upon conspiracy secured with a financial transaction in gold. Interestingly, Saturninus does not look for the writer of the letter, because he is seemingly satisfied that he has the culprits. The matter is neatly packaged much like the culprits who are found within the gaping hollow in the middle of this courtly hunt. The case seems too convenient, too simplistic, and quite suspicious. er for his loss. Her words are at once inquisitive and accusatory O wondrous thing! / How easily murder is - 287). Her utterance may initially be perceived as if these circumstances are fortuitous or mere ha ppenstance, yet she follows swiftly with a pronouncement that rings soundly - heard - - 285). - well - crafted letter. Essentially, Tamora confirms for the emperor that he has indeed found a murder 2.282). sequence is thoroughly grounded in the assumption that the courts considered how evidence was acquired, as essential. The problems with documentary evidence could be endless, bu t Saturninus does address this issue of safeguarding evidence and its sources when he later asks Tamora from where she obtained the letter and she blam es Titus, who does not object. While Jonathan Bate proposes a viable explanation at note 293 - 294 (185 ), a s discussed above, but his argument does not sufficiently address t he legal implications, particularly as they relate to written evidence . 63 develops as a part of th e requirements for authenticating documentary evidence. Some documents were self - authenticating like public documents, but the 1599 rule concerning private documents air 114). In Titus , Aaron delivers the letter to Tamora, and instructs her to deliver this missive to the object. At this point where his sons are found next to brother, Titus could have reasonably objected. Still, if he had objected, this general would have riled the already enraged Saturninus, and possibly caused more Andronici to fall into immediate jeopardy with this emperor and his empress. Undoubtedly, Tamora is bold in her decision to blame Titus for the letter. Here, where Saturninus has the final judgment, the source and the author of the letter are vital. The answers to such questions of authorship would invite c oncerns about the motivations of the agents who produce the document, and such questions would implicate the emperor himself. On behalf of Martius and Quintus, Titus will be denied an opportunity to confront the witnesses on the issue of their credibility, Titus will be unable to challenge the dilemmas with credibility. Because Tamora and Aaron both seek the downfall of the Andronici family and the state of Rome, the reliability of such evidence and the character of the proponents of this evidence may be called into question. This newly minted es, purposes, habits, and manner of life of character and credibility is no concern to this woodland court 64 In such a place, Saturninus does not function as an objective law - giver who inquiry does pursue the truth of proofs, and exposes the problem with the safeg uarding of evidence. Truth - Telling Toppled by Failed Advocacy Within this Roman woodland, no identifiable system of trial advocacy presents the swift hand - hearted attempt at speculation, falls deafly upon a law - , which are unwilling to hear the possibility of his sons mention of proving fault (2.2.291) is inane to Saturninus After Tamora blames the discovery of the letter upon Titus, Saturninus is content. The question of suspicion, mere allegations, or fau - rt, was more concerned with winning cases rather than ferretting out the truth of the matter (331 - 332). (2.2.301). criminal penalties for the sons of Andronici. Hence, Saturninus has suggested that if he could do more than torture or execute them, then he would. Altho ugh Titus seeks and is refused bail on behalf of his sons, the rationale is simple for Saturninus, where there is no need to bail culprits who are presumably caught in a pit with the body to which a supporting letter describes with incredible accuracy. Lat er, in execution of the sentence, the decapitated heads of Martius and 65 Quintus are delivered to Titus. Lorna Hutson suggests that a confession could not be obtained without torture whether the torture was private or public, for torture was a substantial to ol in the production of truth (72). Yet, here, Saturninus seeks neither the truth nor a confession. Rather, for a play that concerns itself with hunting four - legged prey, the body parts of several characters are littered throughout this bloody tale. Satur of Martius and Quintus are explained by the grief - stricken Titus, later at 3.1, where he notes that: Rome is but a wilderness of tigers? Tigers must prey, and Rome affords no prey But me and mine. (3.1.54 - 56) where Martius and Quintus fall prey in this unruly court. 53 This hurried judgment against the sons inst Titus than concern for obtaining the true yield a stark contrast where here in this wilderness of Rome written evidence is taken on its face, and the e mperor looks for no justification to offer bail, as he scoffs at old Andronicus. Within the calculating machinations of Tamora and Aaron, there exists a sparring of legal principles between Saturninus and Titus. This scene evolves in an evidentiary manner between letter. While Saturninus represents the argument for direct evidence of guilt , Titus advances a defense of circumstantial evidence of h . The entire sequence vacillates between that 53 The Life of William Shakespeare: A Critical Biography - 1595 for references to Titus Andronicus, see page 104. 66 which might be proven explicitly and that which might be disproved implicitly. As stated s allows for the possibility of further proofs to sub evidence before this sylvan assembly is mere supposition. This emper or and this general are ideologically at war with what the meaning of the evidence that exists before them. Saturninus is the prosecutor, judge, and jury, but Titus transforms , however reticently, into the defender of the accused, the voice for the speechl ess, and an access to justice. Barbara J. Shapiro explains that direct proof involved witness testimony and indirect proof, or circumstantial evidence, involved constitu (Kahn & Hutson 68 - 69). Here, at this particular moment in the play, justice inv olves an objective review of the written evidence. What is the source of the evidence? What do the accused know of appears almost implausible, yet the accused ar accused to have defense counsel, yet here in Rome, like much of early modern England, the accused did not have a legal defense. Still, much earlier, there were those cases where the defendant had acce ss to legal counsel, advice, or may have himself or herself had some legal training, like Nicholas Throckmorton. That is unfortunately not the case in Titus . In order t o satisfy his own whimsy and burgeoning blood - thirst, Saturninus declines any additional proofs, which 67 might advance truth. Instead, this emperor relies upon flimsy presumptions , which result in the wrongful convictions of Martius and Quintus. Toward the e nd of this tree - covered travesty of a trial, the preliminary attempts to set aside the verdict grow fruitless, which make the possibility of overturning a verdict in homicide almost unobtainable. After judgment is passed against Martius and Quintus, Tamora leaves with Lucius as the body of Bassianus is removed, and his sons are taken as prisoners. In part, s according t o Lucius (5.3.194), has achieved her vow of middl e where she supports the now sanguine Saturninus in his desire to see the fall of Titus, and she emanates a sympathetic demeanor with Titus while relishing in her incandescent desire for Aaron. for his sons in the following scene at 4.1. THIRD SCENE : 4.3 and 4.4 : Titus Appeals As we shift from the trial and the judgment of Quintus and Martius, this final pa rt of the chapter takes up the questions of what happens if an individual believes that the trial courts are unjust, and seeks to the gods, but interestingly, his written pe titions, delivered by the many arrows of the Andronici, 68 delivery, and their reception in Rome. This argument suggests that these moments in the play at 4.3 and 4.4 yield a way to consider the appellate process i n early modern England and the foibles, which have been exposed in its courts. In response to his grievances, Titus literally launches an appeal, which further exposes the defective rule of Saturninus. The emperor is either unable or unwilling to offer a s ubstantive response to old Andronicus. His ineffectiveness is evident in taking council from his barbarous empress and languishing in his crippling impotence in the face of the legal appeals by the Andronici. These factors essentially deny Titus any identi fiable judicial review Nevertheless, during this period in which Shakespeare is writing, the courts make concerted efforts to identify those tangible bases upo n which injured parties could appeal, thereby members on behalf of litigants help to establish a standard. For example, in 1600, a shopkeeper became so enrage customer so hard that he died; he was convicted of manslaughter. However, the widow appealed, thereafter a statute of 1604 removed the ability to seek benefit of clergy where the deceased had no weapon drawn (Baker 602 - 603). 54 Thereafter, the appellate courts begin to hold the trial courts to standards that expected an investigation, an d examined criminal intent, provocation, and 54 Over the years, clerics have asserted immunity from temporal authority, where papal authority was held supreme. This immunity from tempo ral courts has been asserted in different types of cases including homicide, treason, and other crimes (Baker 148, 600 - 606). 69 reception to this expectation of redress fails to meet the reasonable objectives of early modern judicial review. For tunately, the early modern appellate process provided a proceeding in error where a party could appeal. At this time, a writ of error was provided that involved transferring the prior written record of the conviction, including the indictment, the informat ion, or the inquisition, by which a judgment had been pronounced. However, this record did not consist of any evidence of witness testimony or any evidence upon which the decision was based, including the judgment (Stephen 195 - 197). This process was merely procedural judicial review. In this way, the record was unlike that which is offered by the Thro ckmorton case where the knight wa s allowed to provide an exhaustive critique of the prior witness testimony. Throckmorton criticized the the Depositions and Evidences given against the prisoner and either for want Throckmorton immediately objects to the Lord Chief Justice impartiality and corrects the rec ord was eliminated for an appeal, in favor of a procedure, which gradually involved more considerations of equity, fairness, and the entire record of the trial court or tribunal (Baker 154 - 171). This task of confronting inequitable conditions, particularly in the written record, reveals a battleground, which wa s revisited throughout this early modern era. g an appeal was a difficult one. Titus determines to appeal the wrongful conviction of the Andronici, including Martius and In spite of the convictions, 70 disparaged family. 55 Terras Astraea reliquit Titus declares that he seeks to gain the attention of the goddess of Justice, Astraea, or the god of the underworld Pluto (4.3.13). He rallies his kinsmen with bows and arrows to mount his appeal. this petition. / Tell him it is for justice - 15). Though Astraea (Justice) is reputed to dwell in the heavens, Titus plies .23) who now serves to interfere with Justice. The good general believes that fits. When citizens are left without recourse, seeking revenge develops as the inevitable response to the desperate, the down - trodden, and the disenfranchised. 56 While Titus seeks relief from his plight from Astraea in heaven and from Pluto in the nether re gions, Marcus seeks vengeance. He tells his kinsmen: let us live in hope that Lucius will Join with the Goths and with revengeful war Take wreak on Rome for this ingratitude, And vengeance on the traitor Saturnine. (4.3.32 - 35) 55 - and torture are revealed to Marcus, the brother of Titus at 2.3.11. 56 Titus Andronicus Trauma Theory, and Titus Andronicus 71 Marcus looks for a more earthly solution to the sorrows of this family. Earlier at 4.1, the Andronici exchange vows of vengeance to achieve redress after learning of the rape and the dismemberment of dear Lavinia. This vow echoes a tradition of the bloody oaths from some of Shake other Roman plays, Julius Caesar and Coriolanus as well. 57 Here, in Titus , each member swears an oath to avenge the wrongs that have been committed against the family, particularly the execut ion of Martius and Quintus. While Roman plays immerse the audience with revenge, the early modern This is certain, that a man that studieth revenge, keeps his own wounds green, which otherwise would heal, and do well. Public revenges are for the most part fortunate; as that for the death of Caesar; for the death of Pertinax; for the death of Henry the Third of France; and many more. But in private revenges, it is not so. Nay rather, vindictive persons live the li fe of witches; who, as they are mischievous, so end they infortunate. 58 F re also the - being of the one becomes vital to the other. In this drama, 57 In Julius Caesar , Brutus dis cusses blood oath at 2.1 and Cassius at 5.3. In Coriolanus , Cominius discusses binding oaths at 5.1 and Tullus Aufidius discusses breaking them at 5.6. 58 REVENGE is a kind of wild justice; which I am uncertain whether Bacon wrote this essay before or after the Essex trial. It is quite possible that Bacon have been consid ering this concept of revenge as he pursued his prosecution of Essex and his co - conspirators. 72 Lavinia, like her brothers Martius and Quintus, functions arguably as one of the most affected victims in this gruesome gambit by Aaron, Tamo ra and her sons, Chiron and Demetrius. Yet, after taking such vows, Titus still seeks the help of the gods, for he believes that the Andronici are like Bacon, that the path of vengeance is decadent and other worldly. Nevertheless , like Marcus, he is impatient for justice. of the Romans and the Goths, so too is Titus ideol ogically divided by his desire for justice, a legal redress, and it s illegal alternative, revenge. In this divided state , Titus pleads: We will solicit heaven and move the gods To send down Justice for to wrea k our wrongs. (4.3.50 - 52) The deeds committed against this family, for Marcus and Publius, require bloody requite with the show of military force, which is, after all, the family business. At the head of such an army, Lucius would actually place an Andron of this drama. In her discussion of Titus , Deborah Willis outlines several markers of the revenge to wrongs where the gods are silent, and the state is either too weak or corrupt (23). 59 In spite of this struggle , this drama yields more than an examination of the length and breadth of revenge. This 59 they cannot abide the waiting that they must do Campbell argues ). 73 play incorporates notions of justice by way of critiqu ing the application of the law to its Roman citizenry, even more the famed Andronici family and the actions of the conquering hero Lucius at the helm of the army of the Goths. By illustration, at several moments of criminal offense, Titus is drafting, con testing, or transmitting written evidence to forge justice. This old general attempts to rise above revenge. In his treatise On Politics , Aristotle provides relevant commentary on The ends sought by conspiracies against monarchies, whether tyrannies or royalties, are the same as the ends sought by conspiracies against other forms of government. Monarchs have great wealth and honour, which are objects of desire to all mankind. The attacks are made sometimes against their lives, sometimes a gainst the office; where the sense of insult is the motive, against their lives. Any sort of insult (and there are many) may stir up anger, and when men are angry, they commonly act out of revenge, and not from ambition (Book V, Part 10, 141). Aristotle i nsists that revenge may be derived from two possible motives: insult and ambition. Here, Titus experiences the insult, but eschews ambition, as illustrated in his refusal in the contest for emperor at the outset of this drama. After considering Willis and Aristotle, the play arguably possesses sufficient markers of revenge to establish the nexus for a specific theory of justice at work. For instance, one right that is denied the defendants is the access to truth - telling, the swearing of oaths to truth and to testify as to the truth of a matter in this case, a criminal matter. The lack of truth - telling impugns the validity of any judicial decision. 74 In spite of the identification of the obstacles to truth - telling within Titus , the early modern appellate proc ess was likewise fraught with problems, as if it was almost impossible to obtain an appeal from the trial court. Armed only with the charging documents like the indictment, the information, or the inquisition, the appellate court, for the most part, would confirm the lower Quintus, argues for a new process witho ut the arbitrary and the capricious nature of the current to overturn the verdict by appealing to a higher court. After rallying his kinsmen, Titus decides t o salvation, these kinsmen launch these petitions to one god after another: H not to Saturnine: You were as good to shoot against the wind. To it, boy; Marcus, loose when I bid. Of my word, I have written to effect: - 61) In th is instance, Titus calls upon an army of gods and goddesses to aid the family in the search for justice in Rom e, and notes that such justice cannot be had with the current emperor, Saturnine. 75 T he impotence of eliminates any identifiable example of justice. Even, early modern poet Richard Johnson observes Titus Andronicus towards heauen high / And for r - 96). 60 The appeal is grave, and directed toward a source, more ethereal and god - like. Hence, an interesting moment happens after the kinsmen of the Andronici shoot their arrows for a godly and - Andronici were wronged by the ex ecutions of Martius and Quintus, and where Empress Tamora and her minions, Aaron, Chiron and Demetrius, hibernate after committing the violence against Lavinia and Bassianus for which the Andronici have found no rest. In an even more direct path to the court, Titus enlists the Clown to d (4.3.108) , a letter according to stage directions, to the emperor, but embedded within the friendship or tie s that he has with Saturnin us in a message that is evocative and deadly. This delivery of the knife is quite similar to the delivery of arms by young Lucius to Chiron and Demetrius. This delivery of weaponry w rapped in verses by Horace operates as the opening gambit in a new hunt wh ere the hunted, Titus, now self - aware, knows that he is being hunted by his enemy, and gives his enemy, now his prey, the gesture of warning. This hand - to - appeal at first glance furnishes Saturninus an opportunity to re - examine his earlier death sentence 60 The poem is from The golden garland (1620). 6 March 2013. http://lion,chadwyck.com.proxy1.cl.msu.edu . 76 upon Martius and Quintus, but the presence of the knife, like the gift of weapons to Chiron and Demetrius, carries along with it a visible threat, both deadly and powerful. During this early modern era, the courts debated quite freq uently over which courts had the right to hear appeals (i.e. jurisdiction) and whether such appeals should be heard. Within the play, the use of written petitions by Titus for an appeal is similar to the practice of written supplications during the early m Ellesmere and Coke both conducted some rather contentious debates on this particular issue. Some ju rists believed that if there was a chance that the defendant was innocent, where the evidence was not clear, the defendant must be released (Baker 166). In this drama, after having received the petitions delivered by arrows to his court by the kinsmen of T itus, Saturnine must decide how to Why, lords, what wrongs are these! Was ever seen An emperor in Rome thus overborne, Troubled, confronted thus, and for the extent Of equal justice used in such contempt? (4.4.1 - 4) Saturninus staunchly defends his execution of Martius and Quintus for the death of Bassianus. An interesting parallel may be drawn between the execution of Mary, Queen of Scots, and her appeals to Queen Elizabeth I and the English and Scottish commissioners; here, the Scottish queen and her defenders provide a strong example of the problem of granting an appeal where the subject matter 77 was a threat to the English throne (Tytler 95 - 110). 61 Within the play, Saturninus considers these appeals having been brought by mere: But even with law against the wilful sons Of old Andronicus. (4.4.6 - 9) For Saturnine, the petitions are baseless appeals, not subs tantive. Now, these disturbances develop into a political scandal, and threaten his power and ultimately his throne. Instead of addressing the validity of the claims, Saturninus immediately attacks the character of the appellant, n a strategic move of deflection, the emperor argues that Titus has a mental deficiency: And what and if His sorrows have so overwhelmed his wits? Shall we be thus afflicted in his wreaks, His fits, his frenzy and his bitterness? And now he writes to hea ven for his redress. (4.4.9 - 13) Saturninus sets forth a plausible characterization of Titus. Since the opening of the play, Titus appears after having served Rome valiantly on the fields of battle; then, after having lost many 61 Mary was tried for treason even though premised on the murder of former husband Lord Da rnley. Here, I examine this chapter in terms of criminal law and appeals; again, I will discuss treason in the next chapter. 78 sons to the concerns of this realm, the general transforms into a dysfunctional man. This mental affliction, for Saturninus, has now turned into a problem of Rome, thereby a problem of the d distracted state (4.3.26, 29), where Publius - 39). In this early modern period, legal cases provide some exam ples for the challenges against striking illustration of how the characterization of an accused as mentally ill changes his perception by the audience or the record included committing a violent act against a creditor, fleeing the jurisdiction, serving as an inept spy, threatening the life of Queen Elizabeth, behaving in a bizarre fashion at his arraignment, and possessing incoherent letters from his prison cell all of which, including allegations from witnesses, invoked an image of madness (Jardine 251). Here is a litigant who in some respect has a few similarities with Titus in that both hi s family and Saturninus determine that he suffers from madness after the execution of his sons and the rape of his daughter. The covert history of Dr. Parry poses as an anomaly, but these lat ent allegations as similarly startling, though not beyond reason. Within society, illegality must be confronted with fierce opposition, particularly in the courts. Without much deliberation, Saturninus shifts his argument against Titus to a legal judgment [s] weet scrolls to re libelous, and 4.17 - 18). Saturninus scoffs at that thought 79 and, i n his rage, declares he shall not only rebuff these feigned ecstasies Shall be no shelter to these outrages, But he and his s hall know that justice lives - 26) an turned public continues to keep Saturninus aground in his personal and public prowess (note 24 - she continues to direct this plot. In another example of unethical behavior, Alan Stewart examines and goods from various petitioners, against whom he nonetheless then ruled in cases brought to efficacy, create a scandal, and oust him from his public, legal life (Kahn & Hutson 138). Likewise, Saturninus embodies a perceived incompetence in his personal life, with his unquestioning trust in ill - intending flatterers like his wife Tamora and his incursion of the hatred and contempt of his enemies s in his treatise The Prince (63, 81). 80 While consumed with personal outrage and public perception, neither Saturninus, nor some of the most powerful asides in t he play for Tamora. Early in the play, she delivers her own at the tiresome Andronici, and muses how she will dispose of Titus: But, Titus, I have touched thee to the quick; Thy life - blood out, if Aaron now be wise, Then is all safe, the anchor in the port. (4.4.36 - 38) Tamora relishes her apparent victory over Titus. In order to assure her triumph, she must ply her lover, her enforcer, and her machiavel, Aaron, Titus, so for this empress, the key to removing Titus is not the emasculated Saturnine, but her dear Aaro evidence against her, Mary Queen of Scots is portrayed as a craft y queen who uses men for her political a An Inquiry, historical and critical into evidence against Mary Queen of Scots, vol I . 62 Her letters, in spite of their allegations of forgery, write their own story for the 63 Upon seeing the knife that Titus delivers by the Clown, his second, Saturninus orders the 62 Mary, Queen of Scots, and the Murder of Lord Darnley (4, 203). 63 Tytler 20, 89, 98, 100. 81 or merely intend provides one of the most unguarded moment that the e mperor has in the entire play. Because t he nd int olerable Saturninus considers the very public appeal by Titus as offensive and e asks two rhetorical questions here: May thi s be born as if his traitorous sons, That died by law for murder of our brother, Have by my means been butchered wrongfully? (4.4.52 - 54) These questions evolve as critical decisions for Saturninus as critical as the moment at the beginning of the play w hen he confronted the challenges to the Roman throne. Now, having assumed this seat of power, he must handle what he deems as another threat, or rather affront, to his reign. With impunity, the emperor orders: Go, drag the villain hither by the hair: Nor a ge nor honour shall shape privilege. In hope thyself should govern Rome and me. (4.4.55 - 58) Decisively, Saturninus handles the matter much as he did with Martius and Quintus where the show of any respect for the Andronici disappears. Neither public displays of etiquette nor political posturing exist. The knife and the public appeals have transformed these engagements from the 82 secret ploys and the semi - public feudi ng to an outright war to the satisfaction of his empress, Tamora. In this sequence , Saturninus displays his continued fear of Titus as better servant of Rome and a more capable emperor for Rome and her people. Along with this fear and the outrage, Saturnin bolsters him to make an ill - con ceived political move against Titus and the Andronici, which ultimatel y results in his own downfall. In this way, t his emperor is unsuccessful in either retreating from his hostile actions against the Andronici, or parleying with Tamora and her sons who serve I t is unclear whether Titus is looking for ret ributive justice here, as restitution, or re storative justice is impossible with executed sons, a violated daughter, and a slandered reputation. In this complicated wrongful conviction of his sons, w hat type of justice would be appropriate distributive jus tice or procedural justice? In both Book I and Book II of Utopia , Sir Thomas More endeavors to negotiate a concept of justice. For his discussion, he focuses on the punishment of ces and save (16 - 17), and in Book II, insists that men are deterred from crime by the enforcement of penalties penalties against the family of Andronici achieve an insidious effect, they simultaneously create a schism in his rule from which the emperor becomes unable to recover. The arbitrary nature of his rule does not meet the goals of justice, whether restorativ appeal, with fatal consequences f or this reckless ruler of Rome. 83 Conclusion (Titus 5.2.15) At every turn, Saturninus, the - giver, eschews the legal process that would foster trial and appellate rights , which would encourage truth - telling and expose lies, deceit and persi sts as a vehicle to arrive at the truth and uncover these conspiracies, where it moves from its appearance on the stage with Aaron to the abbreviated court before Saturninus in Act 2. Within the scenes of this drama, warring ideologies, theories of evidenc e, and notions of punishment function at the epicenter. Most problematically is that this realm is filled, especially in the wooded locale of this summary trial, with characters who create, covet, and collude in the obstructionism, which advanced Martius a nd Quintus to their bloody deaths. In spite of the intrigue , which surrounds the Saturninus and Titus, the wrongful conviction of two relatively minor characters emerge as the centerpiece in this revenge tragedy , and an effective critique of early modern c riminal law and subject rights . As Aaron and Tamora show themselves unfriendly to the Andronici through elaborately planted false evidence, Titus is essentially ineffectual as he shifts from heroic military general of Rome to ill - famed patriarch to this tr agic family. While struggling to find a voice for either himself or his wrongfully executed sons before Saturninus, his legal burdens effectively expose the h is murderous conspiracies with Queen Tamora and her sons, but this written evidence adeptly - lived rule. 84 As this Shakespearean tragedy struggles with the issue of written evidence and how to safeguard its integrity, the early modern era likewise struggles to find its way as it begins to - the Star Chamber though once the central force and the arbiter of perjury cases, grow passé in t he growing complexities of jurisdiction, equity, and individual rights. This early modern legal community rests its confidence on the later enactment of Statute of Frauds, the parole evidence rule, and a vigilant body of jurists, like Coke, who zealously d efend the sanctity of written proofs. Hence, the debate over the function of written proofs and the burgeoning field of trial advocacy operate within Titus and in culture to guide an effective critique evidence in its early modern condition. 85 CHAPTER 2 Authority, and Manufactured Treason in Richard III Introduction flawed documents, an d expose how these legal and cultural instruments negotiate themselves within early modern England. The indictment and the warrant in Richard III (1597) reveal these complex and flawed documents of death in their construction, their authority, and their us e in the act of treason, instead of functioning as the means for transparency (i.e. truth, justice, and liberty). 64 With their legal and material presence, these legal instruments expose the oppressive regime of Richard III and the early modern period. In f ollowing the journey of written evidence within the play, I reveal a realm trying to define the role of the king as a ruler and the role of the subject as an individual. 65 These dramatic site s of creation , distribution, and execution evoke for these legal d ocuments a separate, physical life from their creators, users, and distributors that arise as both culturally and politically relevant. 66 Othello , maneuvers several different treasonous plots. The t wo most compelling for this dissertation , Tainted Proofs , include the manufacture, the delivery, and the execution of the 64 A portion of this ch University of Maine - Farmington, May 4 - 6, 2012. 65 (1997). 66 The Stage Life of Props (89 - 116). See also J.K. . 86 his brother, the Duke of Clarence. In that of other agents to eliminate all barriers to the throne for Richard . Within these moments at 1.3, to prov ide a way of understanding the nature of evidence during this era . At once these staged properties, the warrant and the indictment, evolve in their material significance, as I consider the life of the documents over the course of the play, and place partic ular emphasis on the performative notions, which surr ound these objects on the stage. T his analysis further identifies and explores the strong, recognizable parallels from cases on the legal stage as well. While I utilize the letter to examine criminal an d appellate law in Titus Andronicus , in this history play, Richard III , I analyze the law of treason with its minimal compliance with rules through the warrant and the indictment. These particular legal documents, the warrant and the indictment, have foun d their way mere verbal references to the warrant by Slender at 1.1 in Merry Wives of Windsor and the Duke of in Two Gentlemen of Verona . Then, we move toward the physical presentation of warrants by Brandon at 1.1 in Henry VIII and the reading of indictments by Leontes at 3.2 in . Other representations emerge as complicated where the warrant, tho ugh referenced grows invisible. For example, a t 2.2, the Gaoler mentions not having a warrant in hese documents arise as mysterious, evocative, and significant for this culture . 67 67 Dark Matter : Invisibility in Drama, Theater, and Performance (2013) . 87 For instance, b efore we explore their workings in the play, let us turn to a brief description of these interrelated documents and their usage in the period. The indictment, by the fourteenth 68 written accusations (known as bills of indictment proceedings between the king and the accused person to try indictment de veloped as the manner in which a prosecution began (Baker 576 - 577). 69 These charging documents commenced the prosecution of an individual, normally for a criminal offense. could refer to the writ or the order issued by some executive authority giving a ministerial official authority to make an arrest, a seizure, or a search as well as execute a judicial sentence. On the g issued by the sovereign, an officer of the ( OED 70 and the Duke of Clarence, arise as the type of warrant, which this chapter analyzes. Cleverly, Richard chooses the indictment and the death warrant as the method in which to hide his assassinations of the Duke of Clarence, his brother, and Lord Hastings, loyal to King Edward IV, 68 indictment is the written accusat ion as preferred to the Grand Jury, before it has been by them either found a true bill, or ignored ( OED ). 69 If defendants raised objections arising out of the indictment were based in law (Langbein 26). 70 The document has also been referred to as a searc h warrant or bench warrant as well ( OED ). 88 In this way, Richard ignores the legal processes for an authorized state execution, exploits their loopholes, and privately dispatches of these men. These legal instruments demonstrate their own defective , or manufactured, conspiracies to gain the throne. These pieces of false evidence erect a façade of Richard as a reluctant sovereign warrant and indictment parallel the tenuous condition of the realm. At key moments in the life of these documents, the audience witnesses their laborious and false creation, their cloaked delivery, their nefarious service, and bloody execution. To highlight one of these key moment s , I maintain that the service of the warrant grows significant where the legal document shifts from its creation to its physical transfer for use in an i critical study of the cultural object . However, in the final p hase of the stage object, I track the legal and Lord Hastings and the Duke of Clarence. Following the life of the warrant tell the audience something crucial about this sovereign state in which they live, the laws and rules , which guide warrant exposes the state of this sovereignty that is controlled or rather usurped by Richard III. 71 In spite of the strides that these early modern courts made in the field of evidence, some (Baker 582). Still, a formal process was evolving, wh ich would see its ultimate fruition later 71 The social life of things (2008). 89 (Macnair 15 - 21). 72 Most evidence used in trial during the medieval period consisted of oral testimony, but the period also saw the emergence of predilec tion for writing (Macnair 92). Within t he courtroom , these exhi - 163). 73 In the late sixteenth century, the courts placed both an emphasis on written evidence and an expanded nature of the trial proceeding where the summary trial (i.e. an abbreviated proceeding) was less typical (Bellamy 158 - 159). Given the development fairly marked general preference for writings over 74 To complicate the reading of Richard III evolves as perhaps broader than merely proofs that are presented before the courts, which I address in other chapters in this project, as in m Titus Andronicus , the bond in The Merchant of Venice Volpone . 75 I am also considering evidence in a more general sense when revealed to litigants, attorneys, court employees, servants of the crown, etc. These documents, like the indictment and the warrant here in Richard III and the legal brief in , develop as important vehicles to supply different entities (i.e. courts, churches, theatres, prisons, and people withi n the early modern community) with information many times, false. Though these entities utilize the indictment and the warrant to bring charges against an accused or authorize an execution, in this chapter, I explain how the 72 S ee also Hemholz at 243. 73 she does not focus upon written evidence (206 - 232). 74 The first draft of the Statute of Frauds was written by Sir Henea ge Finch (later Lord Nottingham), which was 75 ( OED 90 authority, which possesses the power of the state of England. In spite of this assumed author ity, Richard adeptly prostitutes the process for his own ambition and the ultimate falling of the house of Plantagenet. This play provides an excellent example of how even at the highest levels of actors, kings and princes, the safeguarding of written evid ence, particularly warrants and indictment, must be protected. The requirement of proofs in writing becomes insufficient in the face of Richard III exposes the enormous gaps in the warrant and indictment process. Within this drama, the audience witnesses no hearing, no sealing of indictments, and no opportunity for the accused to plead his case publicly. Historically, the scholarship on Richard III amasses an extensive body of work. Yet, tho se scholars who consider the play in terms of law and literature are more finite. For instance, the work of Katharine Eisaman Maus delves into notions of inwardness, proofs, and prosecution in Inwardness and Theatre in the English Renaissance . Most importa Richard III and his role as a stage machiavel unfold as fruitful in her dissection of his character ecution of his brother Clarence, she reads these moments of proofs, conscience, and prosecution as both legal and dramatic in this play. In her chapter on Othello , she the strongest kind of evidence in both En glish and of proof, like circumstantial evidence (112). 76 76 Barbara Shapiro notes that indire Circumstances were thus the incidents of an event or particularities that accompanies an action and resulted in - 69). 91 the laws by manipulating proofs, and thus, em is conceptually separated from the visible exterior, problems of evaluating the truth of any claim - 51). She notes the analogies between courts during the early contradiction between the complaint and the public comportment of the accused cannot absolve The Spanish Tragedy cultural forms of trials, ecclesiastical court proceedings, five - - 215). Her examination, though important, does not emphasize the material and the legal proofs in terms of written evidence, as I do here. Shakespeare shares the early modern stage with several other playwrights who focus on the figure of the Scrivener (see above image) . Quite notably, Ben Jonson begins Ba rtholomew Fair with the Scrivener, who in the Induction serves the primary function of highlighting the drama as Figure 8 16th Century Scribe, Woodcut, Luminarium Encyclopedia Project. 92 a play, where the audience will be entertained. Still, this figure raises the stakes by promising the audience satisfaction at the end of the t ale (0.57 - 140). 77 Thomas Middleton, however, takes the role of the Scrivener a little further than Jonson with several comedies, The Phoenix , A Trick to Catch the Old One , and Michaelmas Term. Each of these comedies brings to bear, like ner, the problem of the written document to the vagaries of people and politics. These scriveners highlight the vulnerability of the legal document by focusing upon its materiality and construction. Each play focuses upon the nature of debts, bills of sale , and bills of release. These commercial contractions emphasize the complications with their forged, perverted, and fictional status (Gordon 181 - Richard III , the Scrivener and his indictment, serve a m ore significant role in highlighting the nature of the legal vulnerabilities for the early modern indictment. This chapter examines the construction, the distribution, and the use of legal documents, and their apparent and perceived legal authority as a to ol for executing judgment against the subjects of the English realm. The audience infers, or rather Richard assumes, a politically authoritative air to which the audience and the English subjects respond. Based upon this assumed authority, these documents evolve in the moment of their creation, service, and execution. For this dissertation , these moments grow important in the life history of these instruments and props. No real challenge to their substance and credibility in the law emerges unless we includ e the failed attempts by the imprisoned Duke of Clarence in the final moments of his life. In remarkable fashion, Shakespeare complicates this expectation of truth and transparency . The playwright presents scenes where even in the face of death, the percei ved authority and validity cannot be substantiated through these warrants and indictments. Though the Scrivener and Richard 77 In thi 93 initially appear with the indictment and the warrant as the drama develops, the documents expand beyond the force and the power of t hese men and transform as entities, as important tools for the theatres and the courts, unto themselves though fallible, corrupted, and tainted. Specifically, the first part of the chapter critiques the flawed embodiment of the law where this document works against the rule of law . I n examining the against Lord Hastings , I delve into the moment of the document where it is drafted as a legal instrument at 3.6. 78 I look at the nature of the construction and t he requirements for an indictment during this era, and consider how this document fails to meet those standards . As I contemplate , I consider of this seemingly obscure scene . For instance, in some more recent productions of Richard III, the scene at 3.6 disappears and reappears. Also, I discuss how the soliloquy at 3.6 implicates the early modern understanding of treason, for every agent who acts - conspirators. The second part of the chapter analyzes the presentation and the distribution of the warrant, w this flawed presentation of this charging document also illustrates the question with this flawed system of justice at 1.3.84 - 98. I explore the service of the warrant by assassins and its reading by Brackenbury, the Lieutenant of the Tower and the surren der of Clarence to these assassins, as part of this vexed presentation. 78 biography (Appadurai 68). 94 Finally, the third part of the chapter dissects the execution of the warrant by the Murderers equest for evidence by Clarence, and his ultimate murder at 1.3.339 and 1.4.99 - 260. In these moments, I critique the apparent legitimacy of these legal instruments and how ity, which remains unchallenged. SCENE ONE (King Richard III 5.3.76) At 3.6, Shakespeare introduces the audience to both the Scrivener and his indictm ent. This brief moment offers an explanation for the dilemma at the crux of this history play: the problem soliloquy by a character, a Scrivener, who according t o the stage direction discloses, with a paper in his hand : Here is the indictment of the good Lord Hastings, 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 95 That cannot s ee this palpable device? Bad is the world, and all will come to naught When such ill - dealing must be seen in thought. (3.6.1 - 14) Here, t he Scrivener presents to the audience the treasonous indictment for Lord Hast ings, who has as late as 3.4 fallen out of favor with Richard. Consistent with the law, t he indictment explains the ju stification for his execution. Specifically, t style of writing for this professional In essence, he highlights the enlarged richly th eatrical (41). On the stage by himself, the Scrivener presents the story of this document to the audience. According to his monologue, h - the Scrivener explains how his professional scribe expends much energy , as evidenced by his constant references to the indictment as the act of writing, the act of falsifying, which implicitly functio ns as In one line after another, the Scrivener underscores the importance of this document the key 96 In addition to its past , whic h the Scrivener describes in detail , t he document also has a future, where t Ironically, he began writing this indictment of Lord Hastings before his execution, ithin five ho condemns him without a hearing, w ithout any preexisting charge. Essentially, the Scrivener observes forlornly Ironically, he find is executed in this good world. In this realm, his consternation and outrage grow as he asks: is so gross / th a t cannot see this palpable device? lacks any credibility. In spite of its vi sible the Scrivener further inquires, bold but says he - larly when people within this state of England cannot admit these wrongs openly they may only say such things privately. After delivering these fourteen lines in the play, the Scrivener is neither seen n or heard by this audience again, yet h is soliloquy of fers an explanation, both legal and cultural, for this p articular document in his hand and its proof in the state of England. 79 While this scene unfolds as startling in the revelation of corruption, the most conspicuous part of this scene emerges not from t he contents of description , but the method of drafting this false indictment for Lord Hastings. The Scrivener describes his labor in the numerous hours to create this final version of the indictment, including its multiple drafts. Emphasizi ng his artistry, he applauds the writing, 79 (2008) at pages 40 - 41. Gary Watt briefly refers to the - 203, in his book, Equity Stirr ing: The Story of Justice Beyond the Law (2009). See Hamlet - 46, in Donald Beecher, Travis DeCook, A ndrew Wallace, and Taking Exception to the Law: materializing Injustice in early modern English literature (2015) . 97 public and private life, and finally its deadly consequence for Lord Hastings. Ultimately, he describes a document of legal, political, and cultural consequence. The indictment performs a work for this play that develops as separate and distinct from its traditional role as an appendage to the subject, here the Scrivener. This chapter examines how the indictment in Ri chard III materializes as a legal document, which cannot be trusted. This scene this moment illustrates the agency of those individuals who for diverse reasons, including fear, treasonous conspiracy. 80 Yet, beyond the play, the document possesses meaning, power, and authenticity outside of its current stage in its dramat ic biography. Though it begins as a means for Richard to propel his conspiracy to usurp the throne, these legal instruments and theatrical props evolve as proofs that the very notions of representation, appropriation, and mimicry may supersede the present historical moment. In effect, they create a larger cultural dynamic, and present significant political and legal troubles for this sovereign state. From his own explanation , the Scrivener, this professional drafter, emerges as one of many actors in the lif and brief as the moment is, suggests a type of agency as he reveals the past, the present, and the fut ure of this indictment. At once, t his document itself embodies quali ties , which are temporal, physical, legal, cultural, and perhaps performative. The document is temporal in that it possesses (3.6.6). It is physical because i t moves from one character and one space to another it shifts from 80 Eight generations, approximately 245 years, of the Plantagenets ruled England in an unbroken succession from Henry II in 1120 to Richard III in 1399, as Dan Jones observes in his The Plantagenets: The Warrior Kings and Queens Who Made England (2014) (245). 98 indictment is legal because in its creation it operates as the charging document, which will l atently Sir Richard Ratcliffe display for the audience (3.5.18). The indictment is cultural because the ctive social significance. This professional writer evokes references to several facets of document from legal to personal in this society. Finally, the indictment reveals performative qualities where the document becomes dynamic, not static, and its other qualities visual heighten our senses. Still, there unfolds a performative element to its legal characteristics as well in essence, this prop performs a legal and political objective for Richard in his ambitious plot to rule England. The Question of Perfor mance this solitary moment with this solitary character where nothing exists except this scribe , who stands 81 This prop is suppo hand. 82 On this barren stage, the Scrivener has, without equivocation, admitted that this document is flawed in that it operates as a cunning tool. hich orders the execution of Lord William Hastings for his allegedly treasonable acts against the future throne of King Richard III. Yet, this soliloquy informs the audience that things here in this British realm are 81 Ericka Lin offers a discussion of physical proximity in terms of locus and plateau or center and prox imity to critique the placement of Richard on the stage during his soliloquies as Duke of Gloucester as opposed to his aspect in stagi ng in early modern texts (28). 82 - 119 in his book Shakespeare and the Question of Culture: Early Modern Literature and the Cultural Turn (2003). 99 not what they seem, documents are not t hey say, and people are not as Richard himself discloses 83 In this way, t the play it warns us of the treacheries , both are spoken by Richard. At 1.1, Richard says to his brother, George, the Duke of Clarence and Sir Robert Brakenbury, Lord of the Tower: Brother, farewell. I wi ll unto the King, I will perform it to enfranchise you. Meantime, this deep disgrace in brotherhood Touches me deeper than you can imagine. (1.1.106 - 112) With seeming passion and sincerity, Richard delivers thi imprisonment 84 Clarence, as elder brother to Richard, would supersede him to the throne, according to the rules of primogeniture. 85 etymology from Middle French and in one of its early meanings, from 1460, references a - immaterial object ( OED ). 86 Its meaning shifts from both 83 role and ultimate force to ascend the throne as Richard III, see pages 234 - The Story of Britain: From the Romans to the Present: A Narrative History (2005). 84 The Tower of London in English Renaissance Drama: Icon of Opposition (2008) (85, 134). 85 Seee Baker 303, 306. 86 th Henry VIII at 1.1.127 (132). 100 person and object. to be both debased and obedient. So too, the Scrivener and this indictment serve Richard to be both debased and obedient romises to from the will of their brother King Edward or his future widow. In this moment, Richard acts as one who suffers from this obedience, for in the stage ontrast, the Scrivener, without weeping, delivers the soliloquy in a true conflict between obedience and disobedience each with dark consequences. 87 next reference to performance finds Richard requiring an unfathomable undertaking. In this scene at 4.2, Richard commands Buckingham: O bitter consequence That Edward still should live true noble prince! Cousin, thou wast not wont to be so dull. Shall I be plain? I wish th e bastards dead, - 20) A conspicuous preparation for the performance of murder permeates both this scene between Richard and Buckingham at 4.1 and the earlier sce ne between Richard and Clarence at 1.1. 87 2.3 and the silent Londoners at 3.7, of 101 indictment operates as the ve hicle to cloak its malevolent invention character of Lord Hastings as well. Earlier in at 3.5, Richard and his co - conspirators assassinate appellation. In the pre vious scenes, the audience witnesses the false accusations against Hastings. : do conspire my death with devilish pl ots Of damned witch craft, and that have peva Upon my body with their hellish charms? (3.4.60 - 62) He calls Hast Off with his head! Now by Saint Paul I swear I wil l not dine until I see the same. (3.6.75 - 77) To remove all obstacles to the throne, Richard collude s with others, particularly the Duke of Buckingham and Sir William Catesby, to get rid of those who pose a threat. Richard tells Buckingham his suspicions about Hastings: Catesby hath sounded Hastings in our business, 102 That he will lose his head ere give c onsent - 40) In this moment, Richard expresses his dissatisfaction with Hastings , who refuses to play a role in indictment merely serves as the legal cover - up in its poign antly material display at 3.6. In this scene, the Scrivener confirms what the audience already believes. Through this soliloquy and the presentation of the indictment, he reveals that Hastings is good . At the same time, conspiracies the subject of the scene, the indictment for his death grows difficult to ignore . As much it operates as a legal vehicle, the presentation of this indictment displays, I imagine, the artistry of this professional drafter. Because many of the paper props were not saved by the theatrical companies, the features of this stage property g row difficult to determine for this period. 88 Yet, we might make a comparison to indictments, like that of Robert, Earl of Essex. 89 His treasonous offenses against Queen Elizabeth I were not only on display at his trial, but were read aloud, where the court listed his charges in great detail (see images below referencing 88 and Korda 114 - 116) and Brust Staged Properties in Early Modern English Drama (71). 89 See - State Trials where the Clerk of the Crown read the Indictments of Earl of Essex and Southampton during their trials (1335 - 1336). For further examples of treason , consider Sir Thomas More. time of his accusations allowed for an opportunity for his words to speak another voice of resistance to the device created by his trial for treason. 103 evidence and trial against Essex) . 90 Likewise, I imagine this stage property is large, as it is an Ch (3.6.2). 91 From its Anglo - lar way of writing for legal documents ( OED ). The Scrivener presents this document written in large print to this audience , which has witnessed the unfair charges against Lord Hastings so recently fallen at 3.6. The document and the character, the Scrivene r, operate as constant reminders in the purpose of the scene: to demonstrate the trouble with evidence in this realm. In fact, this scene continues to shift corrupt subjects act to imperil other subjects with the help of a well - placed indictment. 90 prohibits his right to impose the law, or his o by Robert the late Earle and his Complices against her majesty and her K 91 This reference suggests the documents formal, legal objects as it illustrates a formal hand with large characters, as Anthony Hammond, editor of Arden edition, notes (244). 104 Figure 9 Francis Bacon, A declaration of the practises & treasons attempted and committed by Robert late Earle of Essex and his complices, against her Maiestie and her kingdoms , 1601, Paper, Huntington Library and Art Gallery , EEBO STC / 1338:09. In a 2009 production of Richard III , Steve Pringle plays the role of the Scrivener at 3.6, in soliloquy. He walks around the darken ed stage with the stage prop the indictment of Lord Hastings in his hand. Yet, in the 1996 production, artistic director Barbara Gaines, who produced both plays at the Chicago Shakespeare Theatre, removes this scene. Why was this Scrivener removed? One cou ld argue that like most staged productions sets, particularly in such large productions like Richard III . Yet, in the 2009 production, the Scrivener and the i ndictment conspicuously returns. This figure of the Scrivener and his presentation of this legal document evoke an intriguing relationship between the character, the 105 document, the law, and the early modern period. 92 Shakespeare provides a scene , which expla ins, in part, how Richard will justify the execution of Lord Hastings, friend to King Edward IV, and the indictment of Hastings as a traitor. The scene essentially ties together the e arlier scenes, 3.4 and 3.5, where Hastings is accused and executed, respectively. describes the evolution of the document, offers an interesting tension in this scene th at reveals the legal process given some productions, like Chicago Shakespeare Theatre (CST) in 2009, perform this scene, and others, such as CST 1996, exclude the scene. Also, the process by which subjects obtain and execute arrest and death warrants arise Richard III (1591). The play not only dramatically represents this controversy through the movement of written evidence as props, but also this indictment makes an important intervention, where egal process for executions rests in these state papers. This inquiry follows the figure of The Scrivener and Richard, as they negotiate with and around specific legal instruments, the indictment and the warrant. This chapter examines this counterfeit lega l instrument, notions of authenticity, and stage property. 93 In addition, I critique the institutions and the agents that utilize them and the legal and material contexts , which embed them within this early modern era. In particular, the Scrivener exhibits the fraudulent legal indictment of Lord 92 I viewed the 2009 in one of its live performances, but saw the 1996 production with the assistance of the Education department at the Chicago Shakespeare Theatre in December 2011. 93 her book, Gender and Liter acy on the Stage in Early Modern England (147). 106 producing fraudulent indictments when his men delivers a suspicious death warrant for the Duke of Clarence at 1.3 in Richa rd III . 94 Though other references to warrants and commissions appear in the play, only this scene, through the indictment, states explicitly that a problem emerges in the state of England this future kingdom of Richard III. At the outset of this chapter, I mentioned that some productions of the play do not include the scene with the Scrivener. While some might argue that the rationale lies in the economy of time in stage production of the play, other scholars, like Jyotsna Singh, might argue that the appeara nce and disappearance of the scene may lie in the complexity of the scenes temporal quality . For instance, the Scrivener describes events, which occur both before and after the execution of Lord Hastings. 95 complexities lie in its connection to the soliloquy attempts to bridge events , which happen before and after scribe admits tha In essence, his monologue describes the life of this indictment, where part of it existed while Hastings was alive. However, within the narrative of the play, the audienc e has already witnessed alone presents intricacies for the actor and the audience as well. In spite of these complexities, the scene ripens into one of the anch the other is the death public story that Richard needs to legitimize not just the death Hastings, but his future place on the 94 For this chapter, I utilize the Arden Shakespeare, edited by Anthony Hammond. 95 Singh, Jyotsna. Discussion with Lisa M. Barksdale. 1 June 2015. 107 indictment provides a public effort at an untainted throne. Does not the deleted scene possess a philosophical meaning that is just as important as its dram atic one? Arguably, the scene still remains within the play theoretically, even when it is removed physically by an individual performance. 96 Yet, something significant does happen to the political, legal and cultural imperatives here in 3.6 with its actual removal, even where its theoretical and philosophical implications persist. A palpable tension exists here in what evidence actually means. Still, is it even possible for the director, here Ms. Gaines, to delete the meaning of the indictment? Or, has the document with this delineation? Meaning, the role of the Scrivener in the life of the document is essentially eliminated with the removal of this scene. The beheading of Lord Hasting occurs even legally or performatively is removed dramatically. There arises a complication in what legal documents actually represent at this particular moment. Though this historical play repres ents events, which happen almost two hundred years earlier, this moment surfaces as important in this early modern moment as well , particularly with Robert, the Earl of Essex . An issue of treason a viable threat to the throne comes out of these legal docum ents. The manipulated state of these written proofs turns into an 96 Andrew Sofer observes that playwrights must decide what will be seen and unseen in his book, Dark Matter: Invisibility in Drama, Theater, and Performance (15). Yet, how do we think about those scenes which directors, not playwrights, cut? 108 The Question of Treason With well - and its impact on Bri these documents of death speak loudly of treason. In particular, the indictment in this scene calls rivener st ates this quandary explicitly: bold but says he see it not? Bad is the world , and all will come to naught When such ill - dealing must be seen in thought. (3.6.12 - 14) The Scrivener notes the sad state of the world where such tricker amount to treason. 97 conspiracies in which Rich well the sequel hang s realm transform into willing, and some reluctant, agents of conspiratorial plo ts against the individuals who cautiously serve this aspiring king. Ironically, at several moments in this drama, Richard 97 ed by this depiction of treason. Unlike Mukherji, I consider the role of audience and this treasonous document in Richard III , on the stage suggests further insight to how deception is measured during this era. 109 n. 98 We too, as the audience, grow engaged Then be your eyes the witness of their evil. Is like a blasted sapli Consorted with that harlot, strumpet Shore, That by their witchcraft thus have marked me. (3.4.67 - 72) In the course of this brief dialogue with Hastings, Richard asks this doomed Lord Chamber lain to As a consummate actor, this machiavel plays the role of victim. 99 By comparison, the Scrivener argue that this Scrivener refers to more than this legal document , for its implications grow exponentially . He intimates to the larger conspiracy at work in this British r ealm because Richard seeks the throne at al l costs. Here, the plot, the Scrivener, and the indictment will serve this aspiring king well in this criminal scheme against Lord Hastings. transparency. Ironically, an e xpectation of veracity and lucidity arise as inseparable from this legal 98 Richard also uses the word at 1.3 when he g 99 Titus Andronicus , I also refer to Aaron the Moor as a machiavel. See also Anthony - identification as machiavel in 3 Henry 6 (104). Ironically, here in this history play he plays the victim of those who set upon him. 110 document. The issue of transparency grows inescapable in this play where the indictment operates as the key prop for understanding the dynamics of treason. This treason evolves in its layered - 11). 100 He suggests that the audience must collusion. Using the same word, Prince Hal asks a similar question in Henry IV, part 1 : What trick, what devi ce, what starting - hole, canst thou now find ou t to hide thee from this open and apparent shame? (2.4.255 - 257) 101 t, Hal suggests that the device evolves as uneasily hidden this within this realm. This document exposes that trick this conspiracy to murder Hastings and ascend yet no willing voices raise to admit to the 102 on the early modern stage, we must also consider the definition of treason during the period. For example, in the Essex trial (see image below) 100 Titu s Andronicus . 101 Othello . 102 Treason by Words serves as instructive in the layered pretense c loaked in this rhetorical phenomenon, as I consider the multi - faceted deceit that each actor, including but not limited to the Scrivener places upon this indictment for Lord Hastings. 111 Treason is nothing else but [criminal high treason or diminished high treason] making every offence which abridgeth or hurteth the power and authoritie of the Prince, as an insult or invading of the Crowne, and extorting the imperiall Scepter. And for common reason, it is not possible that a subject should once come to that height as to give law to his Soveraigne, but w hat with insolency of the change, and what with terror of his own guiltinesse, he will never permit the King, if he can chuse, to recover authoritie, nor for doubt of that, to continue alive. Such pronouncements of concepts define the legal, cultural, pol itical, and criminal lives of the British subjects. This idea of treason evolves over the course of this period and unfold as compelling and complex. Necessarily, these written statements on the conditions under which subjects may live freely within the re alm becomes transformative for these subjects thereby providing an impetus to challenge these declarations. On both the legal and theatrical stage, the sovereign and his or her agents help to determine what happens to such definitions as warrants or indict ments rewrite previously identified boundaries. 112 written words. She argues that t Gunpowder Plot, as an example (3). While Lemon focuses on the rhetorical moves, like scaffold speeches, and the effects of treason, I emphasize the written moves and its effects that accrues rhetorical gesture in 3.6. The indictment accompan ies the Scrivener on the stage. This instrument receives all of the attention , warrant for Arthur at 4.1 in King John or for Claudio at 4.2 in Measure for Measure . This impact of the Scriven the ways in which legal dimensions of the written indictment intersect with the social, cultural, and performative aspects and ramification of imposing fraudulent legal accusations. For ins tance, Figure 10 Robert D evereux Earl of Essex, The arraignment, tryal and condemnation of Robert Earl of Essex and Henry Earl of Southampton, 1679, Paper, Huntington Library and Art Gallery, EEBO Wing / 805:37. 113 it demonstrates how the unreliable, illegal, and tainted proof within the play transforms into an object, larger than its initial purpose. Even in its imperfect state, the document moves beyond the initial biographical moment, designed by its archit ect, Richard, and shifts into an impetus for a discontented faction for an entire realm. In the following section, I will chart the journey of the death warrant, which materializes on the stage . SCENE TWO : 1.3.344: Richard Delivers the Warrant for the Duke of Clarence (5.3.220 King Richard III) At 1.3, Shakespeare provides a provocative dialogue between Richard and his two assassins, Murderer 1 and Murderer 2, as he delivers the death warrant for his brother Clarenc e. As the assassins appear within hearing distance, Richards utters: But soft, here come my executioners. How now, my hardy, stout, resolved mates; Are you now going to dispatch this thing? (1.3.3 .339 - 341) In a most complimentary fashion, Richard bolste rallies these recruits with reminders of their fortitude, courage, and most importantly their come to have the warrant, / That we may be adm - 345). In order to get into the Tower, where Clarence is imprisoned, they must have permission. They need a warrant. To this request for the warrant, Richard responds: Well thought upon; I have it her e about me. 114 When you have done, repair to Crosby Place But sirs, be sudden in the execution, Withal obdurate: do not hear him plead; For Clarence is well - spoken, and perhaps May move your hearts to pity, if you mark him. (1.3.344 - 349) Richard remarks tha t having a warrant is a good idea, as he possesses the warrant for Clarence wants the execution to be swift and unforgiving. They cannot listen to the pleas of Clarence, for his brother is persuasive and compelling. With good reason, Richard warns them, for later, Clarence beseeches these hardened assassins for his life: Have you that holy feeling in your souls To counsel me to make my peace with God, And are you yet to your own souls so blind O sirs, consider: they that set you on To do this deed will hate you for the deed. (1.4.240 - 245) While both assassins may have been moved by the words of this doomed prince, Mur derer 1 115 Here at 1.3, Richard wants these executioners to remai any pitiable affect on display by Clarence within those prison walls. Assuring Richard, Murderer go to use our - reminding him that they are men of action not men of speech. They use their hands for doing not their tongues for speaking. Reassured, Richard declares to these assassins: Your I like you, lads: about your business straight Go, go, dispatch. (1.3.352 - 354) In his parting gesture, Richard compliments the hard - hearted nature of these men. Where other men display tears of water, t hese men cry tears of stone. These are serious men sent to dispatch testament to the crime that the accused has been charged with committing. 103 In a dialogue at 3.1, Prince Edward captures this ideal of truth: Methinks the truth should live from age to age, Even to the general all - endi ng day. (3.1.75 - 77) 103 n, an officer of state, or an administrative OED ). 116 In addition, the warrant should offer the transparency of evidence , as discussed earlier with the indictment, so that those jurists whether advocate or judge who may advise the accused as to the seriousness of the charges against him. A s a result, they may determine how to adjudicate effectively the matter. 104 The document should also offer the authority by whom the charges are vested , which would further strengthen the reliability of the evidence against the accused. 105 warrant for the Duke of Clarence grows out of a realm inflicted with the disease of sedition, conspiracy, and murder. Indeed, Richard seeks sedition to overturn the order of things by unseating the king, Edward IV, and undermining those who might have a st ronger claim than himself to the throne. But, he wishes to do so under the guise of legal process. No longer satisfied as Duke of Gloucester, Richard conspires with diverse subjects, including Buckingham and Catesby, in mini - Iago in Othello . In his opening soliloquy, Richard discloses the: Plots have I laid, inductions dangerous, By drunken prophecies, libels, and dreams To set my brother Clarence and the King In deadly hate, the one against the other: And if King Edward be as true and just As I am subtle, false, an treacherous, 104 Subsequently, counseling the accused who is not, under normal circumstances, privy to the charging document (Langbein 51). 105 See Mich State Formation in Early Modern England, 1550 - 1700 (285). 117 This day should Clarence c - 38) designs for this warrant also include the m urder t his incarcerated brother. This part of the chapter explores the problematic nature of the warrant, its service, particularly as it relates to the Duke of present - Instead, the playwright offers a warrant, which rests on the work, the power, and the authority that arises as perhaps uns een and unrealized yet, quite remarkable i n its centrality to this drama . 106 The Problem of Reading audience in a striking performance. In contrast, later in the play, the death warrant for the Duke of Clarenc e is read, but with much brevity. The scene offers the audience neither a full reading of the 107 Again, here on the stage, at 1.4, there appears a conspicuous warrant, which is offered in an ostensibly, but cloaked manner. Though emerging as a weighty matter of conspiracy, treason, and assassination, the scene possesses an official air of state business. In this scene, Brackenbury, Lieutenant of the Tower, reads the charging docu ment to the Duke of Clarence, and 106 Magnyfycence is significant as he posits the significance of writi Cormack uses this discussion of the warrant within quo warranto by Henry VIII to critique title to hunting privileges, collect fines, or held court (73 - 76). This discussion considers warrants outside of treason, where commercial transactions, inheritance, and other financial relationships become impugned by the unlawful use of warrants, as Middleton stresses in his comedies, which surround the figure of the Scrivener. 107 The Duke of Clarence is third in line to the throne the tower later by Richard. 118 - 92). There evolves trouble with this 108 These simple lines s not unlike the earlier reference Nevertheless, this re ading of the warrant performs work, which seems distinct from the Brackenbury does not editorialize as the Scrivener does, his words offer a distinctive commentary , wh ich incriminates the actions surrounding the warrant for the Duke of Clarence. As Lieutenant of the Tower, his role seems no more than a turnkey, locking and unlocking the gates of the Tower of London, as he is commanded. As Murderer 2 is brief in his salu tation to Brackenbury at line 87, this warrant is similarly bereft of no more information other than requiring Brackenbury to relinquish his custody of the Duke of Clarence, a royal prince, to these murderers for hire. Even in the brevity of this commissio n, Murderer 2 allows the document to speak for both him and his companion, Murderer 1. In this sense, the warrant develops, as its definition suggests, an authority to act. The authority is assumed and the warrant turns into the justification of this act. While the Scrivener later tells the audience in 3.6 what the indictment contains, here in the well. This act of reading offers a moment that materializes as disti upon the invalidity of its contents to the audience. At the same time, it is not readily apparent that 108 119 Brackenbury reads the entire do cument. Perhaps, he merely shares with the audience the pertinent - 92). However, I think the stronger argument is that Brackenbury has read the entirety of the document. In the previous s cene at 1.3, the Murderers appear with Richard and ask for the warrant so that they might gain access to the Duke of Clarence. I imagine that Richard did not invest the eleven hours that the Scrivener committed when he manufactured a warrant for access to the Tower in order to remove Clarence from scribe crafts a document, which apparently justifies the execution of Lord Hastings. Richard, here in 1.4, merely wants access to Clarence, for he is arrested and imprisoned at the behest of the King. Consequently, Richard, Duke of Gloucester, does not have to justify anything more to Brackenbury and the Keeper of the Tower. 109 The Problem of Service es some insight in the manner by which this service of process by Brackenbury is performed where he must relinquish his duty to protect legal hile the nomenclature may fit contemporary law, there exists an the chapter. This delivery of the warrant cannot be overlooked. 110 While scholars focus on t he verbal delivery of the actors, I concentrate on the delivery of these stage objects -- namely the movement of the theatrical object, as Jonathan Gil Harris explains in his notion of Shakespearean 109 Recall that Brackenbury is the Lord of the Tower. 110 Alehouses and Good Fellowship in Early Modern England (91, 97). 120 - and legal instrument to study how they are perceived as written evidence, as a commentary on their vulnerable statu s during this early modern era. Brackenbury emerges as a crucial moment in the life of this legal document. In this instant, where the delivery is performed by two murderers, the warrant evolves as highly inflected with criminality. These murderers, in their stoic manner, present themselves before this Lieutenant of the most elevated inmate over which Brackenbur y currently provides care. Before the Murderers enter, the Kee per reveals that this Lieutenant of the Tower prognosticated correctly: Sorrow breaks seasons and reposing hours, Makes the night morning, and the noontide night. Pri nces have but their titles for their glories, An outward honour for an inward toil; And for unfelt imaginations They often feel a world of restless cares: So that between their titles, and low name, - 83) 121 Yet, for this prince, his repose will have finality. Brackenbury recognizes the waste in envying the more startling, soon take his place. Although the warrant releases Brackenbury from further responsibility for the custody of the Duke of Clarence, - 97). How should we read this the manner and mien of these two murderers? Or, maybe Brackenbury wants full deniability wh en these murderers spill royal blood? In this moment, I contend that the service of this warrant disturbs Brackenbury. These murderous figures, I imagine, present a hardened visage, even within the secure walls of the Tower. 111 While filled with the dread of complicated by this legal instrument with its tainted status as an arm of justice, an arm of sovereignty, and an arm of the futu r e rule of King Richard III. 112 As I mentioned earlier, the warrant possesse s certain expectations. The warrant serves as a manner in which justice may be achieved through the accumulation of evidence to provide sufficient cause to present a case against an accused, in this case the Duke of Clarence and mirroring the later indictm ent of Lord Hastings. The warrant also operates as a way in which the sovereign state of England to keep order, maintain its subjects, and deter factions, which would fell the country. In addition, the warrant acts to protect the monarch against those who would seek to overturn the proper line of succession, the power 111 Kristen Deiter discusses the use of the Tower as a place of safety, including for Edward II and his struggles with Roge (32, 38, 42). 112 Political Space in Pre - Industrial Europe (223 - 226). 122 and authority that vest with the rightful king who sits on the throne for his people. This legal instrument plays a significant role within the play, the courts, and the early modern society. Yet, The Comedy of Errors apply here warrant for Clarence unfolds display, Richard and his a gents complicate the objectives, the expectations of reliability, and the trustworthiness that the society has for these legal documents. The pl ay offers a persuasive critique, which resonates wi th this society , which bear s witness to those accused who were arrested, tried, convicted, and executed with fledgling evidence, secret trials, and closeted executions. For Richard, his ambition supersedes any such miscarriage of justice. Within this real , or secure in the Tower of London when examining the problems in the delivery and the service of warrant. 113 The scene does not elaborate upon the warrant that is delivered to Brackenbury, the Lieutenant of the Tow er. Brackenbury does refer to any seal. He does not mention who, if anyone, signed the warrant. 114 In spite of these deficiencies, the audience would note some disparit ies from the previous scene at 1.3, where the Murderers obtain the warrant from Richard. Under normal circumstances, the requirements at the Tower seems quite regimented, like many prisons. 115 Noticeably, Brackenbury 113 James Sharpe d iscusses the duties of the office of sheriff including executing warrants, writs, presentments, and informations; and, the problems, which arise when individuals fail to execute warrants, Crime in Early Modern England, 1500 - 1750 (47 - 49, 106 - 107). See also disputes in her book (41). 114 eptember 1665 for The Histories and Antiquities of the Tower of London with Memoirs (626). 115 of those in Political Culture and Cultural Politics in Early Modern England: Essays Presented to David Underdown (33). 123 does not flee from his duty to obey the w arrant, but does seek, apparently, direct authority to confirm the validity of the warrant. Not unwisely, Brackenbury realizes that his own life is matter of this prince, the Duke of Clarence. To see how important the warrant is, let us follow the service of process, the execution of the document, and the drafting of the document to address the tainted status of the indictment or drama, we can find several moments in the life of the warrant, corrupted beginning of the document commences at the request for the warrant. This moment operat es as an interesting metaphor to the birth of an identifiable and written site of the corruption. lack of knowledge will keep him innocent of any actions , there exists an innocence found in a realm, which remains silent in the face of the atrocities at the hand of Richard. His soli loquy for all its truth bears all. In contrast, this dialogue between Brackenbury and the Murderers materializes ning. A significant gap in the exchange of information arises in this moment. In spite of this chasm, nothing is said yet, everything appears out of order. A lack of order develops in this service of process, As legal documents, the warrant and the indictment function similarly, yet possess their distinctions. There exists some attributes where an identifiable sense of history, time, physicality, performativity, and association with the character of Brackenbury an d similarly exudes in the 124 scene with the Scrivener. Because the warrant for t he Duke of Clarence is brief, t he scene lacks the indictment. However, a notion of physicality, if not time, materializes where the audience may assume that the legal instrument was drafted by Richard and given to the Murderers who submit the document in exchange for possession of the Duke of Clarence. If anything arises from this scene between him self , the warrant, and the murderers. 116 Hence, the warrant rests as one crafted by Richard and circulated among the court to secure the death of his broth er, Clarence. 117 The Problem of Surrender In the context of war, the notion of surrender involves one side acquiescing to his opponent. Indeed, a similar dynamic unfolds Richard delivers his warrant to the assassins, they serve this warrant for the Duke of Clarence on ost striking part of the surrender is the speech, which Brackenbury delivers after reading the warrant: I am in this commanded to deliver The noble Duke of Clarence to your hands. I will not reason what is meant hereby, 116 Vanitas painting (1661), discussed in Subject and Object in Renaissance Culture , filled with objects and only faint evidence of their traditional subjects in the form of skulls, paintings, and worlds still under exploration (de Grazia 1 - 42). 117 It is different fro m the service of the warrants that the audience witnesses in either Arden of Faversham or Bartholomew Fair . The service of these warrant seems cursory. 125 Because I will be guiltless from the meaning. There lies the Duke asleep; and there the keys. - 97) Richar Brackenb ury does not refute the validity of the warrant, nor the two Murderers possession of such a warrant. The warrant reveals the key to the kingdom not merely for Richard, but the Murderers too. In their brief possession of the warrant, they grow into legal ma lefactors who obtain a crucial King Henry VI, for his mere existence grows as a threat to Richard. In his reach for the crown, Richard does not consider either of his brothers as potential co - conspirators ; rather, they are his opponents, if not his enemies . His ambitions develops into a war for the throne. Having learned from earlier plots, murder provides a simpler means of disposal than trust in this play. Igno rant of murdered as those before him to make way for Richard. With good reason, Brackenbury does not refute the validity of the warrant, for he reads the veiled thre at in the brief words of Murderer 1. The presence of these hired assassins give Brackenbury and the Keeper of the Tower reason to relinquish not only the Duke of Clarence, but to remove their presence from the Tower as well. unfolds as distinct from the life of the warrant. For instance, Brackenbury does not inquire into the rationale for the warrant and the 126 - 94). His words int imate some sense of suspicion about this process of surrendering the duke to these men. Even further, Murderer 1 intimates that the refusal to transfer custody of the Duke of Clarence to them may have resulted in the possible death of Brackenbury, for after Brackenbury the son of a king, materializes brave st and against these murderers. Not only does Brackenbury leave, but the Keeper of the Tower exits the stage as well. They remove themselves bodily from this affair and, apparently, report to the King. In a very direct way, the surrender of the Duke of Claren ce evolves as life - imagines the possibility of mortal danger, where Brackenbury must confront the gravity of the danger face - to - face. In following the life of this warrant from creation, service, to execution, the undercurrent is one of imbalance where the nature of corruption, misbegotten rule, and the shedding of innocent blood parallel the tedious hold upon order that exists within the play, but mimics the s tate of the country, where the realm reveals itself as dysfunctional. In contrast, when summoned by his queen, R obert, the Earl of Essex refused to be called or defend himself . 118 His response, rebellion, may be considered as an unreasonable response to a ra tional request for explanation by a beneficent servant of Queen Elizabeth I . Yet, here the Duke of Clarence is arrested and served without any fight, flight, or rebellion. While both were had he responded like 118 State Trials , vol. I (1340). 127 Essex? Here, the problem of warrants, authority, and treason suggests the issue of challenged authority with respect to Duke of Clarence, threat to the throne, and public, legal authorization versus private unlawful justice. Essex was a threat to the throne where Clarence demonstrated no , had a public trial where evidence illustrated his traitorous acts and character. Nevertheless, Clarence and Hasting fall , like Essex. 119 SCENE THREE (Duke of Clarence 1.4.66 - 67). death warrant arises as a sign ificant moment in the life of this legal instrument. Usually the site of execution occurs in some prison like the Tower of London for - conspirators in the Essex rebellion (Everett Green 409). Within this play, t he execution of the warrant similarly takes places at the Tower. In Richard III , the execution of the warrant scene, at 1.3, unfolds as the first where the warrant appears in the play in a significant way. Though no stage direction alludes to its physical presentation on the physical and legal instrument to obtain access to the Duke of Clarence. Here, Richard transforms 119 While del ving into the scene where the warrant for the Duke of Clarence evolves as the focal point of this analysis, I wish to consider briefly the contribution of the warrant to the cultural materials represented during this early modern era. Since the outset of t his chapter, the discussion of the indictment and the warrant, both here focused upon the death of the accused. Yet, the warrant functions as a source of freedom as well. In July 1601, Warrant Book I, on page 94, sets forth several warrants, which release those men who played some identifiable was read at the trial of the Earl of Essex and Southampton, including Earl of Rutland, the Lord Sandys, Sir William Parker called Lord Monteagle and Lord Cromwell from the Tower Prison and Sir John Davis and Edmund Baynham by warrant. Three warrants w ere issued one to the Council to dismiss the prisoners and the others to the 128 into, at this moment, what appears to be t he author, or the source of the warrant. He emerges as the designer or the architect of this conspiracy to murder his brother, Clarence. An apparent authority unfolds , as inextricably attached to this document for said access. The expectation arises that t he warrant appears to possess truth, veracity, and verisimilitude. Nevertheless, in this scene, Richard discloses in soliloquy how his secret handling of the warrant for the Duke of Clarence (and later the indictment of Hastings) and his agents parallel h is character: I do the wrong, and first begin to brawl: The secret mischiefs that I set abroach I lay unto the grievous charge of others. (1.3.324 - 326). lays the blame before others. As an example, he admits that: Clarence, whom I, indeed, have cast in darkness, I do beweep to many simple gulls, Namely to Derby, Hastings, Buckingham. (1.3.327 - 329) For some, t he imprisonment of his brother Clarence grow s woeful , and Richard embodies that affect of concern before his dupes, Derby, Hastings, and Buckingham. To detract from his own culpability, Richard lays all of the blame with: That stir the King against the Duke my brother. 129 N ow they believe it, and withal whet me - 333) As a calculating mastermind of complots, Richard successfully convinces most of his slanderous tales against the Queen and her allies. Now, factions encourage Ri chard to prepare for attack her Rivers and her sons, Dorset and Grey. In response, Richard counterfeits [and] Tell[s] them that God bid us d - 335). Like all of his secret mischiefs, he discloses in soliloquy: I clothe my naked villainy With odd old ends And seem a sa int, when most I play the devil. (1.3.336 - 338) In his vill ainy, Richard hid es in piety, and provides all the more reason that we apply a decided skepticism of legality to any document in his possession. The Request for the Warrant The warrant operates as a written document for entrance, permission, power, and authority to do as t he instrument dictates. 120 In this moment at 1.3, the two Murderers request the warrant into the vital source of access that allows these misguided subjects to ac t upon an identifiable 120 Renaissance scholar Kristen McDermott offers that we can also compa to enter in this moment with the theatrical entrance of the player on the legally ambiguous space of the stage and 2013. E - mail. 130 authority Richard. Upon this authority, the Murderers may gain access to the Tower where Clarence is imprisoned. Yet, beyond the access and the authority to enter the Tower, the warrant represents the problem with all instruments as they convey a perceived authority to gain access to all manner of power, privilege, and property. Here, in this conspicuous exchange, the warrant physically shifts from Richard to the two Murderers. Though Richard possesses the warrant, he does not make any significant references to either its content, its authority, or its validity. In response to the request for the warrant, Richard merely Figure 11 Charles I, By the King, a proclamation concerning some ill egall warrants lately issued into severall places in our counties of Buckingham and Bedford, and other counties, under the name of the Earle of Essex, or by his pretended authority , 1643, Paper, Bodleian Library, EEBO Wing/1629:8. 131 if Richard himself auth ored the d ocument in its fraudulent state, which involves Richard supplanting his desire for that of his King. Exceeding his authority with a death warrant for his brother Clarence epitomizes an act of treason to possess the document without any colorable authority. 121 For the sake of argument, it is possible that the king would yield authority to Richard in drafting a warrant for his brother Clarence. Still, the import of a death warrant for the King a duly authorized death warrant should possess. Nevertheless, Richard plays an informal advisory role to whomever reigns whether warrant are taken seriously. In t as a royal, and as figure of power and authority. Nevertheless, the significance of Richard carrying the warrant about his person should not be diminished. 122 Arguably, this warrant agains t Clarence should be considered just as much 121 presen OED ). 122 Figure 12 Death Warrant, Mary Queen of Scots, 1587, Paper, Lambeth Palace Library, MS 4769 f.1r. 132 in his efforts on the Du to Clarence to be discovered. Hence, Richard keeps close this legal instrument that op erates as the can shift to craft his own fall. Like Iago, his cloak of innocence functions to keep a public distance away from his private complots and schemes f or the demise of his brothers, Edward and Clarence. In this scene, a dilemma surfaces in its seeming removal from the prototypical vestiges of legal procedure. 123 Here, Richard hires assassins to carry out the murder of his brother who supersedes his claim i n the law of primogeniture (i.e. succession). 124 This notion of warring Titus Andronicus . Clearly, the process for obtaining a warrant requires more than is illu strated in this moment. Did Richard obtain the warrant from his brother the king, Edward IV? While it is (2.1. 87). This shock and dismay grow substantially when King Edward discloses to Queen Elizabeth, Buckingham, Dorset, Richard and the audience s imprisonment at the Tower, he did not desire the death of his brother, the Duke of Clarence. 123 In the other chapters in this dissertation, I discuss legal proc edure more than in this chapter, for Richard circumvents any identifiable process in his ambition for the British throne. 124 Titus Andronicus discussion of primog An Introduction to English Legal History , 3 rd edition (306 - 307). 133 The Request for Evidence afterthought in the drama, which unfolds around t he arrest, service, and execution of the death warrant in the matter of the Duke of Clarence. Of import, early modern criminal procedure did not allow the accused to have access to the warrant n or the charges against him until the day of court (Langbein 51 ). Though the proofs may be ill - gotten, perverted, and false, the accused would have no right to review the evidence against him. Nonetheless, early modern drama struggles with these evolving rules toward increasing juridical and cultural expectations on b ehalf of British subjects. In King John , when faced with death at the hand of his executioners, young Arthur whose death 125 In contrast, in this particular scene at 1.4 in Richard III , the Murderers neither mention the warrant specifically, nor allude to its existence indirectly. Yet, the law of evid ence is not far from this particular dialogue between the Murderers and the Duke of Clarence. Neither the scene at 1.3 nor here at 1.4 suggest s the substantive evidence against the Duke of Clarence , which would justify his death. A clear articulation of th e evidence is an early modern demand that is superimposed upon this pre - history. Indeed, the dream, a prognostication at the - 40). Is Edward just as guilty or more than Richard by using this prognostication? This ethereal, non - written proof materializes 125 At 4.2, Pembroke and King John discuss the death warrant in King John . At 1.4, Lucio mentions the warrant in Measure for Measure . 134 hesi tation with biblical law into their discussion of conscience, remorse, and damnation, the scene still exudes the sense of secular law as well. 126 Most notably, Clarence requests evi dence of his illegal acts from the se Murderers , who live their lives outside of the law . To these assassins, h e offers an impass ioned speech on the nature and the weight of the evidence against him: Are you drawn forth among a world of men To slay the inno cent? What is my offense? Where is the evidence that doth accuse me? Before I be convict by course of law, To threaten me with death is most unlawful. I charge you, as you hope to have redemption, That you depart and lay no hand on me: The deed you undertake is damnable. (1.4.170 - 181) 126 The Murderers discuss judgment at 1.1.100 - 114 and consciences at 1.1.117 - 140. 135 This speech unfolds as clear in its reci tation of the requirements to execute one accused of a crime. Clarence raises several key issues. There has been no discussion of his offense. There has been no presentation of the evidence against the duke. No lawful body has adjudicated against him befor e this theatrical audience. Richard has not explicitly stated that the king has passed a sentence of death upon the Duke of Clarence. The audience possesses no reason to believe Richard even if he submit to the death sentence that these Murderers seek to execute . After his recitation upon the requirements of law, 127 Claren ce offers a wonderful argument, both religious and legal, against his impending execution at the hands of these Murderers. This murderous scene denies Clarence both a scaffold and a courtroom to either plead guilty, contest any alleged crimes against his k ing Conspicuously, the usual remnants of the proper adju dication of the law in the gravest circumstances t he execution of an accused grow so far removed from this par ticular scene. Their absence fills not only Clarence with doubts, but also his assassins. The Execution of Judgment rthoughts. Even though Richard does not refer extensively to the warrant, he explicitly explains about how he wishes these Murderers to carry out the exec ution of the Duke of Clarence: t sudden in the executi on, / Withal obdurate - 347). 127 l law at 1.1.184 - 189, 240 - 245. 136 The execution of judgment against an accused is one of the most important functions of a law - giver. At this moment, the sovereign is not Richard. Arguably, he acts on his own, as if he has always, about the process of legitimacy whether actual or apparent. s replete with an examination of their inward and outward selves. Richard offers a description of exterior description of the assassins shifts, as Richard foreto ld, when they face the Duke of - - 349). Clarence describes these Murderers as less tha - 165). The divided hearts of these Figure 13 Execution Warrant for Charles I, 1648/9, Parchment, Parliamentary Archives HL/PO/JO/10/ 1/ 297A , British Library. 137 murderers grow symbolic when compared to the unified signatures of the royals in the death warrant of Charles I and the public response to the execution (see image s above and below ). Almost as if these Murderers embark upon their own private trial of Clarence, they compile eks the death of his brother, Clarence. They accuse Clarence for (1.4.193). In response, h Nevertheless , these o ffences evolve as suspiciously lacking for Clarence who Figure 14 Anonymous, A List of the names of those pretended judges who sat, and sentenced to death, our sovereign King Charles the First , 1649, Paper, Huntington Library and Art Gallery, EEBO Wing/964:10 . 138 counter - To t ransform into merely an exercise of justification. These assassins attempt justify their own choice to follow the authority of Richard and murderer his blood brother. This setting of the Tower shifts in mood, tone, and language as the Murderers attempt to act out the last stage of this warrant. This ower (1 Henry VI 1.4.75) transforms into the consecrated place of confessional where Murderer 2 grows plea and tries to help him as the death blow by Murderer 1 stabs Clarence to death. Attempting to withdraw from the murder plot, Murderer 2 still contrite after the death of Clarence removes himself from this act by stating - 268). In this moment, the words of Murderer 2 echo: Not kill him having a warrant but to be damned for killing him, from which no warrant can defend me. (1 .4.107 - 109) This earlier debate reaches a resolution in the slaying of the Duke of Clarence. In spite of the weakening Murderer 2, Murderer 1 grows stalwart in his resolve to complete the contract for murder ends the scene in soliloquy: the body in some hole Till that the Duke give order for his burial. And when I have my meed, I will away: For this will out, and then I must not stay. (1.4.270 - 273) 139 He seeks to remove himself if not religiously or morally from this murder then physically, he abandons the physical site of this now bloody location. The word of the death of the Duke of Clarence will not remain secret for long, and Murderer 1 intimates the gravity of his concern in any connection to the this foul deed physically over any concer n for his conscience as Murderer 2. further thoughts of conscience by Murderer 2. Conclusion Shakespeare presents a history play , which critiques the apparent authority of written the Duke of Clarence. Each of these legal instru ment s materializes as complicated in their presentation and intervention with the characters who create, reference, deliver, exchange, read, indictment unfolds King of England. So too, the warrant for the Duke of Clarence uncovers complexities, where Murderer 1 and Murderer 2 ( the assassins) request the warrant, Richard s upplies it, the assassins serve it, and Brackenbury reads it. In spite of the existence of the warrant, Clarence decries that sufficient evidence has been provided to substantiate his execution. In his compellin Because of this lack of sufficient evidence for these executions against Lord Hastings and the Duke of Clarence, a strong case emerges against Richard III for the crime of treason within the rama. To make the case, the conspicuous written evidence , 140 which he uses to fell Hastings and Clarence within the play , transform s as the key exhibits against Richard: the Scrivener s any public thoroughfare to legal ly process the execution of these state papers against Hastings and Clarence. Any apparent authority that Richard might claim reduces in its weight as even his brother the king, Edward IV, had not realized thus had not authorized the death of his brother, Clarence. The state conducts no hearing before the execution of this prince and this lord. No credible written evidence arises on which to ground these unauthorized execut ion. Where lies their treason? Actually, the case I make in this chapter develop s as strong as the case the state had against Robert, the Earl of Essex as the written evidence in his case amounts to his indictment, letters, and a few confessions. I find in structive Sir Franci which he used in the Essex trial. Bacon concluded that Essex attempted to impose the law, or his own notion of justice, upon the sovereign , and the law of treason prohibited such an imposition on the Kin g of England in his case Elizabeth I. In this case, Richard imposes his own notion of the law or justice upon the kings of England, including the crowned prince, young Edward, and his brother. Ultimately, Richard violates the laws of the sovereign state of England. Every facet of the treasonous these written pieces of evidence against Richard, we find the taint of the case foregrounding, foreshadowing and instigating the eventual end of the eighth generation of the Plantagenet line with Richard III all throu gh these written legal devices. 141 CHAPTER 3 plea / Of forfei ll, and the Law of Remedies in The Merchant of Venice Introduction The Merchant of Venice (1598), the bond emerges as the central legal instrument through which to read the play in the making and the breaking of agreements those both roma ntic and tragic. 128 physical handling and movements throughout the play and within the legal community expose the opportunity for similar legal manipulation in its execution, it s use, and its interpretation. In essence, a bond was a legal document, which contained an acknowledgement of the amount that the borrower owed the lender (Baker 368). Such bonds both legal and physical as they are created and destroyed make visible the problem of writte n evidence, both on the stage and the courts. Invested in the cultural significance of the written evidence on the stage, I track the legal and the material life of the bond in The Merchant of Venice , where Antonio promises to pay Shylock for the ducats bo rrowed so that Bassanio may marry Portia. 129 Much like the failed marital 128 In some places bonds and contracts are treated separately, but for the purposes of this chapter, I used them consensua l agreements as the word grew to include by 1600. In its modern sense, the notion of contract encompasses two ideals: the right of the performance of the obligation and the wrong in the breach of the contract (Baker 360 - 361, 368 - 371). A deed, by which A (k nown as the obligor ) binds himself, his heirs, executors, or assigns to pay a certain sum of money to B (known as the obligee ), or his heirs, etc. A may bind himself to this payment absolutely and unconditionally, in which case the deed is known as a singl e or simple bond ( simplex obligatio ) ( OED ). 129 I published a portion of this chapter in the journal Problems of Literary Genres . Poland: University of Lodz, 2013. 142 the contractual terms grow too steep, and the relationships, in terms that are financial, personal, and religious, dissolve. Overall, the contractual promises were important during this early modern era, and in an examination of the play, the surety relationship, the penalty clause, and the law of remedies (or legal remedies) offer a complex p erspective on the covenant between contracting parties legal and material object, reveals its own troublesome life history. 130 I highlight the physicality of those moments and demonstrate how the courts and the law transform into the keys to interpreting The agreement shifts from one , which at least in its intention is contractual, commercial, and a depiction of the norm al course of business to one , Like the theatre, the courts experienced their own shift toward the presentation of written evidence. While examining the material properties of exhibits on the theatrical stage, I observe that the law courts likewise emphasized their own demand for these written exhibits; one rationale may be found in the concerns for safeguarding the evidence. During this time, the courts created these safeguards through every case, which critiqued how people would treat evidence not only in the courts, but also in relation to their business practices. These rules found in cases, statutes, and the stage would now define early modern social and business practices. Despite the strides that these earl y modern courts made in the field of evidence, some a formal process was burgeoning, which would see its ultimate fruition later (Baker 582) (Macnair 130 ography, not unlike 143 15 - 21) . 131 During the medieval period, most evidence used in trial consisted of oral testimony, but the period also saw the emergence of predilection for writing (Macnair 92). The courtroom exhibits 162 - 163). 132 And, in the late sixteenth century, the courts placed both an emphasis on written evidence and an expanded nature of the trial proceeding where the summary trial (i.e. an abbreviated proceeding) was less typical (Bellamy 158 - 159). Given the development of the rules 133 Even earlier, there arose corroboration that written evidence, was alive and well as found in the Statute of Uses, which required written proofs for interests in land, in 1535 (Moffat & Bean 39). 134 Broadening the scope beyond land, the Statute of Frauds and the parol evidence rule required certain con tracts to be in writing. In particular, the Statute of Frauds required that written contracts, among other things, which could debt or obligation. After this point, common law jurisprudence became synonymous with a rigid reliance on proof in written form. 135 This project builds on the work of Luke Wilson in his examination of contract law, including his analysis of The Merchant of Venice, where he offers a risk a nalysis to evaluate the 131 See also Hemholz at 243. 132 though she does not focus upon written evidence (206 - 232). 133 The first draft of the Statute of Frauds was written by Sir Heneage Finch (later Lord Nottingham), which was 396). 134 Though the text by Bedford, Davis & Kelly (204) states that the statute was passed in 1540, I will defer to - 295). 135 Bacon defines common law a (Helgerson 76). 144 reasonableness of purchasing maritime insurance, which was considered speculative at this time titled chapter, he seems chiefly concerned with the bond as a fraudulent conveyance and the - 103). sureties , to examine marriage and the law that is, how people use these instruments to either obtain or avoid marriage (3 - 5, 84 - 115), not unlike the marital contract of Prince Charles of , which underlie justice and equity, and instead supplants her will as she exploits the law (Jordan and Cunningham 109 - The Merchant of Venice . Though each of these sch olars make interventions into the representations of the law around which the play revolves, none of these works have examined specifically what contribution written evidence, particularly the bond agreement, makes to early modern jurisprudence, where writ ten evidence reveals its place as both an identifiable safeguard and a complicated source of tension within this period and how this tension plays out on the stage, while revealing their relationship between the legal and theatrical courts. In addition, th ey do not consider the document as a complex stage property appearing in the early modern theatre. In its complexities, the contract serves a dual role, as a legal document and a material object, on the stage. Even though I utilize contract law to examine remains on the bond itself. This complicated instrument offers a way to examine contract law, the burgeoning field of evidence, legal history, and material culture. To reduce the analysis to mere revenge, debt or ma ritime insurance diminishes the broad picture, which this stage property paints 145 in Acts 1, 3, and 4. 136 Hence, the analysis of this drama through these different legal lens requires in the play to devalue the trustworthiness of written evidence, presented at a time where the early modern courts increasingly tried to emphasize the reliability of such evidence; this inquiry also demonstrates how commercial instruments intervene as vita l legal vehicles within this society. 137 As this dramatic and legal vehicle moves within the play, wavering between tragedy and comedy, the impact upon the nature of the resolution of the play develops in a complicated fashion. The Merchant of Venice begins as a drama concerned about the commercial transactions between borrowers and lenders, Christians and Jews, and royals and foreigners in early modern Venice. Where tragedy imitates noble action, comedy imitates baser men immersed in less noble activities, o bserves Aristotle in his Poetics (52 - 69). Here, arguably the activity within the play is ignoble, yet through which the fates of two friends, Antonio and Bassanio, falls. Like the fates of the foregoing characters, the moments within the play shift between merriment and tragedy. Then, a distinct shift occurs to the lavish life at Belmont where Portia and Nerissa escort potential suitors before the marital altar filled with both its legal mandates and ly in the 136 Some scholars suggest that Shakespeare dre w his polarizing character, Shylock from Roderigo Lopez, whose case that Shylock is a villain (148), I maintain that in this tragicomed y, Shylock stands apart from these avengers where 47). .Shakespeare may have written Shylock sympathetically (Risden 17) 137 Though Kahn discusses contracts in her 2004 monograph, Wayward Contracts , her focus seems much more broadly based in politics and not so much the field of evidence, particularly contr acts, and the law of remedies. Still she acknowledges the necessity of legal remedies when dealing with property (84). 146 play, Bassanio arises as the figure , which connects these two places the one concerned with the business of law and the other with the business of marriage. In both places, the individuals are concerned with bonds, legal and marital. A.G. Harmon suggests that the legal bond threatens the societal bond, and emphasizes the bond of friendship as opposed the marital bond (82 - 84). 138 Figure 15 Royal Proof of Payment, £20, to Will Kempe, Will Shakespeare, and Richard Burbage for two comedies performed before Queen Elizabeth I by Lord Chamberlain's Men at Whitehall, March 1594 , Paper, The Public Record Office in London, Wordpress . 139 unfolds as significant in this examination of genre, for it m ay be interpreted in ways both playful and pitiful. For instance, nd a plays with the dangers presented and jeopardizes, in turn, the fates of Shylock, Bassanio and Antonio from one act to the next. Hence, the play dramatizes the role of written evidence as a way of critiquing the law of contracts, and in doing so, illuminating the important function of stage properties. In its critique, the bond protects the written promises of the promisor and the promisee. The writing 138 - teleological, largely extra - properties is individu al agency and generosity (76 - 77). 139 The Facts About Shakespeare , New York: Macmillan 1921. 147 bears the proof o f these protections. Yet, through its life journey on the stage, the bond, this prop, actually is physically man - handled in its creation by the parties, stamped seal of approval, delivery, and presentation at the courts. In its physical and legal life, th e essence of the bond becomes exposed to the audience, where this supposedly legal safeguard can also subvert its intended purposes. Shrove Sunday, 10 February 1605. Alth ough the performance of this play was limited during the early modern era, the drama has continued to find its place on the stage since then. In one review 140 Yet, most of the discussion emphasizes the characters a nd actions, which surround the bond. For instance, in a New York Times 1907 article, action, which circulates around the bond, involves the characters, particularly Shylock. The focus on the bond itself beyond the enforcement of the penalty clause has been minimal. Other more recent reviews discuss the bond to determine whether the actors should read (and play in the scenes, but as a more serious matter at court when Shylock attempts to enforce the bond. 141 As the play progresses, it grows difficult to view the bond as benign, whimsical, or non - lethal . Sixteenth century discussions of the dynamics of drama remind us of the role of stage props play. In his Playes confuted in five actions (1582), anti - theatrica l critic Stephen Gosson notes the 140 John Russell Brown notes no other performance of the play is recorded until 1741 (xxxii). 141 Cleveland Jewish News 10 January 2003. "Tragic Comedy; Uneven Direction Adds Flaws to Risky Merchant of Venice." Westword Apr 08 2004. ProQuest . Web. 10 Apr. 2015 14 8 learned from such stage props. How ever, in discussions of staging and dramaturgy, generations of which strongly link the character and the stage property, as Douglas Bruster observes. As examples , he uses the handheld objects like the severed finger , which calls to mind De Flores in The Changeling and a skewered heart recalls in (Harris & Korda, 67 - 68). 142 Here in this play, I point to the written object as a stage prop in similar terms. For this yet they differ from other props in t - 71). He recognizes some handheld props operate as weapons and others represent the routine of life, like letters (75). Effectively, Bruster contemplates the material world upon which the hand prope physically . both materially and legally. This commercial contract function on several levels within this play. At once, it serves the stage visually. Even further, its appearance on the stage emerges as complicated. As I mention earlier, some theatrical productions reduce the bond as a mere appendage to Shylock. In this way, meaningful. With In essence, 142 Bruster a - - 96). 149 the bond identifies the surety relationship of Shylock, Antonio and Bassanio. This contractual relationship implicates the legal consequenc es of such a bond. The bond shifts and moves from scene to scene and hand to hand from the first act until the fourth act. As the chapter progresses, I highlight how this hand prop not only travels, but is visually, physically and legally manipulated insid Within its life on the stage, the bond, as written evidence, materializes signals what will become the treacherous nature of its journey. As Portia and Shylock later wrestle with how to read the bond, this stag negotiates a bond agreement with Bassanio where Antonio will serve as surety, how the bond complicates this three - party agreement, and why sealing the bond is significance. While contemplating the creation of the bond, I analyze what issues provide a way to break the bond and how other e arly modern bonds compare. In the second part of this chapter, I explore the moment in 3.1 and another in 3.2 when Shylock initiates a forfeiture action against Antonio when the latter cannot fulfill the bond, setting the scene by considering strategies fo r attacking and enforcing the bond at court. Though the early scenes in Act 1 and Act 3 address the negotiation of the third - party (or three - party) contract and the allegations of its breach, it is in Act 4.1 where Shylock appears at the Court of Justice. Here, the entire action of the scene hangs on the actual language of the bond to which Antonio, the shipping magnate, and Bassanio, the gentleman lover, agr ee. Yet, by the end 150 of this drama, this contractual language also enables an interrogation of its own validity as an agreement, its legality as a contract, and its transformed state as a settlement offer or criminal plea denouement. The scene unfolds as important in its examination of the bond itself and the judgment of the court. My examination of Act 4 focuses chiefly on the law of remedies and demonstrates how they emerge in diverse embodiments in the embattled argument s between Shylock and Portia and the beleaguered penalty clause. The remedies that the court offers evolve, in some ways, as incongruent with contract law. While several scholars discuss common law and equity in examining the court scene, they do not discu ss the law of remedies, the suretyship and the penalty clause as I have described. In the world of legal contracts, broken promises are not merely broken promises. On the ger than the moment when it appears at 1.3, the scene where parties, Shylock, Bassanio, and Antonio discuss some written evidence in early modern drama n ever reaches the court, in The Merchant of Venice 143 In this legal action, this document turns out as the sole exhibit at 4.1. The discussion of this contract and the nature of its brokenness at 4 .1 parallels the broken relationships in business between Shylock and Antonio, and the potential for brokenness in personal relationships between Shylock and his daughter Jessica. Dynamic in its materiality, the bond is created, handled, sealed, discussed, and examined by people who are party to the contract and extends to those who merely circulate around its defective, faulty condition. 143 Doctor Faustus A Woman Killed With Kindness . 151 Specifically, this chapter demonstrates that the written evidence here, namely the bond agreement, within The Merchant o f Venice illuminates a network of socio - personal, cultural, economic, legal and political relationships, as they are mediated by contract law, particularly at the stages of negotiation, breach, and litigation within the courts. While focusing upon written life history and examines commercial relationships. With the very words of the contract, the bond gestures toward its own taint, and exposes the malicious intent of its drafters without actual falsity within the bond itself. In the midst of the violent and comic moments, the play struggles with between differe nt people and places within the drama, I demonstrate how the bond thrives legally, materially, and socially as both a divisive and a unifying device. This indeterminacy reflects a problem the courts had with the law of remedies, and tangentially, to the na ture of global politics, and the foundational contract principles, and illustrates the conflicted way in which early modern society perceived and received contract disputes. Within the play, the scenes foreshadow, instigate, and foster the potential breach of the contract as a way of examining remedies, critiquing suretyships, and revealing penalty clauses and how they were implemented and not only distorted from their original intent, but flawed in its physically, violent and potentially deadly consequence s. FIRST SCENE : 1.3 : Bonding in Venice (Shylock 1.3.24) In Venice, bonding takes several forms from martial coupling to legal ones. Yet, Shakespeare explores a tripartite arrangement in this drama. In short, instead of two p arties to this agreement, there are three parties where one, Antonio, will serve as a surety for or guarantor of the underlying loan. For instance, in the first scene, at 1.3, Shylock negotiates a bond agreement with 152 Bassanio where Antonio will operate as surety to insure that Shylock is repaid. 144 As part of the negotiation, the agreement requires a three month deal. This agreement suggests that there exists a mutuality of promises, where a bond has indeed been formed with the presence of a valid, legal cont ract. 145 Specifically, Bassanio borrows 3,000 ducats to be repaid within the proscribed period; if Bassanio fails to pay, then Antonio, as surety, will repay Shylock. The penalty clause requires a pound of flesh. Specifically, Shylock states: he condition, let the forfeit Be nominated for an equal pound Of your fair flesh, to be cut off and taken In what part of your body pleaseth me. (1.3.144 - 147) In peculiar fashion, the penalty condition, expressly stated, demands satisfaction from Antonio. (1.3.139). of legal contracts. While enjoying the preliminary courting of the couples, we grow unable to extract ourselves from Shakespeare complicates this role as surety f 144 A surety has been defi remains primarily liable; one who makes himself liable for the default or miscarriage of another, or for the performance of some act on his part (e.g. payment of a debt, OED ). 145 consideration in A History of the Common Law of Contract: The Rise of the Action of Assumpsit (45 9 - 70). 153 role as the borrower shrinks to mere emotional despair but neither financial nor legal. It is not Bassanio whom Shylock takes to court, places in jeopardy, and blemishes his credit history. With its ties gr (2.1.134), King Henry V of England in the history play Henry V (5.2.366) t o Sonnet 134. These references cast their allusions into the legal world where the speakers describe this three - part relationship. In Sonnet 134, the language evokes how the relationship transforms into - - 3, 7 - 8). Breaking the Bond with Animus In spite of the bonding be tween these men, the mutuality of promises that Antonio and Shylock make within this agreement initiates as clearly at odds with their mutual animus, or their enmity; these men hate each other. This contradiction finds parallel in Hamlet , where the Ghost o f , which defies even brotherly bonds. As he retells the story of Brief let me be. Sleeping within my orchard, My custom always of the afternoon, Upon my secure hour thy uncle stole, With juice of cursed hebona in a vial, And in the porches of my ears did pour The leperous distilment; whose effect Holds such an enmity with blood of man 154 That swift as quicksilver it courses throu gh The natural gates and alleys of the body, And with a sudden vigour it doth posset And curd, like eager droppings into milk, The thin and wholesome blood. (1.5.59 - 70) bloody acts reveal themselves in ways, which, not surprising, also break bonds between Antonio and Shylock. All of their animus overwhelms the moment at 1.3, yet the document remains moment with heated tension. While this affect hatred is not written clearly into the bond. The penalty clause provides a hint at this conflict between the men. Similarly, the seeds of conflict complicate the legal condition of the document. In this scene, Bassanio approaches Shylock about the loan of 3,000 ducats over the course of 3 months to be repaid by Antonio upon the safe arr ival of his expected merchandise from one of his ships. Initially, Shylock conveys his skepticism about agreeing to the transaction but considers several factors the fleet that he has at sea, and the calculation of r isk. So too, The Merchant of Venice plays with probability. Apparently, the skepticism arises locales, Tripolis, Indies, Mexico, England, and elsewhere (1.3.15 - 19). In this chapter, I show how a recognizable animus, which arises in the tenor of the negotiation, shapes the ways in which the legal process surrounding the bond and its sureties unfolds in the play. This is evident when Antonio appears at 1.3.35. For example, Shylock accuses Antonio of calling him: 155 misbeliever, cut - throat dog, And spet upon my Jewish gabardine, And all for use that which is mine own. (1.3.105 - 108) e again, to spurn - 126). What value have promises made in the midst of such antagonism. In spite of this mutual animosity that is, Antonio and Shylock, they agree to be bound. With this bargaining, Antonio espouses his own principle to pr - 57). Demonstrating his disapproval, Shylock violates his own precepts by contracting with one who: hates our sacred nation, and he rails (even there where merchants most do congregate) On me, my bargains, and my well - won thrift, Which he calls interest: cursed be my tribe If I forgive him! (1.3.43 - 47) This pre - existing animus appears at odds with two who have found, in writing, a middling ground. 146 In asides filled with venom, Shylock agrees to lend the money where he will take - 146 Treasure of the Realm in Case of Mines Hamlet 144). 156 merc (1.3.132). Apparently, Antonio is confident that his ships will bring their return: This bond expires, I do ex pect return Of thrice three times the value of this bond. (1.3.153 - 155) Hence, he agrees to this contractual bond with Shylock. Asserting that he shall meet the demand within two months, Antonio exudes confidence. Why Antonio and Bassanio do not object to this clause, later in the Venetian court such questions will arise. Luke Wilson argues that the notion of probability and the evaluation of risk surface as ever in tertwined with Shakespeare, particularly in his dramas like Twelfth Night (1601), Tale (1610 - 11) and The Tempest (1611) (Jordan & Cunningham 135 - 136). 147 Wilson focuses on y put, Antonio hates hatred between the parties materialize as the most important affect, which will affect all subsequent transactions between the parties. Breaki The agreement appears simple on its face: Should Antonio fail to fulfill the terms of the repayment, then he will forfeit the agreement; thereupon, Shylock will received a pound of 147 in his Rhetorica ad Herennium . Yet, for Shapiro and Cicero, this analysis of probability is considered as it relates to suspicion, particularly in criminal matters (Kahn & Hutson 57 - 58). Here in The Merchant of Venice , Wilson discusses maritime insurance and the possibility of shipwreck. 157 A of the contract. - offer, not only will the repayment be made within three months, but the agreement includes a penalty clause. T he penalty clause requires a pound of flesh - offer is surprisingly accepted. Clearly, a contract must possess a mutuality of exchange 148 Both parties must have a reason to be bound. Eve n more complicated, the penalty for forfeiture is not financial, but this failure to repay requires a performance, where the guarantor, Antonio, must literally surrender flesh to the creditor, Shylock. In spite of the bloody clause, each party agrees to th e terms of the contract, with full further examination. These men hide nothing, not even their animus toward each other. Antonio and Bassanio cannot say that S hylock did not make the terms explicit. Calculating all of the risks of 3,000 ducats. During the negotiations, Shylock intimates that he himself shall have t o obtain a loan from Tubal in order to give Bassanio the amount, 3,000 ducats: I am debating of my present store, And by the near guess of my memory I cannot instantly raise up the gross Of full three thousand ducats: what of that? 148 assumpsit for contrac t, oral or in writing not sealed, founded upon consideration; an action to recover damages for breach or non - OED ). 158 Tubal (a wealthy Hebrew of my tribe) Will furnish me. (1.3.48 - 53) Is Shylock sincere here? This intimation may have been merely a negotiating ploy. It is never clear whether this loan from Tubal is either true or false. I believe that Shakespeare offers a play that combines the issues of the day when it came to commercial transactions between early modern citizens in a society , which was ever growing by exponential proportions where new worlds were being discovered all the time. 149 The actual exchange of money is altered in this ag reement. In this bond, the elements of quid pro quo de - emphasizes the money, where the penalty for lack of timely payment is a pound - 139). The contract includes a mutuality of promises, where each party knows the extent of the contract and its repercussions. While Antonio confidently confirms his ability to repay the debt in a timely fashion, he carelessly cr itiques the Antonio and Shylock lies in the previous forfeit ures, which Shylock has claimed from debtors who - 103). Still, there is no indication that any of those pr 149 k Institutions and European Trade: Merchant Guilds, 1000 - 1800 (2011). 159 as well as his acumen as a creditor? Antonio considers Shylock as a loan s hark or the disdain for should the other parties breach their promise in the underlying contract . The bond agreement sets out the terms of the loan, particularly the amount of the loan, the duration of the loan, and the penalties for forfeiture. Strikingly, the penalties usually do not involve some type of physical extraction of flesh. The penalties would usually involve interest, specific performance, forfeiture of property, particularly land, etc. Here, the bond extends beyond the traditional options for remedying a party in breach. Within the Tudor period, the notion of consideration had one singl vital element , without any real intention by random word s and ludicrous expressions, and from thence there would be a manifest inlet to perjury, because nothing were more easy than to turn the kindness of 150 This intention and obligation could be fou nd in this Tudor consideration, which was essential to determining the existence of a contract. , which have been committed to writing. The very words of the bond demonstrate that these mutual promises are neither random, nor unintentional. Shakespeare presents to the audience a hard - fought negotiation between businessmen who not only exchanged their promises, but went further by committing the promises to writing 150 The Comedy of Errors (Raffield and Watt, 19 - 37). 160 The Function While the written bond has the legal force in the binding and bonding of the relationship between Shylock, Bassanio and Antonio, the document also endures a sealing of the bond that is the contract as well. The agreeme nt, the bond, binds the contracting parties, but even more, the document bears legal authority, with a seal where an additional witness and an impression upon the document itself is left to bear witness to the agreement. The seal marks the importance of th e agreement. This written proof bears the authority of the legal arena to which it will later be used to show the boundary of the agreement between the parties. Shakespeare offers such a scene of proof between Shylock, Antonio and Bassanio at 1.3: This kin dness will I show, Go with me to a notary, seal me there Your single bond, and (in a merry sport) If you repay me not on such a day In such a place, such sum or sums as are Be nominated for an equal pound Of your fair flesh, to be cut off and taken In what part of your body pleaseth me. (1.3.139 - 147) process. Here, Shylock calls for the notary so that the physical d ocument as well as the physical 161 stage prop - - 151). There is danger Some sources suggest that Edward II had a practice of banning imperial notaries (Dell 386 - 397). I find the royal interference with this legal and material process striking. A painting of a sixteenth century man, and some suggest a civil law notary , by Flemish painter, Quentin Massys is de picted ( above ). 151 With this ban, was Edward II impugning the trust of these imperial notaries or the legal and material process? Actually, the physical seal to the legal instrument provided a level of guaranty, legally. While a person could not easily circu 151 The title of the painting is Portrait of a Man, but other sources have implied his profession as a civil law notary, like Eric M. Jackson at Jackson White, and other online sources. Figure 16 Flemish painter, Quentin Massys, Portrait of a Man, 1510 - 1520, Oil on Panel, Scottish National Gall eries, National Galleries of Scotland, NG 2273 . 162 134). 152 Hence, it is not surprise that Shylock insists upon the sealing of his bond. Upon such a bond, this creditor may fin While the document is drafted in the normal course of business, the addition of the seal adds another dimension to the agreement. For instance, while using this seal and the notary to 152 A deed is an instrument in writing (which for this purpose includes printing or other legible representation of words on parchment or pape r), purporting to effect some legal disposition, and sealed and delivered by the disposing party or parties. Signature to a deed is not generally required by English law, but is practically universal; and in most jurisdictions outside England where English law or legal forms prevail, signature has been substituted for or made equivalent to sealing. Delivery (q.v.) is now a moribund formality. Contracts of most kinds, as well as dispositions of property inter vivos , may be made by deed, and in common practic e are often so made ( OED ). Figure 17 Anonymous, A true discourse of all the royal passages, tryumphs and ceremonies, obserued at the contract and mariage of the high and mighty Charles, King of Great Britaine, and the most excellentes t of ladies, the Lady Henrietta Maria of Burbon, sister to the most Christian King of France, 1625, Paper, Huntington Library and Gallery, EEBO STC / 1342:16. 163 recoverable under its terms. Again, Shylock does not seek increased interest, land, o r some other traditional specific performance as penalty for the contractual breach. 153 Here, he seeks flesh. the breach in this agreement. Reading English Bonds In The Merchant of Venice , nothing happens outside of the contract, which would make returning safely with their goods in tow, Shylock does calculate the risks that the ships will not return, as i nitially proffered by Bassanio. Like a good lender, he accounts for the several ships in purchasing marine insurance, as Luke Wilson observes (Jordan & Cunningham 13 3). Nevertheless, at the end of this exchange between Shylock, Antonio, and Bassanio, a contract is indeed formed. Surmising his own risk assessment, Shylock calculates correctly and a breach occurs. As an illustration, this period does provide historical examples of bonds , which likewise possessed their own complications. The first example is Elizabethan and the second is Jacobean. differences found in the Tudor an d the Stuart houses. In this first case, the activities , which surround the bond, raise questions about its veracity. While on trial for his treasonous attempt to free Mary Queen of Scots from her incarceration in England, marry her, and invade England, 153 Williard Titus Barbour notes that specific performance created an advantageous remedy, particularly on contracts to convey land in his The History of Contract in Early English Equity , vol 4, issues 7 - 8 (116). In addition, Geor on land in Equity: An Analysis of Modern Equity Problems Designed Primarily for Students (143). 164 Th omas Howard, fourth Duke of Norfolk, offers a written bond or submission to Queen Elizabeth I: Before his delivery from the Tower he made a humble submission to the Queen, dated 23rd of June 1570 containing this solemn engagement, : - ing, signed with my own hand, and sealed with my seal, freely, voluntarily, and absolutely grant, promise, and bind myself by the bond of my allegiance to your Majesty as my sovereign lady, never to offend your highness in the same, but do utterly renounce and revoke all that which on my part anywise hath passed, with a full intention never to deal in that cause of marriage of the Queen of Scots, nor in any cause belonging to her, but as your Majesty shall command me. (Jardine 133) On its face, the bond re veals a renewed commitment by Norfolk to demonstrate his solidarity with his queen. The language of this new allegiance seeks to erase any of his past indiscretions. In spite s own sincerity - existing animus may still be read if found guilty of the treasonous allegations. For this reason alone, his bond develops as neither For example, David Jardine, in his Criminal Trials contact with the Queen of Scots he even had the bond sent to her through a secondary, John Lesley, Bishop of Rosse. (Weir 197, 205, 270, 276 - 277). Bishop of Rosse and Lord Herries were 165 154 After having been found guilty, Norfolk is beheaded (Alford 47). In my examination of the bond, I emphasize these critical junctures, like the delivery, wit the stage, this circulation and delivery of the bond in society, between people and places uncover a material and legal significance. At several critical junct be ignored. Within the alleged conspiracy between Norfolk and Mary Queen of Scots, his own culpability emerges. Unsurp risingly, Norfolk cannot extricate himself from his previous bonds with this tragic queen. Raleigh. Before departing for Guyana, Raleigh was required to sign a bond, as Bacon outlined in a pamphlet concerning the conviction in 1618. 155 release may have provided the impetus for the creation of the contract between Raleigh and King James. In this contract, Raleigh made several written promises: 1) gold mines were present in Guyana; 2) he would not engage in a hostile manner with Spain; 3) he had disclosed his true intention for this expedition with the king; and 4) he had agreed on the financial shares of the found treasure. T Westminster Hall, the case against Raleigh serves as an instructive example to investigate the legal 154 This discussion on Mary Queen of Scots is addr essed more extensively in Chapter 1. 155 - barre at Winchester. On 166 and theatrical stage. Raleigh, an explorer, merchant of the seas and kn ight, epitomized the figure, which embodied both romantic and tragic sentiments. With charges led by Bacon, Raleigh stood n to the English throne. 156 In 1603, the knight was convicted, and incarcerated for thirteen years. 157 had seen a mine of gold in Guyana. Some scholars, like Paul Sellin, suggest that Raleigh essentially lied to the king and the investors in the expedition (5 - 24). 158 However, based on these promises, ation of other explorers to substantiate the claim that gold mines existed in Guyana. Because Spain had already established a significant presence in Guyana, interferen ce. Indeed, this voyage to Guyana could result in dire consequences to the relationship between Spain and England. The Ambassador to Span, Count de Gondomar, made similar arguments (Vaughan 95 - 106). Despite these significant reasons against a second expedi tion to bring to bear for this financially and politically beleaguered crown. In spite of the precarious nature of their relationship, James I and Raleigh agree to be bound 156 As attorney genera l, Sir Francis Bacon was the successor to both Sir Edward Coke and Sir Henry Hobart, respectively. The attorney - persons affected (Baker 493, note 65). Sir Francis B acon was attorney general from 1613 - 1617. Sir Edward Coke held the office from 1594 - 1606, and Henry Hobert from 1606 - 1613. 157 His alleged co - conspirators were Sir Griffin Markham, Lord Cobham, and Lord Grey (Vaughan 14 - 26). 158 sexual defamation cases, like bastardy, whoredom, cuckoldry, pimping, and adultery (Kahn & Hutson 126 - 142). The 167 In addition, this bond, called the Articles of the Commission, gave Raleigh the authority that he needed to act as governor and commander on this expedition. However, the articles included a penalty clause, which required R engaging with the Spanish while on this expedition. Although Raleigh, this imprisoned explorer, realized that the violation of this written oath to King James would have a significant impact on his current co nfinement, the knight, like Antonio in The Merchant of Venice , signed the document, and embarked upon this expedition for golden treasure. Unfortunately, during the voyage, a group ed in the skirmish. Raleigh of feigning sickness to secure an escape. He further charged that Raleigh broke the contractual agreement by engaging in battle with Sp anish citizens (Vaughan 95 - 106). Even further, Bacon asserted that the explorer used traitorous words against King James to plot a way to avoid keeping his word to the king, and simultaneously persuade the king to send Raleigh for another expedition. At hi arraignment and conviction, Bacon acknowledges the many pamphlets, poems, and letters, which surrounded this iconic figure who at this time was arguably both so popular and so hated by his people (Sellin 137, 257 - 258, 284, 287) (Edwards 523). 159 To satisfy the Spanish, Raleigh this romantic and tragic figure was executed. 159 In this trial, the chief justice is Popham (Vaughan 100, note). 168 SECOND SCENE: 3.1: Let us to Court bond (Shylock 4.1.202 - 203) Here in the second scene of argument, Shylock the lender initiates a forfeiture action against Antonio the surety when Antonio cannot fulfill the bond. Yet, Shylock continues to - 13). It is evident here that beyond the m aking of the bond agreement with its exchange of mutual promises, the actual breaking of the bond, and subsequent action, I make three observations ab out legal life and impact of the written contract agreement. First, the scene exemplifies the moment when breach is alleged to have occurred. Second, the scene illustrates the impact that the breach and the impending forfeiture action have on the contract. Third, the scene offers a response to the potential litigation upon a known but unconscionable term within this bond agreement. Interestingly, the play offers no reading of the bond here in Act 3, particularly scenes 1 and 3. 160 At 3.1, this scene focuses on the process of forfeiture, which Shylock wishes to begin been wrecked at Goodwins so his debt remains outstanding to Shylock. This scene already begins to di flesh. Despite the restitutive remedy found in forfeiture, an extreme retaliatory violence infuses the legal action. Yet, my discussion combines analysis from forfeiture, equity, and evidence to 160 Titus Andronicus Volpone there are readings of 169 Within the play, Salerio, friend to An tonio and Bassanio, raises a good question to Shylock: -- - 46). 161 The entir e speech between lines 47 - 66 lists his animus against Antonio. In two key lines, Shylock - 66). Shylock intimates that it is Antonio who has ta ught him villainy, and now apparently this lender will not apply this knowledge. He blames Antonio for the ills, which he has , scorned my nation, thwarted my bargains, cooled my friends, heated mine enemies, -- - 52) for his losses of millio ns, his shame, his affront, and his earlier, habitual degradation by Antonio. As one who is unsaddled with vengeance, Salerno does not expect that Shylock will enforce his bloody penalty against Antonio. Here Shylock inculpates the law as corrupted, like his penalty clause. While examining the same lines, I note that Shylock also peppers his response with juridical language and implications: 161 Charney compares Shylock to Richard III, Aaron and Iago and determines that his role is much smaller than the aforementioned villains; yet he acknowledges that there exists an ambiguity to this character (43, 49). 170 (3.1.65 - 66). Ha ving found Antonio guilty of the enumerated offenses, Shylock shall now to the extreme. schoolmaster taught in Persia , which taught his scholars to li e, and not to lie; to deceive and not to deceive; with a distinction to how they might do it to their friends, and how to their enemies; to deception t eaches him how to deal in earnest with Antonio. This socially and emotionally wounded Antonio and Shylock make their promises, but Shylock lies in his preference negotiating this bond, Shylock sp eaks of frie ndship to Antonio: I would be friends with you, and have your love, Forget the shames t Supply your present wants. (1.3.134 - 136) Yet, Shylock and Antonio are enemies (1.3.130). Hence, the penalty clause now operates as Anto 171 In many ways, forfeiture provides a way to enforce a contract with its own system of penalties. In particular, bringing an action of forfeiture to claim that which is owed emerges as an act of self - help remedy unless the law is excessive (Se aton & Friedman 415). 162 In essence, when Bassanio and Antonio fail to pay, Shylock takes the matter to court as a self - help remedy. In order to enforce the bond, Shylock must present proof of the bond agreement to the court. Unlike the Pauncefoot Case, Anto nio does not attempt to forego his penalty. Later in court, he At 3.2, in order for Shylock to enforce his contract, he must have proof tha t Antonio has his ships: Sweet Bassanio, my ships have all miscarried, My creditors grow cruel, my estate is very low, my bond to The Jew is forfeit, and (si nce in paying it, it is impos - 162 feited to the King (1594) and (Ross 106). If the one who forfeits the contract s tatute, 13 Eliz. c 5, noted in phrase included in the enactment and its penal clause becomes quite relevant to this discussion where the commercial statute for commercial inter ests has penal provisions. Ross suggests that as the crown made most of its revenue from the surrender of property by those convicted of treason and the like, the provision becomes quite telling (29 - 30). The defrauding of a creditor could mean that one wou lands for up to a year (114). In addition, even ecclesiastical courts took to using the forfeiture action (Ross 67). Bailey notes that forfeiture functioned more as a kind of restitution (30). See also A Selecti on of Leading Cases on Various Branches of the Law by John William Smith, Richard Henn Collins, and Robert George Arguthnot. C H Edson & Company, 1888. 172 If I might but see you at my death: notwithstanding, use Your pleasure, -- if your love do not persuade you to come, Let not my letter. (3.2.314 - 320) Here again, we have another stage property, which refers to this bond, the strength of its Portia and the audience in Act 3; yet, in Act 1 where the negotiation of the bond agreement begins, no such reading occur. Now, Shylock may demand his penalty Unfortunately for Shylock, this letter also serves as an opportunit y to also tell Portia of the loan from Shylock and his true financial state. Bassanio learns of the loss and tells Portia of the loan, thereby giving her an opportunity to offer sufficient funds to buy Antonio out of his debt. Hence, the letter thrusts Por tia into action. OED ). This no tion of defacing the material object that is the bond is physically violent, materially destructive, and dramatically evocative. This momentary allusion to a physical act has physical, financial, and legal implications for the bond itself. The physical des truction of the bond would perhaps involve an illegal act. Its legal destruction would demand an appearance at court. It would also involve a dramatic act representing a potentially serious Portia responds, as if unimpressed by the sum: 173 What no more? Pay him six thousand, and deface the bond: Double six thousand, and then treble that, Before a friend of this description - 301) In the most persuasive manner, Portia asks Bassanio to settle this matter of money for whatever amount the contract demands. While develo ping a stratagem for destruction of this bond, she the marital bond. If she and Bassanio marry, Portia promises Bassanio their own quid pro quo , for - 306). Ultimately, they do marry before leaving for Venice to aid Antonio, for Portia crafts, like Shylock, a counter - attack, Striking Illegal Te rms from the Contract While we may think that after fixing its seal, the bond may be accepted as legal actually, faulty penalty clause. To prevent the voiding o f the contract, the law provided for the striking the offending clause from the document. Essentially, the contract must be weighed as to its legality. A determination must be made as to the reasonableness of the forfeiture action and the penalty clause, w hich gives permission to attack the body as payment in the bond. This view might invalidate the contract, where this bond might be interpreted as an act of vengeance against 174 Antonio for past, present, and future wrongs. In this way, this illegal term destr oys the whole During the sixteenth and seventeenth century, legal jurists, like Sir Edward Coke, stated: void But herein the law distinguisheth between a condition against law for doing of any act which is malum in se , and a condition (that concerneth not anything that is malum in se ) and therefore is against some maxime or rule of law. (Simpson 110) 163 considering the statements of mutual animus between Shylock and Antonio during their contract negotiations. Even further, an other argument might suggest that the contract be severed. Hence, the offending term might be replaced with a more reasonable one in this circumstance. During the ty; the ethics of the borrower should not necessarily emerge as the deciding factor in determining a seems unconscionable. Yet, Antonio agrees. His friendship with Bassanio encourages him to 163 OED ). 175 need is dire, for marriage was one of the most important life decisions that one could make. At the outset of this chapter, I used marital contract negotiations between James I and Phillip III, as an example. In particular, the importance of a good match between a man and a woman with a dowry was a chief concern. For instance, the dowry of Princess Katharine of Aragon was so im portant that Henry VII of England married Katharine to his younger son Prince Henry when his elder son Prince Arthur died. Hence, the nature of the bond, or promise, particularly in writing, was given great weight in the matter of contracts, even those for marriage. In addition, English law provided for the severance of problematic contractual terms (Simpson 111 - option during the early modern era. In his report on Henry Pig (1611), Coke suggests: It is unanimously agreed in 14 H.8. 25, 26 that if the covenants in an indenture, or the conditions endorsed upon a bond, are against law, the covenants or conditions which are against law are void ab initio , and the other s stand good. (Simpson 111) This legal rule allowed for the contract to stand in spite of an unlawful term. In essence, the contract would not be considered unlawful. The court would void the unlawful portion of the contract that is, the court would elimin law; the court could acknowledge the unlawful portion of the contract, but save the remaind er of 176 upon his right to the bon d. Relentless in his determination, Shylock refuses to relinquish this right, that which may be found in the Venetian court s. This moment intermingles the law, evidence, mercy, equity, and justice. 164 Within the tripartite analysis in this and the judgment by the Duke in the Court of Justice in Act 4. Actually, this scene grapples with the law, its violations, and its enforcement in relation to the bond, the surety, and the penalty clause. Specifically, Antonio believes that Shylock insists upon his penalty for vindictive reasons. While Shylock pursues his remedies for the losses and the Hence, Antonio believes that no relief may be granted in law where: With us in Venice, if it be denied, Will much impeach the justice of the state, Since that the trade and profit of the city Consisteth of all nations. (3.3.28 - 31) Here, Antonio expounds upon the utility of using the law in commercial matters for Venice, which is a global port where nations from all over the world profit. Should Venice depart from the law in 164 Later, in Act 4, the characters expound u pon them further. 177 sense of helplessness reads almost like the desperate victim who turns into an avenger in a revenge tragedy. In the following analysis, I consider how the court, in its deliberation over this matter at 4.1, stresses that the principles of justice, equity, and mercy function at the forefront of its judgment, and whether this judgmen t is consistent with the remedies available at contract law. The attempt by Shylock to access the courts by initiating his forfeiture action seems palpable. Yet, what turns problematic is presenting before the court the actual language of the bond and tryi ng to seek a realistic remedy , which upholds the principles and tenets of contract law. Notably, the use of forfeiture as felony crime seeps into this case of contract breach here in The Merchant of Venice . 165 This vacillation between civil and criminal law that this case of Shylock versus Antonio presents creates a divergent way of reading not only the play, but the law. THIRD SCENE : 4.1: This Strict Court of Venice: The Law of Remedies 166 bond (Portia 4.1.177) Court of Justice at 4.1 evolves into a confluence of several legal approaches representing the various ways in which early modern society viewed contract law, and requires an examination of th e law of remedies. As a matter of course, if a litigant is wronged, the injured party may decide upon the type of remedy that he desires. Among many Shakespearean dramas from the First Soldier at 4.3 in to the First Senator at 3.2 in Coriolanus 165 Notably, the concept of forfeiture serves as a potential redress in criminal cases, including homicide (Baker 580 - 581, 585, 600 - 601). 166 178 Arthur, Duke of Brittany at 4.1 in King John The Merchant of Venice , this strict cour 167 quitable; hence, the moments , 168 Within the setting of this trial, an analysis of the bond lends itself to a review, which focuses upon the legal remedies available to this b ond agreement. In the framework of early modern law, for breach of contract cases are quite flexible. 169 One such example of a lawful remedy in the midst of br each is specific performance. The remedy of specific performance compels a party to act in a way to complete the contract, whereas injunctions enjoin a party from acting in a manner inconsistent with the contract. 170 with Portia at Belmont suggests the re fusal of specific performance: If he should offer to choos e, and choose the right cas - 167 The Merchant of Venice Arden editor, John Russell Brown, notes that Shakespeare imagines roles and locales, which may have been a fictional portrayal of sixteenth century Venice, for Elze in Shakespeare Jahrbuch , xiv (1879) 168 Posner argues that the contract is not illegal, where he distinguishes between the contract and its penalty e original contract (149). 169 See Lawson 46 - 47. 170 Coke, an advocate of common law courts and hostile toward other jurisdictions, denied jurisdiction of a court of equity to grant specific performance of contracts, on the ground that the breaching party had the right to pay damages if he chose (Baker 140). 179 ket, you should refuse to perform your father's will, if you should refuse to accept him. (1.2.88 - 90). While the dialogue grap the bond has its ramifications as well. As a different remedy, the court might award either monetary damages or land. These legal or her reliance upon the br (or unfairness). 171 As there are remedies , which address unfairness, some legal approaches address fairness or equity. These foundational concepts in the law of remedies incorporate the pr inciples of mercy and justice, which develop particularly in this scene. Within this legal arena, the entire these principles. In particular, this play lends itself to the principles of equity (i.e. fairness), where Shylock The scene evolves as important in its examin ation of the bond itself here at 4.1.221, quoting its language, and the judgment of the court. The remedies, which this Venetian court offers turn somehow incongruent with early modern contract law, yet the courts of equity allowed a wide 171 Beatson and Friedman 13 - 15, 429 - 437, 474 - 475, 482. 180 berth for breach of contract cases. Even in King Lear the principles of equity: [To Edgar] Thou robed man of justice, take thy place. [To the Fool] And thou, his yokefellow o f equity Sit you too. (3.6.35 - 39) The demand for visible , tangible evidence in this trial unfold as tantamount. Even in these brief lines and this make - believe court, the ideals for weighing and app lying notions of equity to achieve , emerges as recognizable and meaningful for the audience through their own attendance of court and their reading of pamphlets like the Raleigh and Lopez cases. In The Merchant of Venice , Shakespeare offers a scene, which effectively intertwines the issue of contract law, breach, and remedies where these remedies reveal themselves as quite mal leable, for 172 uphold the contract or punish its author, Shylock. These of relief is confirmed as Act 4 opens where the Duke, the law - giver/judge, protectively pronounces 172 The Duke of Venice is the Doge, or the chief magistrate of Venice (sometimes Genoa). Thomas Madden begins his Introduction with an 1192 quotation from 181 his stance for the life of young Antonio, as the court, having recognized the parties, begins its One of the remedies , which would have been available to these men of written promises and commercial transactions is restitution. Th e principle affords the parties to the place where they began. As Titus Lartius notes in Coriolanus fortunes / To hopeless - 16). This options grows out of the concept of equity as well. T If the law of Venice ignores a clear contract, then the city implicates all commercial transactions, including bonds, within its boundaries. The drama exposes the tro ubles with the lack of, and need acceptable remedy. 173 This strict court of Venice offers Shylock an avenue for redress for his commercial concerns and his own rage against Antonio who will now be rightfully judged, in 174 Now, these legal figures and leaders of Venice must decide, and watch, this contentious case. 173 Court Patronage and Corruption in Early Stuart England (2003) where she discusses the corruption, avarice, and manipulation during the early modern period on page 148 in her book The Professions in Early Modern England, 1400 - 1800: Servants of the Commonweal (2014). 174 The litigants in the Court of Common Pleas had a higher burden; they were required to show proof of a modeling incontrovertible. At time s, this Court heard non - criminal matters, like contracts, where physical jeopardy was not liberty might be taken. In the law, these matters n in existence since the time of Henry I Eventually, the jurisdiction included criminal and non - criminal matters and because of the legal work with new (Selden Society 229 - 182 As discussed in the fi rst part of this chapter, this bond agreement turns into a useful tool performance of this play even from 1875 focuses on how the actor played the role of Shylock whe 175 The letter of the bond grows revealing. Earlier at 2.3, Launcelot Gobbo t he Clown says: xamination. Like the tears , which secrets both legal and material. Here at 4.1, Shakespeare provides such a moment. While in Act 1 and Act 3, the audience witnesse s such scenes, where the parties created, examines the bond at line 221 grows even more compelling. In this moment where a hyper - attention is applied to the bo 176 In this instant, neither Shakespeare nor editors provide any stage direction. This line simple in its words actually convey a powerful theatrical and historical moment. Dressed in the role as lawyer, according to stage direction at 4.2.162, Portia examines the legal document , which is the center of cases (Baker 107). Here, the referenc sovereign. 175 The New York Times 4 May 1875. See also The New York Times 31 December 1887. 176 Portia enters the court at 4.1.164 dressed as Balthazar the doctor of laws, according to the stage directions. 183 - 168). Here at line 221, the h her thoughtful, circumspect deliberation. Consistent with early modern law, Portia focuses upon the language within the four corners moment where Portia i nitially discusses the bond with Antonio striking. In its brevity, the moment 4.1.150 and the permission to engage in this legal matter at 4.1.166. Then, Portia addresses the court, where recitation about how the bond should be derided , Antonio the accused merchant of Venice simply not object to its validity. He surrenders to the bond and its implications. As Antonio initially ignored the import of the bond, Portia also appears to gloss over the significance of the mutual agreement of the parties, which finds consent in those two words by Anto these two words, which echo the earlier more romantic and marital moments between her and Bassanio. This legal instrument travels from Shylock and Antonio in Act 1 and later to the notary for sealing to Shylock and Portia in Act 4. The documen t circulates on the stage and within this Venetian locale. 177 In an attempt to resolve this matter at court, the bond passes from Shylock to Portia. After its travels since Act 1, the bond now rests under her inspection here at 4.1. In this moment, not only does this stage property shift in space and to yet another person, but now this 177 - 107). 184 legal instrument grows anew in its usefulness for Antonio. Here, Portia argues that the court should murder within the alien statute: For it appears by manifest proceeding, That indirectly, and directly too, Thou hast contrived against the very life Of the defendant. (4.1.353 - 357) Within her well - crafted argum ent, Portia urges that Shylock has intentionally sought the life of instead of a tool to conduct commercial relations, this contract evolves as an instrument of death. Not without his own legal prowess and cunningly persuasive acumen, Shylock looks to his Shyl ock and Portia, Shylock pursues relief in the words of contract: Portia: For the intent and purpose of the law Hath full relation to the penalty, How much more elder art thou than thy looks! Portia: Ther efore lay bare your bosom. 185 Shylock: Ay, his breast, So says the bond, doth it not noble judge? (4.1.243 - 250) With unrelenting zeal, Shylock attempts to hold Antonio to the letter of the contract wo own quest to find release As this learned doctor of laws, Portia as Balthazar develops a clever strategy. After she find s Shylock unwilling to accept mercy to release Antonio, Portia changes legal tactics. Portia Portia: Why this bond is forfeit, And lawfully by this the Jew may claim A pound of flesh, to be by him cut off Take the thrice thy money, bid me tear the bond. Shylock: When it is paid, according to the tenour. It doth appear you are a worthy judge, 186 You know the law, your exposition Hath been most sound: I charge you by the law, Whereof you are a well - deserving pillar, Proceed to judgment: by my soul I swear, There is no power in the tongue of man To alter me, -- I stay here on my bond. (4.1.226 - 238). Here in the midst of the forfeiture proceeding, Portia se eks to negotiate Shylock away from the language of the contract. This language is filled with mutuality of promises , and confirms While examining notions of equity, the written evidence of this trial confronts how legal jurisprudence in local jurisdictions impacted global politics. The language of the bond penalty on its face does not p romote the principles that underlie equity, like fairness and equity, which the 178 As this court sought to apply these principles, it is difficult not to see the influence t skirmish with the Spanish had upon his fate. Examining the Arguments: Shylock versus Portia The most striking part of this scene in The Merchant of Venice is the remedy that the court reaches at the conclusion of the case. Shylock co mpetes with Portia to dominate the manner in 178 187 , which sits at the importance. Though not surprising in early modern courts of equity, the threatened with the death penalty and imprisonment. He also must surrender the value of his estate. His forfeiture action turns into a non - starter after Portia introduces the alien statute. These arguments between Shylock and Portia parallel the Raleigh ca se. The many allegations against Sir Walter Raleigh offer a conflicted view of the knight where the charges shift from the secret a signed proclamation with his sovereign, which impact the breadth of the possible judgment knight. In an interesting contrast, Portia participates in a less serious game than Burghley and Essex 179 This v permission, to remove the discussion of this forfeiture action from that of the language of recovery of property and restitution, and shifts the discussion to the efforts at recovery as an attempted criminal act against the life of a Venetian (4.1.356 - 357). Likewise, this verbal and legal quibble 179 The Arden editor for The Merchant of Venice , John Russell Brown, notes that some criticism has been discussed - 306 188 At 4.1, Shakespeare sets this scene in a way that emerges unlike any other scene that the p laywright presents in this drama. The stage directions provide our location in a Venetian Court of Justice. In this early modern courtroom, each of the litigants, judges, and witnesses usher in this Magnificoes, Antonio, Bassanio, and Gratiano, Salerio, and others. Immediately, the Duke calls the court to order by seeking the named setting, Antonio What follows reveals a striking dialogue between the Duke, the defendant Antonio, the witness Bassanio, the witness Gratiano and later Shylock, the plaintiff. This scene evolves as conspicuous whe assessment of the legal remedies against Shylock the lender, as they dissect the character of d uncooperative stance to any type of negotiation with these judges and litigants who have adjudged his character and his sentence at the opening of this scene. Where audience may perceive the role of the law - giver (i.e. judge) as objective, here we have t he Duke who illustrates his one - sidedness -- thou art come to answer / A stony adversary, an inhuman wretch, / Uncapable of pity, void, and empty / From any dram of - 6). The Duke shares his reading of Shylock before the lender is introduced, before instigation, the Duke apologizes to Antonio. He demonstrates that his sympathies res t with this human. Here, this judge divulges his own predisposition toward Antonio. Not only has he unveiled his own poor estimation of Shylock, the Duke has also before hearing the arguments, reading the 189 bond, and objectively appraising the case this remedy arises be readily embraced, th is supposed civil court avoids discussing the typical legal remedies, as specific performance and restitution, discussed earlier. As the audience, do we now witness unethical discourse between the judge and the litigant where both parties are not present? Without the presence of Shylock, the Duke offers this I have heard ns to qualify His rigorous course; but since he stands obdurate, And that no lawful means can carry me To suffer with a quietness of spirit, The very tyranny and rage of his. (4.1.6 - 13) So too, it appears that the judge has discussed the case with Shylock out of the presence of Antonio. apparent refusal, the Duke and Antonio depict the lender as stubborn, immovable unwilling to he remains stalwartly outside of the circle of Antonio and the 190 Venetian aristoc mercy as the remedy here. Shylock that the appropriate remedy for this case is indeed mercy. When Shylock enters the court, the Duke encourages the aggrie ved lender to surrender his malice to the higher more agreeable act of mercy: Shylock the world thinks, and I think so too, That thou but leadest this fashion of thy malice se more strange Than is thy strange apparent cruelty; And where thou now exacts the penalty, Though wilt not only loose the forfeiture, Forgive a moiety of th e principal, Glancing an eye of pity on his losses That have of late so huddled on his back, 191 Enow to press a royal merchant down, And pluck commiseration of his state From brassy bosoms and rough hearts of flint, From stubborn Turks, and Tartars neve To offices of tender courtesy: We all expect a gentle answer Jew! (4.1.16 - 34) Essentially, the Duke believes that Shylock has entertained this Venetian society and the world at greater for the lender if he relents, as the public believes, and releases Antonio from this penalty. ic show, the Duke suggests that Shylock go even further by releasing ock to best legal remedy for this civil matter. for this lender, does not flow from the language of his bond. Implying that he has already told the Duke of what he seeks, Sh ylock insists: And by our holy Sabbath have I sworn 192 To have the due an forfeit of my bond, -- If you deny it, let the danger light - 39) Shylock does not w ant the mercy by which the Duke entreats him. This plaintiff - lender wants the brought to Venice to decry justice in this fair city. Even further, Shylock refuses to answer why he insists upon this penalty of a pound of flesh: A weight of carrion flesh, than to receive But say it is my humour, -- - 43) Shylock believes that the answer to this question grows irrelevant. In his opinion, it does not matter why he wants the flesh. What does matter is the language of the bond. The remedy that he seeks So can I give no reason, nor I will not, I bear Antonio, that I follow thus A losing suit against him! are you answered? (4.1.59 - 62) 193 ntonio, Shylock decries that he will have the lack of law applied in this case: The pound of flesh which I demand of him If you deny me, fie upon your law! There is no force in the decrees of Venice: I s tand for judgment, -- answer, shall I have it? (4.1.99 - 103) of his contracted bond agreement. He demands that the Duke apply Venetian law, which Shylock assumes w ill grant him the remedy he seeks The Duke, Antonio, and Shylock appear to be at an impasse. No one has changed his position with respect to the appropriate remedy , which should be applied to this civil matter. At a loss, the Du ke says: Upon my power I may dismiss this court, Unless Bellario (a learned doctor, Whom I have sent for to determine this) Come here to - day. (4.1.104 - 107) Instead of ruling against Antonio and giving Shylock his bond, the Duke would rather dismiss th e case. Perhaps for political or ethical reasons, the Duke seeks an expert to determine this difficult 194 case. At this court, a stalemate exists where Shylock rejects mercy and insists upon his bond and, Antonio resolves that no other recourse is available t o him says: I am a tainted wether of the flock, Meetest for death, -- the weakest kind of fruit Drops earliest to the ground, and so let me; Than to live still and write mine epitaph. (4.1.114 - 118) As a result of one in a flock , which falls the earliest because of its weakness. Bassanio, standing as witness, shall As a replacement for Bellario, the doct or of law, Portia enters as Balthazar and argues this case of Shylock the lender versus Antonio the surety . In her assessment of this case, she takes up where the Duke leaves. Portia argues for mercy as the appropriate remedy in this forfeiture case: The q 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, The throned monarch better than his crow n. 195 His scepter 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 sceptered sway, It is enthroned in the hearts of kings, It is an attribute to God himself; And 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 a ll to render The deeds of mercy. I have spoke thus much To mitigate the justice of thy plea, Which if thou follow, this strict court of Venice - 202) Not unlike the Duke, Portia argues for me 196 (4.1.34) earlier in the scene. With mercy, Portia argues that both the borrower and the lender prosper in this blest exchange. She insists that mercy arises as the best remedy for it grows , demands. Justice, unlike mercy, does not operate as a conduit to salvation. In mercy, we perform merciful deeds like Shylock foregoing a sentence against Antonio. In essence, mercy unfolds as the best remedy, for this concept materializes as the godly resolution. - 204). This lender will worry about his own deeds. He will decide upon the consequences of his own actions. He does not seek this legal remedy , which is not grounded in contract law. Shylock wants the penalty and the forfeit of his bond. He wants this Venetian Court of Justice to enforce the language of th e bond. This result, for Shylock, embodies the definition of justice. After all of the failed arguments about mercy, Portia decides to look to the bond. Upon her Why this bond is forfeit, And lawfully by this the Je w may claim A bound of flesh, to be by him cut off Take thrice thy money, bid me tear the bond. (4.1. 226 - 230) n is couched in a counter - offer where she ask Shylock to take 9,000 ducats to resolve this matter. At 197 remedy of restitution and damages. Here, with the of fer of three times the amount of the contract, she offers Antonio a way out of the contract by giving Shylock the amount owed, and any inconvenience that he incurred in taking Antonio to court. Shylock also saves face in this community as a shrewd business man who receives more than what is owed. In this way, Portia borrower. These financial lending practices (i.e. receiving more than borrowed) are the very lending habits, which Antonio criticizes Shylock in Act 1. This remedy rests at the seat of Antonio Antonio and Shylock. In this settlement agreement, each p arty will forego the original bond and agree to walk away under these new terms. However, Shylock does not desire this alternative remedy to the original bond: I charge you by the law, Whereof you are a well - deserving pillar, Proceed to judgment: by my soul I swear, There is no power in the tongue of man To alter me, - I stay here on my bond. (4.1.234 - 238) He wants a judgment on the actual contract. He rejects this settlement offer, which Portia crafts before this Venetian court. Shylock insists that Po rtia in spite of her persuasive arguments will not deter him from his bond. He stands firm on this principle. 198 Utilizing all of her resources, Portia crafts yet another alternative to remove Antonio from netian criminal statute: Tarry a little, there is something else, -- This bond doth give thee here no jot of blood, Take then thy bond, take thou thy pound of flesh, But in the cutting it, if thou doest shed One drop of Christian blood, thy lands and goods Are (by the laws of Venice) confiscate Unto the state of Venice. (4.1.301 - 308) to prove that this lender has attempted to violate Venetian laws. She uses what is not present in the bond His bond emerges as the very proof of his criminal acts, which exposes his property to confisc ation by both the state and Antonio, now the victim. Portia warns Shylock: Therefore prepare thee to cut off the flesh, -- Shed thou no blood, nor cut thou less no more Or less than a just pound, be it but so much 199 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. (4.1.320 - 328) Now, Shylock transfor ms into the perpetrator of a crime instead of the plaintiff in a forfeiture case. He is now the accused instead of the aggrieved. He is now a criminal instead of an injured businessman. Instead of merely characterized as malicious and cruel, Shylock is now dangerous, for he seeks the life of a royal Venetian, Antonio. The new remedy , which Portia seeks becomes and possibly his life. she satiates h The law hath yet another hold on you. It is enacted in the laws of Venice, If it be proved against an alien, That by direct, or indirect attempts He seek the life of any citizen, e, Shall seize one half his goods, the other half 200 Comes to the privy coffer of the state, - 352) Portia now binds Shylock to this Venetian Alien Statute. The s tatute prohibits an alien who intentionally or unintentionally threatens the life of a Venetian citizen. The statute contains two allows the victim to seize o face of these laws , which cut against his very means and life, Shylock now want s to accept the - 315). Yet, - 317). - 335). (4.1.342). Nevertheless, Portia pursues the alien statute, which posits Shylock as an not Antonio lies in jeopardy. He now must surrender Here, the bond agreement reads as an instrument strictly possessed of illegality where one returned to the financial position in which he initially began, nor offered penalties in interest after incessantly bombastic arguments seek neither to invite nor to convince, even if he has the law on 201 his side. 180 line 202. This aggrieved litigant seeks redress from the court that yields a more finite application of the letter of the law. Indeed, Shylock embodies a figure who believes that the written evidence his bond wins the d ay for him at court. this matter is no longer a civil one, but evolves into a criminal matter. 181 Still, if the matter is wholly criminal, no discussion should exist about the underlying forfeiture action and the bond agreement. I argue that the language of the bond should control as this instrument defined the relationship. At the outset of the case, Antonio confesses the bond. Yet, quite strikingly, the court allows Portia to offer an alternative interpretation of the contract. If the court had to rescind an performance, or restitution was appropriate, then the bond a greement should not be dismissed. sense of a contract however expressed; a villain will look for a way out of a contract no matter Arguably both parties, Shylock and Portia, have less than honorable motives. 182 supersede compelling Shylock to find mercy for 180 I 181 Also noting the lega 182 Posner argues that bad motives do not nullify the contract, particularly where Shylock had no intention t o murder Antonio (150). 202 unable to resolve the case as initially proffered to Shylock, so she prepares to win at all costs, even if the approach imprisons, bankrupts, and converts Shylock. 183 T encapsulate a larger concern within early modern England itself. The sce ne is rich in its discussion toward him as the city of Venice participates in the cruel practice of slavery itself turns quite vivid and difficult to deny Judeo - Christian principles at 4.1.180. 184 It grows difficult to determine who offers the mor e argument is consistent with the popular thinking of this particular time. Hence, it is likely that the early modern audience would have rejected the argumen t by Shylock, this antagonistic foreigner intentions. P Antonio (Jordan and Cunningham 114 - rategy exceeds the 183 These arguments carry with them serious implications for Shylock and the global marketplace in the fictional century, slavery was the fate of the insolvent in the Roman and Germanic tradition (Bailey 153). Hence, the law had s organic, nontransferable property it made that which should not be alienable surpassed the civil bondage found in prison. 184 surprising moment, Queen Victoria offers the actress, Ellen Terry, a cue as she begins the speech in an 1889 n The New York Times , 17 June 1889. 203 persists in her effort to free Antonio from the entire contract. incarceration and property divestment appear this law will not protect the creditor, the question rai ses important ethical and legal implications for the Should not the quality of mercy, which Portia earlier asks Shylock to recognize extend beyond the mere sav troublesome bond. Rendering the Appropriate Judgment hese proceedings with criminal penalties. 185 predicament, the Duke determines that his entire estate shall suffice: I pardon thee thy life before thou ask it: The other half comes to the general state, Which humbleness may drive unto a fine. (4.1.364 - 368) 185 The Oxford English Dictionary sense. 204 life act ually exists: Nay, take my life and all, pardon not that, -- You take my house, when you do take the prop That doth sustain my house: you take my life When you do take the means whereby I live. (4.1.370 - 373) In essence, at the outset of this scene, thi s court asked Shylock to use mercy, as the remedy, to relieve Antonio of his bond forfeiture. However, now the court decides that the mercy here , which shall be extended to Shylock will be giving him his life but taking his estate. Shylock objects to this proffered remedy. merchant addresses the court: So please my lord the duke, and all the court, To quit the fine for one half of his goods, I am content: so he will let me h ave The other half in use, to render it Upon his death unto the gentleman That lately stole his daughter. Two things provided more, that for this favour 205 He presently become a Christian: The other, that he do record a gift (Here in the court) of all Unto his son Lorenzo and his daughter. (4.1.376 - 387) Now, instead of removing his entire estate now, Antonio refuses the one half , which the court would give him. This new remedy requires that Shylock give half of his estate to the stat e of Venice As its final judgment, this Venetian Court of Justice accepts Antoni - 388). To Beleaguered by the tu rn of events, Shylock resigns: I pray you gi ve me leave to go from hence, I am not w ell, -- sen d the deed after me, An d I will sign it. (4.1.391 - 393) ture, the final judgment against Shylock in his losing battle against Antonio. 206 One could argue that James I displayed incredible mercy toward Raleigh by forgivin g him to his king with all forgiven. Yet, again the consideration of geopolitics, the financial state of his English realm, and the notions of equity might also function more prominently in this moment. this contract dispute. The principles of equity demonstrate themselves in even more diverse manifestations whe n examining the most incomprehensible part of the judgment, which comes from Antonio who insists that Shylock convert from his Jewish faith. This move implicates the case is instructive. The use of the pardon as a way to intervene upon the severity of the punishments facing Shylock emanates from a religious ideology more so than a legal principle. Determining that Portia as Balthazar has sufficiently made a case for a pplying the Venetia law regarding aliens, the Duke says: I pardon thee thy life before thou ask it: The other half comes to the general state, Which humbleness my drive unto a fine. (4.1.365 - 368) Typically, pardons the church in an ecclesiastical matter (Baker 589). 186 In this particular moment, the use of the any such 186 the Archbishop of Canterbury, William Parry, and Robert Devereux, the Earl of Essex (183 - 184, 300 - 301, 514 - 515). 207 demonstrations of mercy toward Antonio. Portia actually invokes the notion of mercy as she sues for application of this alien statute where the maximum penalty takes his wealth and his life. Where Aumerle accepts the pardon when his illegal bond i s discovered in Richard II , here, Shylock possessions will be removed from him eems to be ignored. Still, living in the world of commercial The play attempts to inject humor by illustrating the financial travails of Bassanio, Antonio, and ultimately Shylock as a mere trifle. Though the plot entertains, it cannot sell itself completely as a but has legal ones as well. At this moment, Shylock reject , looks like criminal plea bargaining where his life and property are at jeopardy. Within this scene of the play, the diverse judgments of Shylock by different characters represent the competing interests in the drama an d the early modern society. Here in 4.1, the characters of Shylock and Antonio emerge as consumed with the notion of judgment. To illustrate, Shylock asks the court: interests arise out of how the court interprets the surety relationship, the penalty clause, the velops as not only important for illustrating the principles of contract law, but for the principles upon which this realm will propel itself from the middle ages into this early modern era. For instance, in this scene, each of the judgments is grounded in common law concerns like notions of expectation, 208 reliance, and specific performance upon which contracts are based. Of course, the principles for the law of remedies here grounds itself in equitable notions, like fairness. 187 In analyzing the different pos sible remedies, the competing judgments of Gratiano, Antonio, Portia, and the Duke unfold. In particular, these varied judgments operate as the source 294, 300), which implies criminality, where this legal matter begins as a forfeiture action notably, a remedy in both contract law and in criminal law. 188 As I have said, the trouble with the case is that it shifts from civil to criminal sensibilities and gestur es in its treatment of Shylock. At pound of flesh. Shylock blood loss from the incision. In spite of the less severe penalties assessed against Shylock, which flow from civil e included a more corporal result. Gratiano suggests that had a jury trial been conducted for Shylock: -- Had I been judge, thou shouldst have had ten more, To bring thee to the gallows, not to the font. (4. 1.394 - 396) 187 Spinosa discusses the struggle between equity and the common law in reading bonds and contracts (65 - 67). 188 judgment finds Shylock not guilty of attempted murder, restores his property, 209 Gratiano seeks imprisonment for Shylock not religious conversion. It is likely that a jury of one, which may have been more commonplace for this per iod. Despite this pronouncement in Act In this legal matter, capital punishment would have been one of the options, where the litigation shifts from trivial dispute between commercial opponents to a case of import with globa l ramifications for this island port of early modern Venice. As evidenced by the Fraudulent Conveyance Act, such matters were similarly of concern to the British realm. At the opening of Act 4, the Duke clearly sides with Antonio in this matter. At first g lance, clause. However, the nature of the judgment against Shylock suggests that more lies as the core of this almost uniform animus against this Jewish lende r. Of note, there exists an issue of class convince Shylock to retract his forfeiture action. The Duke embodies a conflicted figure who vacillates in his jud gment almost as much as the other characters. He grows as indeterminate as the play with its comic and tragic sensibilities. The source of this vacillation may be the rationale on. He posits the legal irregularities , which occur at the original trial as the basis for an appeal for Shylock. Where Shylock, Gratiano and the Duke (Co rmack, et al 147 - 155). Such an examination is vital in determining the validity of the judgments both dramatic and legal. 210 struggles to remain within the domain with geopolitics given that the court demands this foreigner, Shylock, to convert from Juda ism to Christianity as many of its explorers, including Spanish explorers were demanding natives in distant climes. 189 Hence, this struggle between law and religion functions as a parallel in the struggle between comedy and tragedy within the play as well. 190 struggles with the type of legal remedy that represents its ess Conclusion bond (Shylock 4.1.258) emerges as the central instrument legal and material through which to read this play. As the acts progress, so does the biography and the urgency of this stage property the bond. In spite of the extensive negotiating penalty clause. Striking and severing terms of the contract could neither sustain, nor resuscitate ity was allowed a broad spectrum of approaches to resolve early modern cases. Though this Venetian court attempts to apply principles of equity, the result uncovers an inequitable application. Ultimately, Shylock loses his entire estate while pursuing enfo rcement of his bond, worth only 189 Molly Murray also observes that John Donne and William Alabaster convert shortly b efore or after the Earl of 190 Murray addresses The Merchant of Venice and the conversion of Jonson, Dryden, Donne, and others at 28 - 34. 211 3,000 ducats. If Shakespeare attempted to design a sympathetic response to Shylock, the inequitable result of his forfeiture case just might evoke it. In essence, written evidence offers a way to complicate this stage proper ty as it winds its way from the three - party surety agreement, the penalty clause, and the examination of remedies. While early modern history shows that despite the flaws in their available remedies, some penalty clauses like that of the King James I, Walt er Raleigh, and Francis Bacon agreement were enforced. may minimize the importance of props on the stage, we as the audience are constantly reminded that a prop is not merely a prop, but evolves, much as Gosson proclaimed, as the soul of the play. Finally, we may ask: was there justice and equity in the case of Shylock versus Antonio? Within the laws available to this early modern period, I argue that every effort should have been against the good faith that each of the parties should have within a contract. Antonio borrows 3,000 is amount should have been returned to Shylock. As this judgment was offered to Shylock before bringing this case before the court, Shylock would also be assessed court fees and any other costs , which Antonio or Bassanio may have accumulated to address thi s cause. 191 191 rmack et al 151). 212 CHAPTER 4 Volpone Introduction Henry Swinburne, A Briefe Treatise of Testaments and Las t Willes (1590) 192 Although later the Statute of Frauds (1677) required a written document for wills, Ben Volpone (1605) highlights both the earlier pitfalls as well as the importance of placing additional safeguards, like the subsequent requir ements for multiple witnesses and public filings, for these legal instruments. In this chapter, I examine the significance of will formation, the illicit acts , which surround this process, like its compromise by fraud, the distinction between bribes and gi ft, and the intention of the parties. 193 While emphasizing the wrongs, which emanate from these written testaments, Volpone neither repudiates this process, nor the will itself , but offers a way to expand the breadth of individual rights, as the strictures o f English subject diminish . Through most of the plot, the playwright does not offer any legal safeguards to protect will formation. However, in the end, Jonson does punish the wrongdoers; this tactic, I argue, evolves not only as legal ploy, but also in re sponse to the anti - theatrical critics who insisted that these early modern playwrights failed to punish bad behavior in their comedies. In this effort to punish, Jonson responds to the corruption in will formation, but provides no solutions to anticipate o r prevent it. 192 See page 64. 193 - considering accuracy, March 2014. 213 As I investigate this profiteering , I follow how the will functions as a stage property and the key piece of written evidence on this Jacobean stage as well as an important document in legal jurisprudence. I utilize key moments in the materia l formation of the will, like its creation, its exchange, its reading, and its references. By investigating these moments in the life of the will, I reveal the evidentiary implications of this legal device. 194 The comedy Volpone offers evocative moments wher e the issues of fraud and will formation arise to intervene and implicitly comment upon the will - making process. I argue that the manipulation of this legal instrument invokes and the problematic nature of will formation, specifically the creation and the execution of the document and the fraudulent activity, which surrounds the will. For instance, within this play, Volpone and Mosca convince several parties, namely Corbaccio and Corvino, to draft a will conveying their property to Volpone, and, in excha nge, 194 68). Figure 18 Frontispiece of Ben Jonson's Volpone, or The Foxe, 1607, © The British Library Board, C.34.d.2. frontispiece , EEBO STC 2 nd (ed.). / 14783, Greg / I, 259 (a) . 214 Volpone will designate the other party as 195 Eventually, the ruse is detected, but the case is eventually adjudged in cour t at 5.10 and 5.12. In these scenes, the court exposes the fraud, which surrounds this process of will formation. Unfortunately for Volpone, his acts evolve into the corruption of innocents as well. As a consequences, these innocents, Bonario and Celia, br - 4.6, thereby revealing (1601) confronts the matter of fraudulent conveyances to av oid debt, Jonson offers a similar co urse of events within his play. 196 In particular, Volpone promises several secret gifts, retains copies of the multiple conveyances, conspires with Mosca, and exposes the latent denial of wrongdoing in the final act of the play. 197 Volpone serves as an engagin g way to address critical issues dealing with the manipulation of wills and the replication of fraud throughout the play. As the theatrical stage dramati z es this fraud surrounding wills, the legal stage in early modern England evolved as a site where litig ants attempt to perfect their frauds. Indeed, the myriad of court jurisdictions emerged as another way in which litigants in these probate matters could cloak deceitful intentions. While common law courts focused on the strict letter of the law, courts of equity , as the Court of Chancery , handled questions of equity, like fairness to the parties. Although they heard issues on contracts, other times they addressed the detailed issues surrounding wills. Ostensibly, this venue became the jurisdiction for many cases, which the common law courts 195 While the play u will use the same word in spite of this legal distinction between - 35, c 5 § 17, of Parliament surrounding will formation in 1542 - 1543 (OED ). 196 his monograph (101 - 112). 197 See Twyne, 3 Coke 80; (1601) 76 ER 809. 215 declined to address. The Court of the Chancery had a meticulous reputation for record - keeping , which surpassed that of the common law courts and the ecclesiastical courts. The Court was especially active against the quest Bennet v Wheler (1596) (404). 198 With their limited jurisdiction, the Chancery Courts could decide cases that rested on the construction and the intent of the will. However, only the jurisdiction of the ecclesiastical court could determine - 405). 199 In this respect, the duties of the Chancery, in part, involved a testamentary jurisdiction, which included probate law or the administration of wills. During the medieval period, church courts established an identifiable jurisdiction, which determined dispute d wills and the procedure for establishing legal proof to anticipate such disputes. At times, the ecclesiastical courts and the common law courts found themselves ill - equipped to address a remedy sufficiently in probate disputes and had to draw on the Cour t of the Chancery. For example, in the case of Lucas v Burgess (1573), Thomas Wotton certified that the will of John Lucas had been disproved in the Court of Arches, but the matter of the validity of the will still had to be decided by the Lord Keeper. 200 Ho wever, the plaintiff - heir could inherit part of the estate if the will was voided. Hence, the validity of the will was forwarded to two masters, Vaughan 198 hence, he was a legal fiction, as defined in an Etymological Dictionary of Modern English by Ernest Weekley (1427). 199 rt was another reference for the ecclesiastical courts. These courts handled matters like adultery, bastardy, defamation, etc.; its jurisdiction is discussed extensively (Baker 146 - 154), 200 The Court of the Arches is an English ecclesiastical court of appea ls connected to the archbishop of Canterbury r 115). 216 and Yale. 201 Both of these men reported that two judgments had been made in ecclesiastical court against the will. There were five witnesses two examined before the ordinary and three in the Chancery Court. 202 stated that the testator, John Lucas, shortly before his death made t he will in his own handwriting. 203 Armed with this information, the masters concluded that the will was invalid, testament, leaving the considering of the s ame, touching the lands, to the temporal laws and this 204 essence, the witnesses could not have an interest, i.e. financial, in the will. 205 Thus, the court found their testimonies insufficient to validate the purported will. While case illustrates the complex problems of will contests, exposes the issues with witness credibility, critiques the co complicated judgments, the Lucas court fails to offer any safegu his will shall be upheld for his heirs during this period. Not unlike the Lucas v Burgess Volpone , or The Fox (1605) serves as a dramatic site to represent these deceitful intentions , which surr ound the making of wills. testamentum testatio mentis (Swinburne 3). 206 Within the play, this writ ten instrument at once a familial legacy and theatrical 201 Masters, using the Chancery Court as an example, were a part of the large staff of clerks who were often and complaints and issu ed writs. Others dispatched litigations. Some, like the master of the rolls, kept the records of documents authenticated in the Chancery (e.g. patent rolls, close rolls, and treaty rolls) (Baker 115). 202 The ordinary was a representative of the bishop. For instance, an ordinary was supposed to be in attendance at every gaol (or jail) delivery of clerks convicted in a criminal matter (Baker 586). 203 The testator was the person who made the will for his or her property. 204 See Jones 405 - 406, note 4. 205 See 407, n ote 3. 206 217 centerpiece alters into one fraught with devices, schemes, and manipulations , which attack its purported validity. As a written legacy, this legal document emphasizes the significance of the Statute o f Wills of 1540 (discussed in more detail later), which allowed individual s to devise their interests in land through their wills . Unveiling and exploiting this important piece of written evidence, Volpone dramatizes the problematic nature of will formatio n. In particular, I demonstrate how the play addresses the issues of testamentary intentions, the characterization of bribes and gifts to the testator, the will contests, and the perpetration of fraud on the court in a way , which highlights the multitudi nous probate litigation during this early modern era. During those courtroom scenes, Jonson discloses the entrenched corruption within this will process, and the unsavory characters within the conspiracy, but punishes their illicit behavior publicly in vie w of the entire community. Furthermore, on the level of genre and in response to anti - theatrical critiques, he illustrates the punishment of the wrongdoers in the resolution of this comedy. Figure 19 Henry VIII's Will, 1546, Parchment, The National Archives, Kew, Richmond, Surrey, E23/4, fol. 16v Dry stamp register, SP 4/1 membrane 19. 218 However, we should keep in mind that Jonson does not repudiate the importance of the will and its process, nor does he offer any preventative safeguards, which would forestall the shenanigans the audience witnesses during this drama. Beyond the building and felling of kingdoms, Jonson situates a comedy, which demonstrate s that, even among individual subjects, the matter of legacy is filled with import and serious consequence. In keeping with the importance of legacy, primogeniture inextricably linked family, property and power in the period. This law of succession devel ops as the subject of several early Titus Andronicus , where the debate over which brother shall succeed the deceased father the elder Saturninus or the younger Bassianus is one of the opening dilemmas in the tragedy. Still, other plays wrestle with succession, among another set of rival brothers, as in Richard III , or others with the lineage to the throne, as in Richard II . Eventually, ty that one intends to leave. Act of 1544, addressing the succession of his own children, grew relevant to laws, like the Statute of Wills of 1540. This statute was enacted by Parliament and accepted by Henry VIII of England during his reign. 207 For the first time post - Conquest, property became legally permitted for transferal through a will. This event was a seminal moment in the history of will formation. In essence, individuals could now transfer their own interests in land to their heirs and devisees (i.e. non - biological beneficiaries) by a will. In addition, the statute gave testators more power by creating expansive future interests for heirs and devisees and elim inating extensive bureaucratic 207 See 32 Henry 8 c 1 (1540) . 219 Hexter 178 - 179). 208 of succession and multiple offspring from different wives read like a probate nightmare (see above will (1546) ) . Still, in this case, we may also read the seeds of the intertwined notions of law, conscience, and testament from his reign. 209 The law of succession has been d affairs without a will (Jones 400). Exploiting both sin a nd property, Ben Jonson uses the site of the will to dramatize these early modern foibles, following the 1540 statute, in Volpone . In t nature of will formation by emphasizin g its creation, delivery, exchange, reading, and execution intention in distributing his or her property, the introduction of fraud in an apparent contest of will s presents complications, which surround the actual document that should offer clarity. When the Parliament enacted the Statute of Wills of 1540, the legislation replaced the Statute of Uses that governed the transfer of real property (i.e. land) from the deceased to other parties. Henry VIII instituted this statute under the demand of his people who sought to have more autonomy in how 208 Parliament and Liberty from the Reign of Elizabeth to the English Civil War edited by Jack H. Hexter (177 - 180). 209 Seymour, who was made Dukedom of Somerset, his brother Thomas Baron Seymour of Sudeley, Dudley and Wriothesley were made Earls; each of them received cash gifts as well. Legacies are a sum of money, or articles, gi ven to another by will (i.e. bequests) ( OED - 326). where the giver is not m - 55). 220 their property would be divided upon the death of the testator. Des pite its intention, the statute failed at eliminatin g the fraud, secrecy, and other illicit behavior , which surrounded this legal documents in this dissertation: how can the state safeguard the legal intentions of th e contracting parties in the face of intervening fraud? While Jonson does not answer this question directly, he characters. Was this move simply a response t o some of the anti - theatrical tracts during this period, which called for a punishment of wrongdoers in comedy? Or from a legal perspective, it seems that Jonson offers an independent judgment of characters who may ha ve escaped the hands of justice. While this project, Tainted Proofs , builds on the work of Lorna Hutson and Subha Mukherji as they utilize evidence to examine early modern literature, their discussion of Jonson and, in this case, Volpone , does not address his contribution to the work of probate law, particularly the process , which surrounds will formation. Nevertheless, their analysis presents a useful and the evolut ion of plot, the use of rhetorical evidence and - ups of small talk, moments in the e another, suddenly taking center - Hutson investigat es character, plot, and intrigue by considering evidence in an altered light. She rape or murder brought forward, someone thought dead brought from hiding The Case is Altered and embraced instead, a sequence in which no immediate dilemma is set out, and n o history 221 emerges to resolve it (307). Jonson and Webster repeatedly open up the action of their plays, explicitly and implicitly to the judgement, even theatre Volpone (11 ). 210 Neither of interest in reading evidence in the drama of the period. Other critics, however, Ronald Bedford, Lloyd Davis, and Philippa Kelly have produced wor k with wills within early modern dramatic, which cannot be overlooked, as they consider the diverse interventions of wills. They analyze the staging of will - making and its instructive value when played on the stage, particularly within early modern comedie The The Fair Maid of the West (1603) (206 - 211). 211 Though each of these scholars make interventions with evidence and writing, none of these works have examined specifically what contribution written evidence particularly the will and its susceptibility to fraud makes to early modern jurisprudence, where written evidence reveals its place as both an identifiable safeguard and a troublesome tension within this period in the theatric al courts, as wel l as in the legal courts . 210 writing of the law in the battles between Bacon and Coke as justices and the writing of theatre through early modern playwrights like Shakespeare. Though Bacon favored the king and Coke favored the law, both legal scholars agreed on the project of writing the law (74). Helgerson al the new genre of the national history play and then gave that genre a singularity of focus that contributed at once to the consolidation of central power, to the cultural division of class from class, and to the emergence of the playwright Shakespeare himself 211 Early Modern Lives: Autobiography and Self - representation, 1500 - 1660 . 222 Richard II to Julius Caesar . Notably, the manipulated will Volpone . It dramatizes the complications caused by contesting wi lls produced with fraudulent intentions, racing to secure a valuable estate as we contemplate their - givers. Jonson brings an energy and an engaging plot surro unding not only the dramatic problem of wills, but its legal disputes to the play, Volpone . In this way, the playwright merges the legal, the political, and the cultural by exploiting the vagaries of the will, as a stage property for the theatre in respons anti - theatrical tracts. Specifically, this chapter argues that this play will demonstrate how the early modern will process was fraught with illegality fraud, bribes, confidence men, and criminals. The written document itself turns out compromised and its fraudulent state exposes a defect in early modern This drama exposes this staged this play, I examine the problematic nature of will execution in these moments, rich with the social and the financial opportunism for these men and women , who seek their fortunes and others. 223 I n the first act of the play, I examine the collusion of Mosca and Volpone. They seek to central to obtaining advantage over these would - be heirs: Corbaccio, Voltor e, Corvino, and Madam Would - his named heirs. 212 Within this intent, I critiqu will. In this way, I consider how the process of will formation presents the issue of validity as a concern during this early modern era. Also, I investigate how testamentary intent developed as difficult to p rove for the ecclesiastical courts as well as for Chancery Courts, which operated as a more capable jurisdiction for detecting, proving, and punishing fraud. 213 Notably, t he religious inflection abounds throughout this play, particularly in the opening monol ogue in first act and scene, which functions as a sharp contr ast in this world of chicanery that surrounds wills and their formation. examining these wills, I explore the difficulties found in will execution, particularly the moment thus his fortune, they convince Corbaccio to disinherit his son and heir, Bonario. I critique the moment where Corbaccio divests his son of any future financial legacy by surrendering his will to Mosca in a poignantly self - interested moment. Although these transactional moments of Corbac 212 A Briefe Treatise of Te staments and Last Willes 213 See Jones 405. 224 the reading of his will emerge as dynamic moments as well. These sites function as pivotal events, which uncover these written instruments as evidence of fraud and si n. Within this critique of seeming turn toward introspection and the repercussions of not only his illicit acts, but also that of all of the co - conspirators, inc luding his master, Volpone. with Wills Finally , I analyze how the dilemma presented by these wills shifts into a complication for the courts as well. In the play, the characters display no hesitation in perpetrating fraud upon the court. As a result of their financial schemes, Corbaccio not only disinherits his son, Bonario but Volpone also to court, the financial and legal stakes rais this play effectively responds to the anti - theatrical criticism directed at comedies and their failure to punish illicit behaviors enders in this play surprises where Jonson punishes all who have conspired in the play, rather than only punishing Mosca and Volpone. While the playwright does not offer any legal safeguards as such, the punishment on the stage serves as a cautionary legal as well as moral tale for the early modern audience. formation by introducing issues of potential mental incapacity of the testator, Volpone, his diverse conspiracies with Mosca, and his eager heirs and their bribes. 225 - importune him / Unto the making of his (Mosca 1.4.88 - 90) At the beg scene that creates, for this period, a blasphemous worship of money, particularly gold, that sets the scene for the entire play: 214 7), Volpone luxuriates in his glorious possessions: With adoration, thee, and every relic Of sacred treasure in this blessed room. (1.1.11 - 13) Although the preamble to most wills eschew any conspicuous praise of the pound, this monologue e mbraces this love of money and possesses a strong ecclesiastical influence. 215 As he worships his things, Volpone reveals that men will do anything for money at the sacrifice of their virtue: Dear saints, The price of souls; even hell, with thee to boot, 214 Timon of Athens 215 Some of this ambiguity may be accounted for the shift from the Catholic to the Protestant affiliation, which occurred during 215 226 Is made worth heaven! Thou art virtue, fame, Honour, and all things else! Who can get thee, He shall be noble, valiant, honest, wise (1.1.21 - 27) He line 70, his first soliloquy sets up the problem of the play. Within this speech, Volpone tells the wife, no parent, child, ally, / To give - 74). He will trick those who seek his fortune by accepting their many - 86). His soliloquy like the wi illegal, the religious, the social, and the theatrical. For Volpone, the will, his final testamentary alth (1.1.76). In principle, the will embodies the last intention of one who contemplates the legal division of all of the property acy of land , i nstead of the crown . 216 In the first act of the play, Jonson introduces the audience to several characters who provide instrumental roles in carrying out the fraud that Volpone and Mosca, his parasite, perpetrate upon the other characters, who 217 Volpone, who Bastards, 216 For some scholars, this legal document becomes revealing at the level of gender as well (Ferguson, Buck & Wright 16). 217 For further discussion of the role of wills and succession in early modern comedies, see The Fair Maid of the West (1603) (Ferguson, Buck & Wright 223 - 224). 227 Some dozen, or more, that he begot on beggars, Gipsies, and Jews, and black - moors, whe n he was drunk. The dwarf, the fool, the eunuch are all his. (1.5.43 - 47) As poorly as Volpone and Mosca may be characterized for duping these poor, unknowing fools, Jonson offers the audience a way to under characterizes them as carnivorous animals like vultures (i.e. Voltore), ravens (i.e. Corvino), and carrions (i.e. Corbaccio). 218 Seemingly, in recompense for their covetous behavior, Volpone crafts a chara - as his sole heir and executor. Nevertheless, there exists a caveat: Volpone requires all contestants to surrender their estates to Volpone yours is mine . itiques intentionality and wil l formation. From the declaration to the proposal and the exchange of wills, pone and Mosca cecchines , or gold coins, but also the remaining contents of their estates. 219 In this way, the will operates as an instrument of opportunity for the devisees, Volpone, and Mosc a. 220 Invalidating the testamentary intent, the 218 beast fable in which the gre History of Reynard the Fox and by 219 Ben J onson: Five Plays (Oxford and New York: Oxford UP 1988). 220 Both Mosca and Volpone are made heirs in the two wills, which appear on the stage in this drama. 228 fraud in this will contest manifests itself, false declarations, an ailing testator, the prom ised reciprocation, and bribes. Critiquing the Mental State of the Testator and his Conspiracies I begin with a pre be of supreme importance if this document, the will, may be accepted as a valid, legal instrument by the King Lear , many aspersions after he decides to divide his kingdom among his daughters; such a devise would be legal. death, Volpone, at first glance, appears of sound mind and body. Yet, he puts up on a façade to the Figure 2 0 Frontispiece for Henry Swinburne's A Briefe Treatise of Testaments and Last Willes, 1591, Paper, The University of Michigan, EEBO STC/977:05. 229 - - 29). In spite of the charade, he knows the extent of his pro perty. Even if there were arguments that Volpone was mad, throw (Swinburne 121). Some of the requirements serve as key in declaring the capacity of the testator. appear severely weakened to the prospective heirs. mind, Jonson raises, even more significantly, these as potential issues in the crafting of the early erges as important in considering the validity of the will. Here, Volpone plays a role of one who can neither hear, nor see the wiles of the men who seek their ambition through this fortune. He seems to these men Voltore, Corvino, and Corbaccio as one who is deathly ill, who shall not long be with the living, and who has no meaningful quality of life remaining. However, one exception exists: Volpone possesses the ability to devise his will in favor of one who seems loving, deserving, and hopeful. 221 Of course , those who would inherit his estate ignore his actual mental state. For centuries, naming ceremonies play an important role in culture. 222 In the realm of estate 221 ies at note 19. 222 For instance, the naming of a child at his birth has been recognized even in ancient Greece (Garsney 48 - 90). 230 testator knows not only the extent of his or her property, but also knows the heirs. Errors in the 223 In separate instances over the course of this drama, Mosca declares to Voltore, Corvino, heightens, the financial, the social and the political status of the named heir. For i nstance, Mosca the advocate : He ever like your course, sir that first took him. I oft have heard him say, how he admired Men of your large profession, that could speak To every cause, and things mere contra ries, Till they were hoarse again, yet all be law. (1.3.51 - 55) Voltore, this vulture , represents an important figure of the law in this play. To bolster his confidence as the urish of compliments. With such assurances, each heir believes that he is special. This declaration of inheritance proclaims him as such. These false statements by Mosca and Volpone dupe each potential heir. 223 Swinburne also notes the potential for error in the naming of the person to whom the testator bequeaths the property, or the pr operty that the testator owns (890). 231 Not only does Volpone and Mosca take advantage o f this situation where the testator may eve of the promulgat ion of the Statute of Wills of 1540, one of the problems that Cromwell mentioned to Henry VIII arises s own land evolves as financially and socially meaningful. The subject - sovereign relationship yields to individual rights, through the power to make wills. of Wills of 1540 have descended into a conspiracy plot. Here, the plot does not exist in terms of treason as found in my discussion of Richard III , n or murder in Titus Andronicus . Nevertheless, the collusion fosters a rumination upon the principles of law found in the drafting of the early modern will. How we interpret the apparent complicity between Mosca and the prospective heirs is crucial in determining whether there is a valid agreement to conspire. Fraud exists where the drama reveals collusion between Volpone and Mosca and between Mosca and the prospective Mosca never admits that the will is a fraud (131). While the Fraudulent Conveyance Act governs the transfe r of property, the Statute of Wills of 1540 would seem to supersede the previous statute Volpone . Initially, it appears insignificant if one considers the soliloquy that Volpone offers at 1.1.70 - 90. Here at the end of the first scene, Volpone admits to the audience that he engages in: playing with their hopes, 232 And look upon their kindness, and take more, And look on that; still bearing t hem in hand, Letting the cherry knock against their lips, And draw it, by their mouths, and back again. How now! (1.1.85 - 90) Purposefully, Volpone teases these men w ith his property. He will deny them the cherry as he property from these men who, with much encouragement from Mosca, consider themselves In the midst of these outrageous conspiracies, the significance of these fraudulent relationships not only mobilizes the plot, but also dissects the issues of the early modern day on the problematic nature of fraud within this will - making process. The state of the will, legally, emerges as vital when the drama reveals that t he parties actively, with dishonorable intentions, seek to corrupt the legal system , which determines the future pr operty of identifiable heirs among early modern citizenry. These on - going moments of illegality infuse the play where we must determine , whic h instance of fraud is more profound. Both Volpone and Mosca act in legally culpable ways, yet when weighing the guilt of those who act within the conspiracy, it becomes difficult to determine , which behavior is more disturbing the architect, Volpone, or t he face behind each act, 233 Mosca. Yet, not to be overlooked, the drama does not paint Voltore, Corvino, and Corbaccio as innocents; a strong argument could be advanced that they assume roles with just as much culpability for their greed. For instance, Harold conspiracy of fraud and greed, the unredeemable depiction of each of the players is unsurprising, for this play is immen sely concerned about both religious morals and legal ethics of which these players sorely lack. Beyond the cony - catching of Bartholomew Fair , Jonson exposes, in this comedy, a series of fraudulent acts, which surpass mere theft and surround the drafting of the early modern will. The playwright addresses a question about uphold ing the validity of documents. For example, i f court finds that the will is not only invalid, but develops as a part of some financial scheme, the court will find an intentional effort to not only defraud the testator, but to also perpetrate a fraud - making. In spi te of these moments , which invalidate testamentary intent, Jonson likewise reaffirms the ostensible sanctity the characters reveal a need to ensure that the will remains inviolate. Examining the Exchanges: The Bribes Instead of functioning as an authentic document of truth, legality, and charity, the will, in this drama, sits at the center of a series of moves d eceptive, illegal, and greedy. Within this drama, Jonson exposes the vulnerabilities of this written testament. He does not criticize the importance of the will, rather he demonstrates the several moments in the life of the will , which 234 fall susceptible to the secrets, the fraud, and the low morals of fortune - hunting men and women. In each scene, the potential heir uses the gifts (1.1.92, 1.4.69, 1.5.6) as bribes to the testator, here accio present gifts to Volpone so that they might receive his great fortune. 224 Although the early modern system of legal jurisprudence might have esteemed the will as an inviolate, yet this document, in this play, represents corruption. Because of dubious i ntent, the bribes of these potential heirs exploit this crucial part of the will process. Here, the seeming gifts, which presented to Volp one, betray any good intentions, as t hese self - interested inducements seeks to sway Volpone to make a decision in the favor of the one presenting the gift. Even Sir Francis Bacon, lawyer, statesman, and intellectual, admittedly accepted bribes in his role as a jurist; later in 1621, he was committed to the Tower of London, fined £40,000, and expelled from court as High Ch ancellor (More xxvii). Clearly, examples abound during this period, where there exists a seductive quality in the use of gifts to convince, here Volpone, to aim his fortune in the direction of the gifter. Indeed, more than seduction, this dilemma of intent ion veers recklessly towards unlawful weighing lawful and unlawful conduct, several hypothetical scenarios may be considered. If the gifts actually play an e ssential role in the decision - making of the testator, Volpone, then it is possible that the gift is no longer a gift, but a bribe. 225 A clear legal line of demarcation between the gift and the bribe must be identified. While Jonson portrays these tokens as b ribes, I complicate this portrayal. As Thomas More argued about his utopia, the excessive wealth of Volpone and his cohorts anticipates that fraud and bribery will ultimately corrupt this Venetian commonwealth 224 Kings and jurists have sworn to maintain and keep inviolate enacted laws (Travitsky & Cullen 36). 225 Anglo - Saxon and Early Medieval scholar Mary Lou Fellows offers that these exchanges could also be interpreted as cont racts. Electronic Message. 12 March 2015. 235 (45). In spite of the alleged corruption, the testimony. Still, in most cases, the will has the final word. If the court learns how these parties inf drama offers an engaging exercise in which to play out these hypothetic al legal scenarios in a caricatured form. While Jonson sets the play in Venice, I apply the laws of England. Within this discussion, governing the transfer of lan property does not have the governance by the state. While some wills provide for gifts, or legacies, wills offer a way for the testator to transfer land. For instance, Mosca constantly asks for the wills, as he does with Voltore the advocate : When will you have your inventory brought, sir? Or see a copy of the will? (Anon!) - 79) Though each of these men br would be governed by the Statute of Wills of 1540. While the drama is unclear, I assume because 236 During this early modern period, the existence of wills evolves also as an estate planning phenomena. The Tudor reign brought this legal tool to the masses. In the play, Volpone and Mosca u se the will and its chief function, transferring all property to a chosen heir, rather than one who , which seems to be the tradition covered by the Statute of Uses. This statute was the controlling legislation bef ore the Statute of Wills of 1540. Although the Duke of Norfolk argued that the Statute of Uses was the worst statute ever made, the Statute of Wills arose out of the complaint from the Pilgrims of Grace in 1536. In this controversy, Richard Aske, a barrist those lawyers from exploiting the loopholes in the legislation. In a swift respons e, Henry VIII refuted , which Aske raised , were placed in the preamble of the Statute of Wills of 1540 (Baker 679). 226 Some of these gestures by the crown inval idate the truth and the transparency of the will. final intent, in Volpone , transforms into motives inconsistent with the 1540 statute, which creates an identifiable way to leave his land to his heirs and to reduce any legal bureaucracy that would example, Volpone and Corbaccio intend to steal the other this motive lacks the finality, last will . The wills seem transparent, yet the activities of the characters, which surround the drafting of these wills complicate the face of the will. The rhetoric, the languag e, and the performance all give the audience reason to distrust the will. 226 The Oxford History of the Laws of England volume VI: 1483 - 1558. 237 In the following section, I explain two problematic events, which interfere in this process of will formation: will contests and the reading of wills. Again, in this moments, Jonson demonstrates how vulnerable this written document emerges in these key moments in the life of these legal instruments and the stage properties, like their exchange and their reading. PART TWO: 3.9, 5.2, and 5.3: The Contest of Wills and the Reading of Volp carrion, my she - wolf, and all, / Greedy, and full of expectation (Volpone 5.2.64 - 67) exposes the darker agendas of each of these characters, this dramatic exercise actually achieves Jonson at 3.9, Volpone and Mosca have baited each of the characters, Voltore, Corbaccio, Corvino and later Madam Would - ntest by submitting his own will to Mosca and disinheriting his son for interfering in their schemes. - 9) (which I discuss further below). After years disinherit his biological heir arises as profound and compelling commentary on this broader function of the will and the co ncomitant increased legal and societal vulnerabilities. For instance, .2.67). Corbaccio asks Mosca: How does [Volpone]? Will he die shortly, thinkst t - 238 by will naturally raise questions about his role in this conspiracy; such calculating antics provide another layer of complexity and fraud. Eventually, in this contest, Mosca expresses regret and a change of conscience, however brief, as he mentions throughout the play. Indeed, such moments appear latent, lacking in sincerity, and ethos within this romp, and ultimately permeates the seemingly unrepentant comedy , as a charade . For each of these confidence men, they surrender this vital, moral part of themselves in their effort to pervert the almighty will. agendas that the cha racters offer here in this play, as I look for meaning, transparenc y, and truth with in the multiple written testaments. In the execution of these wills, I also find moments, where the law fails when it must rely upon these hollow documents hoarded by their carnal authors with greedy expectation. These written proofs repre sent evidence, but often reveal the tensions between the legal and the illegal, evoking deception, much as Iago confesses to Roderigo in Othello - faced demeanor while presented as truth, they embody deception. Although I consider the acts of fraud and undue influence in the execution of the will, I argue that the problem in the contest of wills is this corrupted instrument, and involves this transfer of property to and from charact ers, who are just as unethical, and disreputable in nature as the other. Here at 3.9, Voltore the advocate - this written device creates for this society manifests itself in the inability to trust its contents. In spite of these difficulties, Jonson neither renounces the importance of wills, nor attempt s to jettison its use. Normally, the execution of a will may be trusted if signed, sealed and delivered be fore with four witnesses to revoke a power 239 of a deed, by a writing, under hand, and seal, with three witnesses (Swinburne 76). Yet, within this contest, the presence of duplicate d , modified, and secret ed wills raises questions about reliability. 227 Jonson pr esents to this audience a tension that is identifiable as a legal document, tangible in its physical materiality, and perhaps prevalent in its constant use within this particular period. The Will Exchange In a perverted display of the process in will exec ution, the importance of the will exchange exchange, even a failed one, arises as significant in the life of the will. This physical exchange implicates both the event brings attention to this stage prop. With this attention, the drama emphasizes the life that this will has not only on the stage and in the theatre, but in the courts as well. For instance, the delivery possesses not only physical, but legal implications. According to the law, the heirs have a right to demand delivery from the executor in equity (Swinburne 38, 1045). 228 By analogy, the drama Volpone provides such a provo cative exchange of wills and an opportunity for deception, at 3.9 and 5.2, where Corbaccio the old gentleman gives his will to Mosca at 3.9 and Volpone gives his will to Mosca at 5.2. With their game threatened, Mosca informs Corbaccio: Your son, I know n ot, by what accident, Acquainted with your purpose to my patron, Touching your will, and making him your heir; 227 - 310). 228 Heirs are also referred to as legatees by Swinburne. 240 Entered our house with violence, his sword drawn, Sought for you, called you wretch, unnatural, Vowed he would kill you. (3.9.2 - 7) Undaunte - 9). In a striking show of trust, Corbaccio gives Mosca not Volpone the will. At a moral and ethical level, Jonson galvanizes the audience where the outrage s son, turns into our outrage. In the face of this chicanery and greed, t in this scene plays, as Jonson may h ave intended as sinful. Despite its moral implications , this moment is filled with enormous legal consequences, which exposes the weaknesses of the Statute of Wills. Within Volpone , from the moment when wills are delivered in contravention to the requirements of the law, the possibility for legal action develops. The playwright provides the audie with Celia 65). This will exchange is cheapened, and corrupts the very process that would help the courts prove the validity of the will. With its legal and physical implications, t he exchange of the will should not be overlooked. To analyze this act of delivery, I draw upon the notion of intertheatricality. The concept of that is the Aristotle and Marx, he suggests that intertextuality develops as dyn 241 upon and transformed by thea - 70). Within this examination, t wo works, where I here examine Jonson. While h 126), I follow the movement revealed in the delivery of written stage objects. He also uses the Specifi functions as the foci bridging both the material and legal. Beyond the evidentiary importance of the moment, it is worth emphasizing the audience witnesses two will exchanges one between Mosca and Corbaccio the old gentleman and the o ne witnessed later between Mosca and Volpone. The level of greed demonstrated by these characters unfolds distinctly in contradiction to that sin greed among those seven deadly sins against which early modern audiences were warned as a part of their religi ous instruction. 229 Though we The Merchant of Venice , we still have the sacred tenet against the love of money. 230 In this play, this love supersedes all manner of ills, including the suborning of p erjury, averting a rape charge, and offering up two innocents, Bonario and Celia, to avert the suspicion that is growing against Volpone at The Scrutineo (the Venetian law court). 231 These exchanges of wills turn into a part of the larger conspiracy to incre ase - be inheritors of their riches. Easily embodying the clever conman, Mosca as the obedient and the loyal servant to Volpone goes over and beyond his duties in this scheme. Battling both sin and illegality, this pl ay easily encapsulates the torn 229 Sin in Medieval and Early Modern Culture: The Tradition of the Seven Deadly Sins on the topic i n Thomas Dekker and the Culture of Pamphleteering in Early Modern London (71, 125 - 128, 138). 230 231 searching, of scrutinizing, derivative of scr t r The New Oxford American Dictionary, Third Ed ition (1572). 242 jurisdictions between the ecclesiastical courts and the Chancery courts fighting fraud, forgery, and foolishness as litigants attempt to validate and execute wills. 232 of wills in this contest. Jonson provides this moment where the greedy expectation of the potential heirs might overwhel m the normal testator, where those potential threats, the intimidation, and those repercussions from e individual over another becomes enormous. However, Volpone em bodies the uncommon testator, and offers another dimension to considering wills in his exchange with Mosca the parasite. In particular, Volpone says: And take upon thee, as thou weret mine heir; Put in thy name. (5.2.69 - 73) Again, Volpone asks Mosca to put on a façade that continues the fraudulent gam e in this will o lpone tells one will here , which develops as definitive, as would be the typical case. Not only will he pr ovide this display for the competitors, Corvino the merchant , Voltore the advocate , and Corbaccio the old gentleman , but Volpone further directs - 72). In this 232 Sir Edward Coke and the Reformation of Laws (2014), specifically his discussion of the spiritual jurisdiction of the ecclesiastical courts (129 - Limits of Coope - 248). 243 pivotal mome nt of will creation, Volpone introduces a chest , Though it was not uncommon to have multiple wills during this early modern p eriod, for the multiplicity breeds duplicity in this play. 233 Because the conveyance of property occurred many times over the lifetime of a testator, individuals had several wills drafted to reflect the distribution and acquisition of real property. Most importantly, this discussion of wills necessarily implies a discussion of land. This transfer of land provides another complication in this movement backwards and forw ards between the se conveyances through contract s , gifts, and here most especially wills. Volpone goes further here , 234 When Mosca asks Volpone how he shall subs tantiate this death, Volpone provides a plan. Mosca: But, what, sir, if they ask After the body? Volpone: Say, it was corrupted. (5.2.76 - 77) Tutored by his master, Mosca assumes an integral part of this contest this game that Volpone creates ov act 2 of the play. 235 As a logical nexus , t his mixture of game - playing, 233 Devising, Dying and Dispute: Probate Litigation in Early Modern England . 234 The legality of directing another to sign the will for the tes tator (i.e. proxy) also offers a fruitful legal inquiry into the authenticity of the document. 235 See Jungman 64. 244 - in this play. In addition to the discourse upon playing games , the representation of corruption reveals an evocative dialo gue where Mosca asks , as cited above - exchange, Jonson again underscores this theme of corruption in this play, which, l ike The Merchant of Venice , is also set in Venice. The characters constantly discuss, particularly through the knight, Sir Politic Would - Be and Peregrine, the traveler. 236 Within their dialogue, Jonson highlights for the audience the Venetian setting, and co ntrasts the experiences of the knight and the traveler with the society, which the playwright creates for this comedy. Through their repartee, Jonson asks the audience to draw distinctions between this locale in Italy and other locales, like London. Sir Po litic Would - Be the knight tells Peregrine the gentleman traveler 237 Though the two men speak lightly upon the affairs of the world in Venice, London, France, and Spain, they have meaning. For instance, Peregrine speaks to the audience in an aside about Sir Politic: Oh, this knight (Were he well - known) would be a precious thing To fit our English stage: he that should write But such a fellow, should be thought to feign Extremely, if not maliciously. (2.1.56 - 60) 236 237 As You Like It . 245 Here, the playwright asks the audience to read Sir Politic as false. Even the reference to Sir Henry Wotton, ambassador to Venice for almost twenty years, at 2.1.17 does not appear inadvertent. 238 Wotton was known to have said of the role as amb sent to lie abroad for the good of his country." 239 Apparently, while asking the audience to consider and its p olitical implications for the audience in this scene. While the exchange of wills complicates the document as evidence and the characters , Volpone says to Mo With unmistakable language , some parchment is presented to the servant on the stage so that he might continue the play highlighting the affluent society in Venice, men and women, young and old, merchants and advocates. 240 Jonson offers different characters , which would represent property owners at this time. Yet, what ambition, greed, and calculated fraud. These characters devel ops as fodder for the early modern 238 Five Plays (1988), notes the reference in his footnote at line 17 at 2.1. This is the edition to which I use in the line numbe rs for the play for this entire chapter. 239 See page 287, note 9 at in The Plays and Poems of William Shakespeare, vol IV . Ed. Richard Farmer , Nicholas Rowe , George Steevens , Alexander Pope , Edward Capell , Edmond Malone , Samuel Johnson (London: F.C. and J. Rivington 1821). See also The Life and Letters of Sir Henry Wotton ed. Logan Pearsall Smith (1907) where Wotton t - 20). 240 In re - 47: 246 state of the crown, Richard, and En gland in Richard III , here in this comedy the fractures occur squarely with the individual - The Reading of The reading of the will is a significant legal and communal function for those who have an expectation of an inheritance. 241 Like the exchange of the will, the reading of the will emerges as meaningful as well. The reading of this document on the stage illuminates the material properties of this will from its movement across the stage to its ultim ate repose. In spite of its material import, the reading of the will should not be legally diminished. In Nash v Edmonds , the reading of the - 14). 242 Generally, 241 Inheritance practices discussed a Benedict Anderson (Ferguson, Buck & Wright 123). 242 See Nash v Edmonds, Cro Elizabeth 100, et Dyer, 172, note 2. Figure 21 William Shakespeare's Will, 25 March 1616, Paper, Shakespeare Birthplace Trust, f.22v, The National A rchives Kew, Richmond, Surrey . 247 each individual gath ers when either the lawyer, the executor or the designated person reads the contents of the will. Interestingly, Jonson provides just such a moment in this play as well. At 5.3, pted will to the would - extensive property. Corbaccio the old gentleman the contents of the will, Voltore, the advocate reads the pertinent portion of the will, and confusion, Mosca continues to inventory the elaborate wealth of Volpone as the gravity of this moment impacts th wills becomes realized . Relishing his triumph, Volpone observes their disparate reactions: Look, see, see, see! How their swift eyes run over the long deed, Unto the na me, and to the legacies, What is bequeathed them there . (5.3.17 - 20) In this sequence, h e notes how Corvino the merchant faints, and the lady swoons. Still, Corvino Still boasts re, Mosca is not false, exactly, for t his present charade is foisted upon him by Volpone. N evertheless, in this moment, Mosca plays the hapless servant effectively by ignoring the confounded state of these would - be heirs. Vividly, he displays a dismissive attitude and plain words about their willing participation in wrongful behavior with Corvin o the merchant 248 as an opportunist with her feminine wiles. 243 A devastated Corbaccio the old gentleman simply repeats Voltore the advocate , but this time as an 63). Having regained his tongue, Corvino calls Mosca out: - - 65). In spite of this emotional display , Mosca responds with probably the most biting revelation to the others: Are not you he, that filthy covetous wretch, With the three legs, that here, in hope of prey, Have, any time this three year, snuffed about, With your most groveling nose; and would have hired Me to the poisoning of my patron? Sir? Are not you he, that have to day in court Professed the disinheriting of your son? Perjured yourself? Go home, and die, and stink; If you but croak a syllable, all comes out: Away and call your porters, go, go, stink. (5.3.67 - 76) Candidly exposing their hypocrisy, Mosca has placed th ese would - be heirs in a seemingly yet if the ruse becomes public, all plots would have grave consequences for them. Here, these 243 ords can be detached from their point of n dramatic style (1073). 249 defeated contestants have been du ped while trying to swindle Volpone, and have lost to their handler, the artificer, Mosca. In this dramatic instance, t full of objects, and while many of these objects fail to draw extended notice fro m the plays themselves, they remain integral to their dramatic worlds not despite but because of their hen the audience might read a stage object in the same way as the dramatic characters. We run the risk of merely limiting our analysis to the effect on t As discussed at the outset of my analysis, the will is the legal document , which defines testamentary intent and the final say for the departed. The courts rely upo n this document unless they have sufficient cause to discount its veracity. Resting upon this knowledge, Mosca uses the strength of the evidence and duress that he has before him against these would - be heirs. 244 With finality, Mosca the parasite says in this scene, as I noted - 15 ). As we have discovered in this scene, even the swindler sometimes gets swindled. Within this final section of the chapter, I explore how the illicit behavior , which surrounds the wills of Corbaccio the old gentleman and Volpone reaches its pinnacle displa y within the 244 Swinburne discusses the prohibitions in the law of England against duress; that is, when a person has been found to have his or her want of ability or freedom of will restrained (140). In addition, Baker discusses duress, incapac ity (infancy), suspicion, or tampering after execution as several ways to invalidate a deed (369). 250 conspicuously in response to the anti - theatrical critics. PART THREE: 4.2 and 5.10 : Perpetrating the Fraud on the Court w ith Will s (Voltore 3.9.21 - 22) 245 Volpone offers two provocative moments, which include a perpetration of fraud on the court with will s . 246 Occurring across several scenes at the Scrutineo, the fi rst court moment at 4.4 - 4.6 presents itself as an early attempt to expose the deceitful shenanigans of Volpone and Mosca, which surround these written testaments: Corbaccio and magistrates) enter to begin the proceedings, where several charges are leveled against Volpone and Mosca. 247 In their initial accusations, Bonario and Celia accuse Volpone with the attempted rape of Celia, Corvino the merchant earlier they charge Mosca and Volpone with collusion in the disinheritance of Bonario by his father, Corbaccio the old gentleman (3.9.27 - 39). Katharine Maus emphasizes the masterful rhetorical display , which Voltore presents before the Avocatori in this first trial, in spite of the 129). Of course, I insist that the on - going discussion of wil disinheritance, functions as the representative thread in this first trial. During the second court 245 22 for 3.9.22 (297). 246 s edited collection, Early Modern Theatricality discusses the perpetration of fraud on the theatre at the Swan and at Northumberland Hall make playgoers pay for plays, which they never see . These con men, Richard Vennar in 1602 and Qualitees at Northumberland House decades earlier, flee with the returns to leave the playgoers bereft of their money and the entertainment (59 - 59). 247 edition of the play. Of note, they enter discussing the charges without stating the formal legal charges. 251 scene at 5.10 and 5.12, the allegations accuse Mosca and Volpone in their collusion surrounding particularly telling where the entire play has centered upon the fraudulent drafting of wills, the instigating of testators surrendering estates under false pretenses, and the disinheriting of rightful heirs. Bonario and Celia v. Volpone and Mosca: Trial I Once the fraud shifts from the environs of Venice to the actual courthouse, the lies now evolve into perjury. At 4.4 the scene opens at The Scrutineo. Here, the parties, Voltore the advocate , Corbaccio the old gentleman , Corbino the merchant , and Mosca, have conspired to (4.4.2) as part of an agreement where Mosca asks: Is the lie Safely conveyed amongst us? Is that sure? Knows every man his burden? (4.4.3 - 5) 248 E very conspirator has his part, and e very lie depends on their mutual agreement to carry out this conspiracy. With these series of questions, Mosca voices this concern, for his safety from legal jeopardy depends upon each man bearing his own weight in th is plot. 249 touch for maintaining multiple plots within this larger conspiracy. With equal cunning, they devise hese would - be heirs. Still, Mosca, 248 See also The Scrutineo described as the Senate House (Craig 556). 249 Again even within this conspir acy, there exists additional plots where Mosca promises Corvino that he has - 252 - 16), finds a way to assure each of these men (4.4.12), is aged, and Mosc a uses his age to dismiss his possibility as a competitor in the claims to the merchant as a dupe in his own right as a publicly attested cuckold in this scandal surrounding Celia, his wife. At court, Voltore the a dvocate serves old, and the tongue emerge as mere tools in this conspiracy, and all grow easily dispensable. Before the proceedings begin, Mos ca makes an interesting move, as he offers what might on: Worshipful sir, Mercury sit upon your thundering tongue, Or the French Hercules, and make your language As conquering as his club, to beat along, (As with a tempest) flat, our adversaries: But, much more, yours, sir. (4.4.20 - 24) In this monologue, his mythical allusions to Mercury and Hercules introduce connotations of ansforms 253 into a troublesome result. Here, the collusion with the other would - be heirs/witnesses unfold to complicate their legal victory. Inevitably, this court exposes another startling facet of the fraud. Here, the allegations against Volpone accuse him each of the parties and the witnesses to The Scrutineo to answer the charges made by B onario and Keeping the conspiracy cloaked, Voltore the advocate, attempts to dissuade the Avocatori from - 15). Despite this effort, the four Avocatori will not be persuaded. As a result, they ordered the officers to bring Volpone to the Senate - House. The answering of a court action (or writ) is one of the most vital precepts i n the rules of law (Baker 63 - as a violation of the law for the Avocatori. While Voltore attempts to explain, these magistrates the advocate attempt here? How can they decide a matter accurately without the presence of all the parties? With one accused with such morally debased allegations as Volpone, his presence is not merely required here, the Avocatori demand it. Though the ma tters before this legal body include both attempted rape, and what amounts to fraud, the discussion, which addresses the will, develops as most insightful. At the outset, it appears that the Avocatori has made its decision against Volpone based upon the pr ior reputation of both Bonario, Corbaccio the old gentleman the merchant both 254 this advocate newly blessed by the compellingly, lo quacious Mosca, succeeds in transforming a strong case against Volpone to the probable incarceration of Bonario and Celia. In a convincing display, Voltore weaves a tale one of the most vicious character assassination before a legal body in dramatic litera ture. In his version of the facts, Voltore estimation, in to a dastardly couple who plagues the very environs with their sinister nature. In warning, Voltore the advocate tells this Venetian court: Wherein, I pray your fatherhoods, To observe the malice, yea, the rage of creatures Discovered in their evils; and wh at heart Such take, even from their crimes. (4.5.49 - 52) This beleaguered endure thi s now sympathetic figure, had no choice but: Growing to that strange flood) at last decreed To disinherit him. (4.5.57 - 59) Voltore doctors the facts, spins the focus, and ingratiates the conspirators to these ma g istrates. Effortlessly, Voltore the vulture, weaves his web of lies for this court with finesse, prowess, and experience. 255 Even with this well - weaved facts against Bonario, the son has not yet assumed the role as persona non grata . Voltore must provide a s candalously scintillating story for this court , which court will not find completion without the right framing of these key facts. Voltore must deflect the atten tion away from their on - Shockingly, this advocate efforts were meant to: stop In the old gentleman; redeem themselves, By laying inf amy upon this man. (4.5.88 - 91) In a parade of perjury, the co - conspirators, Corbaccio, Corvino, and Lady Politic Would - be the , testify against Celia and Bonario until the Avocatori leave the court to determin e 250 While Voltore and company will secure a judgment in their favor, the delayed judgment against Bonario and Celia offers a temporary 250 256 reprieve for Volpone and Mosca. The rhetorical proofs , which Voltor e provides , are insufficient. The early modern law, even in the Chancery Courts and ecclesiastical courts, wanted written evidence even then, those cases, like Lucas v Burgess , did not always favor the written proofs. 251 The scheme for this first trial will disintegrate, for it was built upon witness testimony alone ; the second trial, built upon written proofs, will provide the finality to this matter. With this brief ir game with these would - be heirs. Bonario and Celia v . Volpone and Mosca: Trial II With this second trial , a different resul t occurs in the final court scene s at 5.10 and 5.12. Crafting a play filled with dichotomy, Jonson imbues the scene about con men, fraud, and vice with constant references to religion , conscience, and virtue . Instead of language peppered with ce, here I prostate / Myself, at your offended feet, - 12). In a startling display, he refers to the Avocaori as spiritual advisors: It is not passion in me, reverend fathers, But only conscience, conscience, my good sirs, That makes me now tell truth. (5.10.16 - 18) Th roughout the play, th is constant referen ce to conscience and truth operate as ru nning themes . This drama, as consumed as it is about the law, these wills and evidence, engages especially with 251 Citing Lawrence v Kete et al Alleyn actual devise by word, is no sufficient grounds for a st ranger to write a will, but there ought to be an actual will 257 concepts like conscience, repenta nce, and truth, which surr ound this religious motif. While at key moments Jonson invokes these ecclesiastical principles, the playwright ironically imbues this drama with a sense of seriousness that would seem out of place in comedy with a less skilled han d than Jonson. In spite of its apparent effect, this confession appears at once problematic for Voltore, this een the instru - 19), and takes no ownership for his own covetous actions, his preying upon the wizened wealthy, and his fraud this game of wills. In effect, Voltore the advocate has lost the contest of wills and possibly more if he does not play the repentant advocate. before this Avocatori. I nstead of finger - pointing at Volpone, this group of malefactors make Mosca assume this role. Finally, truth begins to unfold after all of the fraud, the pimping, and the games. Contriving his own description, Corbaccio the old gentleman tells this judging -- - 46). Clearly, they no longer function as a united group of conspirators, so Corvino the merchant refutes Voltore by telling the Avocatori: He does speak, Out of The thing, he gaped for; please your fatherhoods, 258 The other, but he may be some - deal faulty. (5.10.27 - 30) Abruptly and completely, the co - conspirators dissemble, as Corbaccio claims that both Mosca and Voltore are knaves. Then, Corvino insists that Voltore speaks with envy against Mosca because - deal each Corbaccio and Corvino, they both agree that Voltore is false. Although Corvino tells this governing legal body that truth may not be found with Voltore, the merchant attempts to speak truth. Ultimately, t he co - conspirators give up the fraudulent consp iracy to defraud each other and the courts. Again, the resolve for truth appears, as they find themselves losers in the contest of wills and without any further moves to make on At 5.12, the final scene develops in two important ways. Fi rst, the scene portrays an examination and an - theatrical Puritans who suggested that sinners are not punished on the stage but merely forgiven. J onson aligned himself with the conservative sect in London (Leinwand 11). In a letter that Jonson wrote in 1607 dedicating the Quarto to Oxford and Cambridge, he addresses many of the issues , which seem quite evident in the drama where religion and the law function together in the issue of will formation (McEvoy 53). In part, Jonson writes: And though my catastrophe may, in the strict rigour of comic law, meet with censure, as turning back to my promise, I desire the learned and charitable critic to have so much faith in me, to think it was done of industry: for with what ease I could have varied it nearer his scale (but that I fear to boast my own faculty) I could here insert. But my special aim being to put the snaffle in their mouths, that cry 259 out, we nev er punish vice in our interludes, etc. I took the more liberty; though not without some lines of example, drawn even in the ancients themselves, the goings - out of whose comedies are not always joyful, but oft times, the bawds, the servants, the rivals, yea , and the masters are mulcted: and fitly, it being the office of a comic Poet, to imitate justice, and instruct life, as well as purity of language, or stir up gentle affections. ( Volpone , Dedication, 101 - 114) In pondering this scene, Jonson draws from the l language as a preamble to wills effectively marries both religion and the law in the drafting of early modern wills. and the falsity of the will exposed. The first Avo - 42). Not onl y does he admit that he recognizes the writing, but Volpone admits that the will is fraudulent will both come bef ore the court as corrupted documents, which are fina lly revealed to the court here at 5.12. Though Volpone refutes that Mosca is guilty, this bold declaration reveals its insignificance when compared to the dialogue, which follows, between the disguised Volpone and Mosca. 260 When Mosca enters disguised as Cla rissimo, Volpone asks Mosca to confirm that he, move, Mosca refuses to do so, and haggles with Volpone for his wealth. Having learned well, Mosca uses this moment to vie for a portion of t he imperiled Vol nitially, the parasite asks him for one - half of the fortune. With much reluctance, Volpone finally agrees. Then, abruptly, Mosca changes his mind and then determines that such an amount is insufficient. Finally losing trust in his par asite, Volpone determines that Mosca will not be reasonable and so he unveils himself to the A vocatori, and - 91). Once ever - 122). Thereafter, he shall go to prison. They banish the advocate Voltore from the legal profession and The Merchant of Venice , the the berlino beat out with stinking fish, / Bruised fruit, and roten eggs (5.12.137 - 139, 140 - 141). The merchant Corvino must also return his wife, Celia, to her father with i Corvino (5.12.106). The first Avocatori concludes that mischiefs feed / Like beasts, till they be - 151). While Syme suggests that the Avocatori is questionable 261 and the court does not exist as the source that roots out corruption (70), I argue that the court does expose, through happenstance, the corruption. Conclusion force: for albeit honest and modest intercession, or request, is not prohibited, yet these fraudulent and malicious means, whereby many are secretly induced to make their testaments, are no less destestable than open Henry Swinburne, A Briefe Treati se of Testaments and Last Willes (1590) 252 for not only the Statute of Uses and the Statute of Wills of 1540, but also the continued critique of illicit behavior , which surrounds will formation. With his life, Aske reaped the consequences of the illegality of his rebellion against Henry VIII. In spite of his execution, these ground - breaking statutes led the way for individuals to proscribe the future for their own landed estates. As Parliament drafted this legislation, they attempted to address the problematic nature of will formation with its secrecy, its fraud, and confidence men and women. By 1605, more than fifty years after the promulgation of the Statute of Wills, t he fraud , which surrounds formation persists. Jonson uses his comedic vehicle, Volpone , to highlight this fact. Within this drama, Volpone, supposedly wise and wealthy, eschews the life of peace and plenty and the legal process, which was purposed to safeg uard his riches, encourage truth - telling and expose lies, deceit, and conspiratorial relationships within this Italian village. Within the scenes of this drama, warring for wealth, theories of evidence, and notions of punishment function 252 See page 22. 262 at the epicenter. Most problematically is that Venice is filled, with characters who create, covet and collude in the obstructionism that advanced fraudulent wills. its integrity, the e arly modern era likewise struggles to find its way as it begins to mandate against - once the central force, meticulous master and arbiter of wills, devolve into a role as passé in the growing complexities of jurisdiction, equity, and individual rights. This early modern legal community rests its confidence on the statutes of Wills and Frauds, the parole evidence rule, and the vigilant body of jurists, like Henry Swinburne who zealously defended the sanctity of written proofs like wills. Hence, the debate over the level of protection of proofs and the growing field of probate serve within Volpone and in early modern culture to guide the way to the next century of l egal and literary scholars. 263 CHAPTER 5 Reputation, and Legal Advocacy Introduction The brief is at once a legal document co Law Case letter in Titus Andronicus , to exploit familial and sexual relationships. 253 This exploitation destabilizes Rome and its empire in Titus , but its effect alters in the Neopolitan society and the family unit here in King John fers more n full view of the audience, i ts appearance on the stage evolves also an oddity since the document is not typically presented in a public forum. In general, a legal brief would contain instructions for conducting a case in court, summaries of witness statements and pleadings (i.e. legal statement of the case). 254 While traditionally the brief could also request advice (i.e. an opinion) or provide a draft of a pleading, the legal document offers a way to frame the entire argument for a case; it effectively guides the advocate in his representation of a client. For example, a brief for a defendant is pictured 253 In February 2015, I submitted a portion of this chapter for - Shakespearean Seventeenth 254 A pleading is a formal written statement in a civil case, which sets forth the cause of action or the d efense ( OED ). 264 below regarding a debt action, where John Fanshaw sued Carew Mi ldmay (1657) , and the defendant used several pieces of written proofs , including inquisitions, deeds, and agreement, to support his claim . 255 Within this chapter, I examine how the play dramatizes the drafting of Sanitonella the law the illicit, vengeful, and unethical behaviors, which instigated its creation: a nobleman and Ercole a knight , and taking false and frivolous legal claims to court. In this way, the play fornication, adultery, and bastardy. Throughout this chapter, I will refer to these illicit pregnancy 255 In this case, the evidence for the defended included: an inquisition of 1556 - 1557, a decree of spiritual court in 1562, a deed of 1596, an inquisition post mortem 1605 - 1606, an agreement of 1638, a perambulation of the forest in 1642 and th e testimony of six witnesses. Baker, J.H. Electronic Message. 13 June 2014. Opinions were usually written at the foot of the legal brief. The brief pictured above was provided courtesy of J.H. Baker of Cambridge odies: some evidential problems in legal history (2001) (69 - 70, 87 - 89, 171 - 186). Figure 22 Legal Brief for a Defendant, 1654, Paper, J.H. Baker. 265 l term during this era. In addition, I interrogate the way in Romelio. As the drama presents its own examination of the brief by law clerks, lawyers, and fut ure judges, I critique an identifiable concern about legal ethics and the role of legal professionals, which rests at the center of these dialogues. The legal brief emerges as susceptible to not only sexual and ethical deceptions, but also to material vuln erabilities, given that the physical document is destroyed by a legal advocate. How does this tearing of the original brief and the use of the copy also implicate the problematic deployment of the brief and the attempt to safeguard such legal documents fro makes the case of Leonora versus Romelio unprecedented not merely in terms of the legal claims, but also in the presentation of this stage property, as the centerpiece in the early modern drama. , whi Case - 3, 13 - 15). Though used often in the legal community, this legal emerges a to ol intended for vengeance so that Leonora may act out her vehement anger against her son Romelio for the attempted murder of Contarino kewise fails. Given the early modern appetite for dramatic blood - thirst, I find a fruitful discussion in how this play especially in its use of vengeance The Merchant of Venice , in its genre as a tragicomedy. Interestingly, th e brief and this stage piece, signifies this generic blurring, given that not only the failed attempts to achieve revenge, but also the comic relief that the play 266 seeks after the bloody act of dueling offsetting the dueling, which operates as bookends occu rring both before and after the trial. 256 to consider the early modern ecclesiastical trial as a way of charting the cultural discourses, interests, motives, and cons traints, as they shape the interplay of connections, between two institutions the theatre and the church courts. 257 Since the time of King Edward I, the ecclesiastical courts had been given unfettered jurisdiction over marriage, bastardy, wil ls and family ma tters, [such as (Baker 149 - 150). In general, the church courts had been for many years an arch enemy of Sir Edward Coke, named Solicitor General by Queen Elizabeth I and a staunch a 258 This coupling made these church courts professiona lly appealing. For instance, during the early modern era, the diocese at Salisbury included three archdeaconries: Salisbury, Berkshire, and North Wiltshire. 259 The North Wiltshire archdeaconry offers a provocative insight into the nature of early modern chur ch courts. (22 - 23). 260 256 ive of a duel was one of the main types of litigation in several courts, particularly the common law courts at Westminster, the church courts, the Star Chamber, and the High Courts of Chivalry particularly in the High Courts reconstitution between 1623 and the Civil War (5). 257 Shakespearean Negotiations (15 - 16, 113). 258 Coke was concerned that the church courts might expand their jurisdiction over matters, which were not age 136 in Sir Edward Coke and the Reformation of Laws (2014). 259 Syst (1836). 260 Act books provided vital information including the number of suits, the names of the parties, home parish, residence, a nd the sex of the involved parties (Sharpe 6 - or report of some offence or fault, made by a churchwarden or other parish 267 These archdeaconries are interesting case studies, especially if one reads their anomalies, alongside the proceedings for cases of fornication and adultery in the Elizabethan Wiltshire, the Jacobean and the Caroline Wiltshires. From t hese we can learn of the pervasive social preoccupation with tracking, controlling, and punishing adultery and fornication in the period. In the Elizabethan Wiltshire in the North Wiltshire church courts, the number of fornication and adultery cases from 1 587 to 1599 increased involving single and widowed women. Based on these shires, the reporting of unmarried sex increased significantly in the span of time since T itus Andronicus (1593/4). Actually, in the years that followed, the reporting of unmarried sex for Law Case was published, the numbers overall declined, but th e reports involving married women license outside marriage, Webster dramatizes anew the problems of unmarried sex the dangers to innocent maidens and virile wi dows included lost dowries, stolen livings, and the burden of bastardy. Thus, reviewing the consistent reporting of sex outside of marriage, I analyze how the playwright, Webster, centered the plot among the allegations of adultery and bastardy in this or charge presented to a court or magistrate in order to institu te (routine) criminal proceedings without formal indictment (now hist. ). Later: a statement in which a magistrate is informed that a named person has committed a d by the Crown in respect of a civil claim, in the form of a statement of the facts by the Attorney General, either ex officio or on the OED ). Bastardy was the type of case least likely to be overlooked and more likely to l ead to a presentment, as R.B. Outhwaite notes in The Rise and Fall of the English Ecclesiastical Courts (2006). In Courtship, Illegitimacy, and marriage in early modern England often to be found in chur ch court presentments, where individual whims and personal prejudices could influence 268 Ja cobean tragicomedy, Business. Titus Andronicus , where those allegations of adultery, bastardy and treason require a deadly sac rifice. Even more striking in this play, the legal brief, which summarizes the case for the solicitor, becomes the central document through which to read the play in its practice of libel as the foundation for a bastardy case. 261 90) here, a legal brief and all of the events , which surround it, to weave this story. Similarly, engagemen ts, murder attempts, illicit affairs, and financial gamesmanship all lead to a climactic center surrounding the bastardy trial. Though typically prepared as a tool before going to court, the legal brief is written by Sanitonella the law clerk and presented to Ariosto the advocate, and the contents of this libelous document later figure pro minently within the court proceedings. Sanitonella gives Ariosto a summary of the case against Romelio, based on the libelous statements provided by Leonora the client and the mother of Romelio. 262 The brief serves as the impetus, I argue, for unfolding and positioning the play as a way of reading the socio - political climate in regards to the issues of bastardy and adultery during the early ds to the scandal of bastardy, the intervention of the church courts, and the subtle and unsubtle machinations of the key characters. In legal jurisprudence, the brief sets out key evidence in preparation for court, and does the same for the audience in th e theatre. Not only does the brief itself operate as a site of an unlawful and illicit taint, but also each 261 A solicitor is one properly qualified and formally admitted to practise as a law - agent in any court; formerly, one practisin g in a court of equity, as distinguished from an attorney ( OED ) . 262 Consistent with the English court system, this Neopolitan locale likewise does not submit the legal brief to the court. In contrast, American jurisprudence uses the legal brief in court. 269 brief functions as a thread, which connects my analysis, and intervenes with notions, of sexual reputation as a form of vengeance, professional ethics as a form of legal advocacy, precedent as dramatic and legal device, and the legal and physical vulnerabilities of the document. To appreciate the value of the brief, this analysis follows the movement of the br ief the preparation of the brief by Sanitonella the law clerk, its delivery to Ariosto the advocate, the use conspires with her maid, Winifred, to seek revenge against her son Romelio for his alleged murder of Contarino, her love interest; thus, she confesses to adultery and its resulting pregnancy. 263 In furtherance of this conspiracy, Leonora finds a willing partner in Sanitonella the law clerk who must engage an advocate to take this scurrilous cause to an ecclesiastical court. 264 Within this drama, Webster enacts the early modern concern about bastardy and its prolifer ation in the Italian city of Naples. 265 This chapter follows the trail of the libelous brief as it corrupts the ecclesiastical system of jurisprudence, exposes its weaknesses in protecting the courts from the taint of such defamatory evidence, and sets a pre cedent, or establishes a custom, in how to handle bastardy cases 263 Simon Morgan - ironically the impetus for this vengeance, Con who is in love with Ercole. 264 drunkenness, bastardy, fornication, and such, as Amy Lo uise Erickson notes, in Women and Property in Early Modern England (2002) (35). 265 Instead of the small shires in the Salisbury province, this city of Naples is more reflective of the larger Court of the Arches, Chancery, and the like, which also handled ec - 154) 270 of precedent as it merges, both dramatically and legally, in several ways: the appearance of the reputation as revenge, as well as considering how this bastardy and adultery case suggests a specific strategy for a resolution. Much as the record s for the bastardy cases included various unreliable evidence present in many of these cases. To complicate the reading of , my use of the dissertation has been perhaps broader than merely proofs that are presented before the courts, Titus Andronicus , the bond in The Merchant of Venice Volpone . 266 I am also considering evidence in a more general sense when revealed to litigants, attorneys, court employees, servants of the crown, etc. These documents, like the legal brief here in Law Case , and the indictment and the warrant in Richard III , become important vehicles to supply different entities (i.e. courts, churches, theatres, prisons, and people within the early modern community) with information many times, false information. Tho ugh the brief is used to inserts itself within the main action of this play. This analysis builds upon the work of several scholars who have considered John W . Most importantly, while 266 or the production of material objects, that is given in a legal investigation, to establish the fact or poin t in OED 271 The White Devil about women initiating as well as disrupting court procedures. In th ese dramas, she suggests that Webster The White Devil , Judge Law and Representation in Early Modern Drama dramatic representation of the law and the depiction of a fictive experience, which women have in - space and audience [demonstrate] how trac es - 207). 267 While advancing the argument of Tainted Proofs , I argue in this chapter that written evidence in the form of a solitary brief in off ers a critique of the ecclesiastical courts and its litigants. I contend that practicing libel corrupts the ecclesiastical system, and exposes its weaknesses when it comes to the evidence upon which cases are litigated and the litigants and litigators who bring these actions to the court. By illustration, this argument suggests that, in several key scenes, false evidence is produced, presented, and positioned as co operates as an 267 Where Mukherji emphasizes evidentiary and theatrical representation, David Gunby contributes wonderfully to the scholarship with a chapter The White Devil , The Duchess of Malfi and where he focuses at length on the structural distinctions of this play in the Words that Count: Essays on Early Modern Authorship in Honor of Macdonald P. Jackson (2004); in his chapter, Gunby (Boyd and Jackson 219). In one of his many observations on the play, he suggests that the third act often parallels involv ing Crispiano and his son Julio offers just such a parallel and the antagonist Romelio is reformulated as a The Jew of Malta (217 - 219). 272 instrument for chicanery in this play, Webster uses a woman, as he did in The White Devil , as a provocatively, compelling site of vengeance within the courtroom. Mo st importantly, I utilize three important moments to illustrate this argument. First, at 4.1, the vengeful Leonora colludes with Sanitonella the law clerk to hire Ariosto the solicitor to litigate her allegations of bastardy and adultery to disinherit her son Romelio. She claims that Romelio is a bastard nd, and forego inheritance rights to his sister, Jolenta. 268 This moment is particularly crucial in demonstrating how Leonora and Sanitonella use the libelous brief to distort the purpose of the legal process. Second, in dramatic fashion, Ariosto the solici tor destroys the suspected maligning legal brief. The attempt to eradicate materially the substance of the brief is dramatically striking. personal morals and pro This scene conveys the concerted effort to disrupt the legal process by using the brief in furtherance of petty vendettas. Third, the trial is actually conducted; though the br ief disappear s , its metaphorical presence and its defamatory substance are exposed along with several conspiracies, yet even more importantly the characters Contarino and Ercole and Sanitonella the law clerk discuss 268 273 Webster presents for the audience a moment to reflect upon the notion of legacy in relation to the effect of the brief on the theatrical and the legal profession within the seemingly benign framework of a play and its theatre. I will discuss the different precedent, as a stage property for future plays and as a legal instrument for future cases. After the conclusion of the case of Leonora versus Romelio , the play examines not merely the case, but this moment t heatrically, and perhaps legally, to consider the larger implications of the legal and ethical issues , which surround this ecclesiastical court proceeding. and de monstrate how this legal instrument exposes the illicit, vengeful, and unethical behavior, en the client Leonora and the different legal professionals from Sanitonella the law clerk and Ariosto the advocate to Contilupo the lawyer. FIRST SCENE: The Practicing of Libel Conspicuously, the opening of the scene at 4.1 places significant emphasis on the written evidence this legal brief. 269 Typically, this legal instrument was used for legal preparation for court. Yet, here in Act 4, Webster creates an elaborate subplot around the production, the presen tation, and the destruction of this brief. The playwright uses both Sanitonella, who produces 269 Collected Papers on English Legal History (2013). 274 the libelous brief, and Ariosto, who critiques the brief, to advance the intrigue surrounding Romelio and Leonora. Though the brief summarizes the case for the so licitor, Webster spends some time allowing the characters to reveal the legal brief, through description much as the Richard III . Clearly, a distinction exists between the indictment and the brief, for the brief summarizes the case and is prepared by solicitors for court, but an indictment is prepared by the court staff and is a charging instrument against an s have I laid, inductions dangerous, / By drunken prophecies, libels, and dreams, / To set my brother - 35). As Richard discloses, the practice of libel is a practice of inciting inte rnal familial strife. As a business practice, even The White Devil are accused as the culprits who conspire , note). 270 Again, here, in Law Case , it is the legal brief. Case serves my discussion of early modern evidence well. This drama supports my premise in Tainted Proofs that important legal documents, which are presented as proof in and around the seething rage with and an unwieldy revenge against her son, Romelio. Thus, there becomes no reasonable grounds to believe the truth of the brief as credible evidence. These standa rds, credibility and reliability, were the ear - marks for witness testimony (Macnair 168, 245), but 270 The White Devil . 275 written proofs were held to this requirement even more so, since people, like Leonora and Sanitonella, were fallible and hopefully their lies were palpable. Yet, in an age where writings were preferred (92), the brief in this drama presents a provocative twist on truth and transparency. Because briefs were always in writing, their truth and transparency were assumed. Later, common law jurisprudence became syn onymous with a rigid reliance on proof in written form. 271 Where in the English courts briefs were not admitted as evidence, in this drama the brief likewise is not presented in court but to the audience, during a portrayal of a lawyer - client consultation be fore the legal proceeding. Though Sanitonella the law and refuses to be seduced into this scheme. Using the brief, Leonora falsely declares her own adultery, t with an alternative lawyer, Contilupo, whose base character and ethics fit those of Sanitonella and to this Neopolitan court. The legal brief serves as a precedent in its unique presentation of an adultery - bastardy case brought by a woma n who lambasts her own sexual reputation. Such an disgraces the legal profession. This legal instrument emerges as evidence not before a courtroom, but before t he theatrical audience, which assesses its value as truth and weighs its effect on the later action. 271 es and succession of (Helgerson 76). Yet, here we see that ecclesiastical courts rely heavily upon their texts, like records of proceedings, li tigants, and the law. 276 I argue that in Act 4 the production, the presentation and the precedent, which surrounds bastardy and the efforts to thwart the distribution of truth with an earnest legal inquiry by Ariosto certain tacit prejudi ce against documentary evidence, since no one can be forced to give such evidence save of his own free will, whereby he shows that he harbours unfriendly feelings toward - 7). For the most part, only the advocate to her legal team. In an unassuming way, Leonora the plaintif f/client seeks representation motives and the production of libel through the legal brief in Act 4. Initially, I explain how the problems of the legal brief are played out in its presentation to and among these characters most of whom appear at 4.1 at a law office. 272 As she enters the office, Leonora is accompanied by the willing Winifred. Naturally, the charge of bastardy implicates the ecclesiastical courts a nd the raison 273 Webster presents a tragicomical exploration into the legal ety, where the practice of libel positions this Jacobean play as a provocative vehicle for investigation. 274 272 The action in 4.1 occurs in either a law office or court office. In the Dramatis Personae, Aristo is listed as an advocate, who pleads cases in court. Yet, later in the play, he will become a judge. 273 What is not true is false; Ergo, Libel bastard slips, and sinister actions imposed on his people, unlawful to be fathered on Gods VVord, his Law thereon either erring not in 274 See the exchange Book of Martyrs . 277 without implicating the final momen ts of Act 3, for 3.3 serves as an impetus to the action at 4.1. wh ich the audience understands this entire act, but especially this scene where her revenge is acted out in a legal setting. Here, this woman does not act out the physically, violent revenge that one The Duch ess of Malfi or The White Devil . In lawyers and the judges, and allowed to escalate in this familial war. Before examining the brief itself in this legal se tting, we should examine the vengeful motives, which will culminate later in the courts. Having worked her calculating maneuvers upon the waiting Winifred to win her participation in this contemptible conspiracy, Leonora makes an impassioned vow of vengean ce filled with all of her deeply - whom Leonora desires: I remember practice 278 I meditate upon. (3.3.339 - 344) arise , as she ironicaly Webster constantly reminds the audien ce of the comic genre with scenes like 4.1 with its less than cordial banter exchanged between Sanitonella and Ariosto, as we might find among legal professionals. Yet, the playwright demonstrates how easily his play teeters between comedy and tragedy when pathos found in revenge tragedies. With seemingly dark intentions, Leonora continues to ruminate upon her vendetta against Romelio, in this internal blood feud in an asi de at the end of Act 3: I was enjoined by the party ought that picture, Forty years since, ever when I was vexed I know not, but methinks upon the sudden It has furnished me with mischief, such a plot As n ever mother dreamt of. Here begins By loss at sea, and he has nothing left The law shall undo him. (3.3.344 - 354) 279 Though Romelio operated as the focal point of the play earlier, Leonora asserts her place of furnished mischief, and the unfathomable plot, which takes Leonora and Winifred to the law for ng. 275 bulk of his estate was sunk, as an opportune moment for devising social and financial ruin for him. This ruination is designed for public consumption. 276 Though Winif Privacy? It shall be given him Of poor ten arpents of land forty hours longer, Let th e world repute me an honest woman. (3.3.384 - 388) 275 Titus Andronicus playwright offers a different avenue for revenge than th e shedding of blood to save the child born of this illegitimacy as Aaron does in Titus . Romelio seeks to pass the child off as the offspring of his sister and one of her murder. 276 Appius & Virginia Revenge, Trauma Theory, and Titus Andronicus 280 Here, she offers the audience the rationale for going public in the court. Leonora cannot stomach suffering, his financial ruin, and social suicide quite public. 277 The Neopolitan Law Office Libel at 4.1 As we return our attention to 4.1, the following lighter exchange between Leonora and her legal representatives offers a way to read the underlying brie f, which is exhibited in the scene for inheritance. At first, Sanitonella the law clerk introduces Leonora to Ariosto the advocate: Sanitonella: -- Sir, this g entlewoman Entreats your counsel in an honest cause, Which, please you, sir this brief, my own poor labour, Will give you light of. [ He gives the brief to Ariosto ] Ariosto: Do you call this a brief? . What would they weigh if there were cheese wrapped in them, Or fig - dotes? Sanitonella: Joy come to you, you are merry. We call this but a brief in our office. The scope of 277 ic spaces of early modern trials (174 - 205). 281 Ariosto: Methinks you prate too much. I never coul d endure an honest cause Leonora: You trouble him. Ariosto [ studies the brief This sixty years, Yet in my practice never did shake hands With a cause so odio us. Sirrah, are you her knave? S anitonella: No , sir, I am a clerk. (4.1.7 - 22) for this exchange between Ariosto the advocate and Sanitonella the clerk, but also one, which I ponder for this dissert ation. In answering this question, it becomes necessary to define the brief, detailing its function, purpose, production, and its presentation here in the play, but also within those entities in which it might be presented in the larger society (e.g. court s, churches, prisons, etc.). By defining the brief within these terms, I find meaning not only for the play, but for this period. The brief is more than a stage property in this theatre and an exhibit in the court it is a cultural artifact, which merges th e courts, the stage and the early modern people. Let us now explore the ramifications of this unfolding scene for an understanding of the issues I raise in the preceding. Here, in the space of this law office, Ariosto cross - examines Sanitonella on his brie f. The advocate assumes the role of a wizened, legal scholar, and answers a question, this dialogue vividly mocks the brief as a piece of physical evidence, 282 seemingly light dialogue here, leads us to consider the content, socio - political implications, and veracity of its charges, which I will d iscuss in this chapter. I begin my analysis with the language , which connotes veracity. For instance, at the outset of this exchange, Sanitonella attests to the 278 that truthful. Also, Sanitonella While a brief may have legal authority, this authorit y does not guarantee the truth of the document itself. As a legal document, there exists an assumption of its truth. 279 Utilizing this assumption, 278 (1628) as Ernest Gilman notes in his Plague Writing in Early Mo dern England (105). 279 This brief has a life, character and history all of its own and its veracity may be vetted just as one might vet and Hut Rhetoric in Law and Early Modern Europe . 283 280 response also im plies that the audience is unconvinced. that is consumed with the dichotomy found in dishonesty and its opposite, honesty. Ironically, Ariosto responds by stating th Ariosto the advocate seems to imply that the law possesses an affinity with treachery and deceit. es to convince his honorable sister to proceed with the deceit of a false pregnancy so that she might hide his adultery with a young nun, Angiolella. Simultaneously, the pregnancy would convincingly win Jolenta the inheritance of both Contarino and Ercole, her aspiring love interests. Coveting their 280 Recall: The rule of the most blissed Father Saint Benedict patriarke of all munkes . by: Benedict, Saint, Abbot of Monte Cassino. Printed at Gant: By Ioos Dooms, [1632]: EEBO. This document sets out the rules for not just monks but nun. Specifically, the ecclesiastical rulebook is addressed to Evgenia Povlton and encourages a life of purity. By there is an absence of purity. Figure 23 The unfailthful wife, Woodcut, Nuremberg, 16th century: colour applied later. Reproduction copy: E.Fuchs, Illustrierte Sitten geschichte, Renaissance, Munich (A.Langen) 1909, after p. 216 . 284 Though initially eschewing this distastefu l proposition, Jolenta assents: since I have found the world So false t o m I will mother this child for you. (3.3.153 - 155) Yet, her agreement does not come without her own question posed to Romelio: Must I dissembl e dishonesty? You have divers Counterfeit hones Will take e x ceptions. I now must practice The art of a grea t - bellied woman, and go feign Their qualm s and swoonings. (3.3.166 - 169) lies with amassing vast amounts of wealth and displaying soul - sapping ambition. He willingly financial advantage. Almost mirroring the earlier moments when Romelio teaches Jolenta to practice deceit, this scene is consumed with Leonora teaching Winifred the practice of libel. Romelio foists honesty and its cousin, patience from his person. Ariosto the advocate counsels patience characteristics associated with the divine. Yet, finding no redeemi ng value in such traits, Romelio 285 his mother share their practice in deceit. While having no knowledge of the foregoing treachery of Romelio and Leonora, Ariost o detects dissimulation which emerges as the scene unfolds. bastardy ( 4.1.21). 281 Does this suggest that bastardy was a matter that may appear repugnant to this society? 282 For example, here in , Ariosto and Sanitonella engage in a repartee that becomes so impassioned, yet they never reveal to the audience th e scandalous nature of the brief, its unverifiable facts, nor its lewd circumstances. The source of this passion is incited character as a legal professional for h is role in this cause with this caustic inquiry: Why, you whoreson fogging rascal, Are there not whores enough for presentations, Oppressions of widows or young orphans, Wicked divorces, or your vicious cause O f plus quam satis , to content a woman, But you must find new stratagems, new purse - nets? (4.1.22 - 28) 283 281 There existed both Jacobean and Carolinian statute against the lewd behavior of women arising out of the bastardy cases (Walker 227). See Crime, Gender, and Social Order in Early Modern England by Garthine Walker. 282 The Duchess of Malfi (3.1.31 - 35). Yet, the insinuation of bastardy supersedes the resentment of wealth i n the lower classes. 283 Plus quam satis 286 Filled with ribaldry and gravitas, Webster aligns a serious matter of law that is, the veracity of the legal brief to criminality and deceit in a range While reacting to the contents of this legal cause, the characters also paint for the audience taste, touch, sight, smell an d hearing. For instance, using a deceptively simplistic interrogatory, Ariosto asks Sanitonella to pass the eye - earlier exchange contemplates the physical appearance of the brief and its substantiv e content. As exists in approximately eighty sheets of paper. This brief seems antithetical, for it figures more as more, Ario even tells stories, possibly unsupported (i.e. false) against someone in thi s case, Romelio ( OED ). demands that the audience should receive the information contained therein with great skepticism. Even further, the substance (and mysterious contents) of the brief alludes to another - emphasis on the length of the the ultimate salesman, a convincing mouth - piece in his own right, Sanitonella the law clerk insists 287 284 Apparently, even Sanitonel la intimates that the real story lies on the periphery not in the main pages of the brief. As the drama continues to play upon the encouraging Ariosto to read swiftly the margins rather than the entire matter so that Leonora the plaintiff - client, Ariosto the advocate, and Sanitonella the clerk may speedily conclude this business of the brief. Emphasizing the greedy cunning of the legal practitioner, Sanitonella appears - 57). He fits his The Anatomie of the Abuses: containing, a discouerie, or briefe summarie of such notable vices and imperfections, as now raigne in many countreyes of the world (1583) (14, 16). legal practitioner honest and forthright. In this vein, Quintilian describes the acceptable lawyer ok XII, ch 1, 23 - 26). 285 Ariosto embodies most, if not all, of these qualities. - 31). Suspicious and ou traged, Ariosto insults cunning unscrupulous rogue, a villa OED ). Essentially, Ariosto, without having knowledge of 284 Many of the early modern briefs had comments by the jurists within its margins. 285 The Professions in Early Modern England, 1450 - 1800 (148). 288 nes, an important moment arrives where Ariosto must determine whether the brief that summarizes this - 21). Considering the potential for knavery, Ariosto all the while leaving the contents cloaked in mystery for the audience. If the l consternation arises more from considering the brief as mere fluff, but as compromising the very social structure of this early modern society. If a false brief might t opple a man, a woman, and thereby a family, might it also topple a community of people with implications for the larger society? Arguably, the false brief reflects the potential vulnerabilities to the ecclesiastical system of jurisprudence whose jurisdicti on might succumb to its critics; these critics, common lawyers, believed that the church courts were obsolete and limited in their early modern utility (Macnair 26 - 27). 286 Ariosto seeks to preserve the utility of the courts, specifically the church courts. A no t the practice of libel? Does his expressed outrage with Sanito nella and Leonora sufficiently distance 287 286 The church courts ultimately was abolished (Adair 177 - 178). 287 editor René Weis calls a draft of the brief (4.1.73). I discus s this tearing of the brief later in the chapter. 289 at 4.1, along with Sanitonella and later Contilupo, is susceptible to claims of inappropriate professional ethics. 288 The Business of Libel The practicing of libel before this early modern audience is significant, as the drama confronts the problematic nature of written evidence, whose truth or falsity must not be assumed. Such an assumption would destabilize the system o f jurisprudence. It is possible that the audience is familiar with the practicing of libel in the theatres, as one finds such scenarios played out in - 29). 289 be trusted nei ther here in Antonio, the Duke of Malfi at 5.3 and 5.5 in The Duchess of Malfi . For instance, Bosola reads the of adultery in The White Devil . Here again , Webster displays another version of an internal blood - feud and exposes the taint to this early modern audience. 288 The Professions in Early Modern England, 1450 - 1800 (147 - 149). Though his book, The Origins of Adversary Criminal Trial , does not raise e thics, Langbein upon high - 289 See Raymond Jo Pamphlets and Pamphleteering in Early Modern Britain (187). In her Women as Translators in Early Modern England e staging of Greek drama (73). In my previous research, I audience in her text (136). 290 In addition to the issues of trust, the scene, o f course, demonstrates quite simply the problems with libel. The brief is filled with statements , which are false. 290 Though Ariosto 3.8), the potential political and legal implications in early modern society were numerous. 291 brief mention of libel and slander barely prepares the audience for the trial where the practice of libel sits directly at the center of an ecclesiastical proceeding on bastardy and adultery. Even in The Duchess of Malfi , libel receives limited attention, deemed: court calumny, A pestilent air, which princes palaces Are seldom purged of. (3.1.49 - 51) 292 In this brief exchange, accusations of theft, treachery, and attempted murder surround this statement in this tragedy. Such accusations of libel weigh heavily in me re dialogue, yet here in The , the brief represents an actual site of libel within this consultation between Leonora and her legal advisors not within this Christian court, which handled bastardy cases. Still, this brief circulates around t he court outside its doors, within its corridors, and amongst its 290 See Le digest des briefs originals et des choses concernan ts eux [microform] / compose per Simon Theloall . London: Printed by the assigns of Richard and Edward Atkins ... for Thomas Bassett et al, 1687. See also The common and piepowder courts of Southampton, 1426 - 1483 , ed. Tom Olding; with an introduction by Tom Olding and Penny Tucker. Southampton, England: The University of Southampton; Cambridge, MA: The Ames Foundation, [2011]. 291 There evolved a body of words, which became actionable, implicating criminal action, some infectious disease, and professional corr uption as discussed in Defamation and sexual slander in early modern England: the church courts at York /by J.A. Sharpe (7 - 8). 292 See the note in The Duchess of Malfi edited by Leah Marcus at 3.1.49. 291 litigants. Webster raises this issue of bastardy in a society not unfamiliar with the gravity of such ury earlier. 293 Even in this royal cause, allegations of forgery abounded, where papal briefs were viewed with skepticism. 294 In a decidedly scandalous fashion, this bastardy brief reaches its pinnacle in the scene in 4.2, when it is placed before an ecclesia stical court. In open court, Contilupo the lawyer reveals - 151). Exposed publicly as a bast ard, Romelio is now a social pariah. In her testimony, Leonora explains that Romelio was begotten from a sexual tryst, where she was unfaithful to her husband while he was unguarded Yet, why do I A many things that are essential parts Of greatness are buy by - slips, and are fathered On the wrong parties. (4.2.302 - 306) possibility of his illegitimacy in this cynical speech. Having fathered his own bastard, it is no surprise to the audience that Romelio takes a more open v iew of bastardy. The jurists are astounded 293 In , these briefs were addressed in the Divorce of Catherine of Aragon (1485). 294 Both Princesses Mary and Elizabeth (later Queens of England) faced the stigma of bastardy. 292 that Leonora would implicate herself in the sin of adultery in this bastardy case, for the result is to herself and expose them both to public shame. Commending her disclosure, Crispiano the lawyer from Seville explains: There was a main matter of conscience. How many ills spring from adultery! First, the supreme law, that is violated Nobility oft stained with bast ardy, Inheritance of land falsely possessed, The husband scorned, wife shamed, and babes unblessed. (4.2.430 - 434) 295 bastardy, usually meant that the parish would have the financial burden of caring for the child (Walker 109, 227 - 228). Yet, here where Romelio is in the prime of his youth and able to care for himself, such concerns are not mentioned. 296 Still, the stigma remains not only for Leonora, but Romelio as well. I ronically, Romelio cares not for the stigma he brings to Jolenta earlier in the play when he asks her to slander her own name and her sexual reputation, and here Leonora heartily embraces the downfall awaiting her son Romelio with such allegations of basta rdy and adultery. Both characters are thus tainted by their lack of a moral compass. In spite of the shame and the stigma, Leonora surrenders her most valuable asset her sexual reputation as a tool to 295 o f Aragon in Henry VIII . 296 Merry Wiesner - Hanks observes that men were rarely prosecuted for sexual crimes in Christianity and Sexuality in the Early Modern World by Merry Wiesner - Hanks (2014). 293 fell her son in the most powerful tool that he possesse s his financial and social status. Leonora is willing to accept her own exile and disgrace in this cynical ploy to ruin her son. Extending his conversation of bastardy and adultery, Webster implicates ecclesiastical courts in other dramas as well. In the a The White Devil, allegations of adultery abound, where Vittoria is tried for adultery in a Christian court, and Bracciano accuses Isabella of the same. 297 Yet, Vittoria is convicted and sentenced to a house of allegations of adultery and bastardy. 298 tery is scandalized and quite often the women emerge as the reputed source of the scandal. This dramatic depiction flies in the face of evidence , which shows that ninety percent of the defamation cases with a female plaintiff in the ecclesiastical courts a from 1590 - 1690 (Sharpe 15). Here, in a strange contortion of typial practice, a woman defames herself, and uses her own agency to launch a powerful, sexual warfare against a man. Some scholars, when women brought cases before the court (153). 299 297 Love, lust, and license in early modern England: illicit sex and the nobility (2008) (20 - 23, 204). See also An act for suppressing the detestable sins of incest, adultery and fornication (1650): EEBO. 298 See The White Devil by Mr. Genest from his account for the English stage (4). 299 In Ritual and Conflict: The Social Relations of Childbirth in Early Modern England , Adrian Wilson observes: See case in12 goi ng to Quarter Sessions is suggested by the numbers for three Essex parishes (12/144 cases pooled). Constant with this picture, the Wiltshire Sessions saw about seven cases per year (85 cases in 12 sampled years), the Hertfordshire Sessions about two to thr ee cases per year (107 cases in 42 years). Most of these figures came from various dates between 1560 and 1646, though those from Hertfordshire may be biased cy and 294 that one of this (207). 300 Here, offering perhaps a common early modern theme, Webster offers a play, which contemplates bastardy, adultery and libel, with an i dentifiably gendered perspective. consequences bastardy comes to its fruition in . Interestingly in this drama, those who commit adultery, like Romelio, find imperfect success in hiding their illicit relationships, as in impregnating a nun, convincing his sister to accept the baby as her own bastard, o fornication, like Jolenta, and adultery, like Leonora, are castigated and ostracized, yet share the Vittoria in The White Devil and the Duchess in The Duchess of Malfi . Webster continues where Shakespeare has left off with King Lear and Titus Andronicus . In this drama, Webster crafts what happens when claims of bastardy are removed from the darkened shadows of private dealings, and are brought into the light of public view. 301 6 - 7. bastardy cases per year went to Quarter Sessions (79 cases in eight years). This is consistent with the suggested rate of one case in 12; if we assume for the No rth Riding at this time 3,000 births per year and an illegitimacy ratio of 4 percent, there would have been 120 bastard births per year there at this time. 300 There is evidence of property cases when their inheritance is a question before the court, as evid ence in Jordan Law in Shakespeare . 301 J.A. Sharpe discusses how the Star Chamber developed the distinction between libel and slander, and the Defamation and Sexual Slander in Early M odern England (1980) (4 - decrease in the number of cases reflected a changing attitude about bastardy as noted in Bastardy & Comparative History by Peter Laslett, Kar la Oosterveen and Richard M. Smith (1980) (85); Richard Adair notes the church courts Courtship, Illegitimacy, Marriage in Early Modern England (1996) (153 - 154); Garthine Walker notes the different types of libels from their use in mocking rhymes to cases involving physical violence, verbal and sexual misconduct in Crime, Gender, and Social Order in Early Modern England (91, 100, 107); Why Bastard? Wherefore the Base?: Representing Bastardy in Early Modern England by James P. Saeger (1996). 295 for adultery, and men, like Romelio must deal with the state of their bastardy and its consequences. The law would divest each of the benefits of their social and financial station. 302 Yet, Webster crafts a drama where the practice of libel would seem to interfere with such dire consequences. 303 In this next section, I investigate the ethical and moral implications, which flow from the figure of Romelio , who operates as a masterful manipulator , but the women around him, like his mother Leonora and his sister Jolenta provide an i dentifiable contrast. Within this presentation of the legal brief and these jurists, I consider their individual ethical concerns or the absence thereof. In these moments, Webster provides a critique of the legal profession by legal professionals on this d ramatic stage. In essence, these jurists respond to an effort of self - evaluation from those within the field of law, rather than from those outside of the law. SECOND SCENE: Legal Ethics: Avoiding the Appearance of Impropriety As women carefully guarded their sexual reputations, lawyers had cause to care for their much sullied reputations as well. In The Anatomie of the Abuses: containing, 302 Martin Ingram discourses upon libel cases in Church Courts, Sex and Marriage in England (1990) (48, 56, 117, 401 - 403). 303 William Prynne, a Presbyterian lawyer, along with Henry Burton, clergyman, and John Bastwi ck, physician, were found guilty of seditious libel in June 1637 by the Court of the Star Chamber based on their scurrilous derision of be harb Church and State in Early Modern England, 1509 - 1640 (Oxford UP 1990) (185 - 188); in most years, almost half the cases were related to sex (fornication, adultery and incest) in with the exception o f the 1590s, in Scotland particularly, as noted in Limits of Empire: European Imperial Formations Early Modern World History (Ashgate Publishing 2013) by Tonio Andrade and William Reger; The Rule of Women in Early Modern Europe by Anne J. Cruze and Mihoko Suzuki (University of Illinois Press 2009); Defining Community in Early Modern Europe by Miacheal Halvorson and Karen Spierling (2008); Women in Power in the Early Modern Drama by Theodora Jankowski (University of Illinois Press 1992). 296 a discouerie, or briefe summarie of s uch notable vices and imperfections, as now raigne in many countreyes of the world - (123). an and Spanish ones. He does not depict lawyers, who avoid questions of ethics, propriety, and professionalism but these jurists confront these issues of openly. Among his other Jacobean dramas, Webster offers the stage a depiction of several improprietous lawyers. For example, as a dismal portent from her tyrannical brother, the Duchess Vittoria, accused of adultery, is encumbered with a speech - - piec The White Devil (3.2.37). Now here, in the latter portion of 4.1, when Webster presents the outrage over this libelous brief in through the cha racter of Ariosto the advocate, the socio - religious which the matter of the brief reaches its apex is in the display of violence. This material physical muti lation at once moral and legal 304 Specifically, this stage violence is committed upon the document mpt to eviscerate the material of the brief, Webster offers this early modern audience a rarely performed law office consultation, 304 discussion of physical mutilation and stage violence in Shakespeare and the Materiality of Performance Titus Andronicus . 297 which has gone seriously awry. As we learn from the beginning of 4.1, Sanitonella the law clerk has interviewed Leonora the p otential client, expended energies in drafting a summary of the case, set up a consultation with Ariosto the advocate, and taken a fee. Yet, the lawyer, here Ariosto, has become apoplectic over the nature of the brief. His response questions the legal capa bilities of the law clerk, Sanitonella, and the sanity of the client, Leonora. Though its contents have remained with notions of honor, Ariosto wages a war agai nst the beleaguered reputation of lawyers and their status Henry VI, part II - seasoned attorney with over thirty years of practice possibly reject a legal fee from a wealthy client? The wise Ariosto The devil take such fees, Has writ false Latin. Sirrah Ignoramus, - 34) Here, Ariosto refuses to sully himself with the appearance of impropriety by not merely rejecting this case 305 Though Ariosto the ad vocate refuses the fee, Webster offers an alternative solution to this problem of representation with a less scrupulous lawyer, Contilupo 305 The Origins of Adversa ry Criminal Trials . Here, Langbein discusses evidential problems associated with the appearance of impropriety and jury issues. 298 ethical polar opposites, Ariosto and Contilupo, the play injects a serious debate about early modern legal ethics as well. 306 While investigating the physicality of this document, this part of the chapter focuses upon the violence committed against the legal brief here at 4.1: for abusing that word, By virtue of the clergy. [ Tears up the brief ] (4.1.40 - 41) . te prophet rent the new garment of Jeroboam, servant to Solomon. The renting of this new garment was symbolic and represented the tearing of the nation of Israel, which was promised to David and his progeny. Yet, 307 to forestall or to destroy the libel. Ariosto tries to somehow eradicate the taint that has been intro duced into the legal system, thereby into the culture, by this violent act. This violence upon the brief may be analogized, more than the rending of garments in biblical times, but with the violence , which occurs in the play particularly, the attempted mur der of Contarino at 3.2.108 where Romelio stabs him to secure the land that Contarino willed to his sister Jolenta. 308 Here in financial gain. 306 Recall some of the legal training manuals suggest not just filing papers as in the Chancery, but in manual on ethics. See manu The Perfect Instruction of An Attorney in the (1623), The Practick Part of the Law - 168). 307 See biblical verses at 1 Kings 11:26 - 43 in 1611 King James Bible Facsimile . 308 299 For some dramatic representations, the violence upon legal papers represents a this brief takes the audience back to an earlier play. 309 Desperate for justice, his destruction of the legal papers, here petitions, is profound in that this former advocate for the law now surrenders to revenge. While Leonora surrenders to revenge against Romelio for his acts of treach ery, instead of forsaking the law, Leonora uses the law for her vengeance. Instead of abandoning the law, like tragedy, yet the comic nature of Case prohibits a bloody result. This tragicomedy looks for a way to corre ct, modify, or reconcile the apparent wrongs committed. It possesses neither the hopeless tone nor the subplot of The Spanish Tragedy . Here, as in Volpone , the jurists attempt to co rrect the foregoing malfeasance by the characters by the end of the drama. Revealing the Revilers Continuing with our explorations of the inflections of treachery and violence as they shape us further explore some aspects of and tears up the brief, according to the stage direction (4.1.40 - and studying t 309 This moment in The Spanish Tragedy by Thomas Kyd. In this early tragedy, the petitioners present legal papers themselves in the form his son Horatio and aba ndoning the legal process, Hieronimo tears up the papers and offers a heart - wrenching speech about the Hieronimo tears the brief in The Spanish Tragedy in his Revenge Tragedy Family & State in Early Modern Drama: Economics of Vengeance (59). 300 matter implicates the morality, the legal ethics, and the state, where this legal matter sits squarely within the jurisdiction of the church courts, in both states I 310 Throughout the play, characters, like Capuchin, a friar of the Order of St. Francis ( OED Ercole (3.3.334). Even her e, before Romelio is defamed at the trial, these men, Capuchin and Ercole: The guilt of this lies in Romelio. And as I hear, to second this good contract, He has got a nun with child. Capuchin: There are crimes That either must make work for speedy repentance, Or for the devil. Ercole: I have much compassion on him, For sin and shame are ever tied together With Gordian knots, of such a strong thread spun, 310 John Webster was born in 1578 in London ( The Duchess of Malfi and Other Plays , Oxford Edition) . In Political Culture and Cultural Politics in Early Modern Essays: Presented to David Underdown occasionally heard quarter sessions cases there, as he did in 1607 when ... whom Hendborowe had identified as the paternal culpr it in a bastardy case Amussen, Kishlansky 143). Hieronimo responds. This text also cites an olde r reference: Bastardy and its Comparative History by Laslett, mentions depositions for a bastardy case with allegations of adultery and rape. 301 They cannot without violence be undone. (2.4.38 - 45) Du ring this scene, the characters place blame upon Romelio. As early as Act 2, the audience is told that Romelio has had an illicit relationship with a young nun, Angiolella, and created an illegitimate child. Because this indiscretion is no small crime, Ca - 41). Even th en, he is fearful of the revelation, not his immortal soul. Though Ercole acknowledges the sin and shame , which accompany this crime, as we know from earlier discussion, Romelio has flung his own sin and shame upon Jolenta. Is Ercole correct that Romelio c hands, it arrives at the expense of both Ercole and Contarino themselves. 311 rious one. While the brief appears on the stage at 4.1, in the remaining scenes the document, by reference and by implication, possesses a life beyond its material existence on the stage. Its libelous influence ticism of the audience effects the reception of the remaining action. Here, Aristo as an advocate, and later a judge, is a character who understands the impact of such a charge of libel. Still, later Leonora is found to have brought an invidious charge ag ainst Romelio, where she alleges that he is a bastard, and she confesses to adultery. 312 In spite of earlier allegations against his fornication, attempted murder, and other crimes, Romelio 311 312 Bastardy cases, which were based upon some level of deceit, became problematic most especially for the man as Keith Thomas observes in his book The Ends of Life: Roads to Fulfillment in Early Modern England . This deceit includes not only the libelous doc during this era of sexual promiscuity by either the man or the woman (168). 302 exudes confidence with all the signs, to the audience, of a deeply f ractured human being. He (4.2.55 - 56). Webster highlights the significance of bringing false charges, in a libelous brief by 313 Though Leonora and Winifred actually know that the charges against Romelio are false, Ariosto, Sanitonella and Contilupo lack first - hand knowledge, but have reason to believe that the brief is indeed libelous. After hav ing confessed to Leonora in the murder of Contarino, Romelio still seems undaunted by Romelio [to Contarino]: My lord, I am so strengthened in my innocence For any the least shadow of a crime world, That she can charge me with, here do I make it My humble suit, only this hour and place May give it as full hearing, and as free And unrestrainted a sentence. (4.2.78 - 84) Through his characters and their response, Webster implicates a society that is perhaps apathetic to libelous, legal briefs. He continues the theme in the tradition of the unknowing cuckolds, like Canterbury Tales . Though falsely, Leonora confesses 313 in ordinary criminal cases and treason cases in The Origins of Adversary Criminal Trial (99). 303 at court that she had indeed cuck olded her husband, and her son Romelio stands as the fruit and the proof of the adultery. 314 the perceived dishonest cause literally and figuratively. Based on this behavi or, I read an ethical obligation of this advocate, where he distances himself from the unethical behavior the perceived libelous, fraudulent cause to which Sanitonella, Leonora and Winifred have introduced him. Beyond his apparent legal and ethical duty, A riosto has reprimanded both Sanitonella and Leonora specifically admonishes: Cry ye mercy, do I so? And as I take it, you do very little remember Either woma nhood, or Christianity. Why do ye meddle Or a winder itch, wears that spacious ink - horn All a vacation only to cure tetters, And his penknife to weed corns from the splay toes 314 See also Houseservants in early modern England by R.C. Richardson. In particular, he notes that sixteenth century Ludlow saw many maidservant bastardy cases (Ri chardson 204). 304 Of the right worshipful of the office? (4.1.45 - 54) e 315 In language permeated by metaphors of disease, Ariosto 316 With this pronounced response to the brie f, Ariosto reveals a belief that there exists a sanctity in the faith and in the law, which must be protected from dishonorable behavior. Unable to contain himself, Ariosto the advocate does not save either Sanitonella the clerk nor Leonora from this remo nstrance. Still, it is clear for which individual, Ariosto has more contempt: Of a physician than a lawyer. The melancholy humour flows in your face; Your painting cannot hide it. Such vile suits Disgrace our courts, and these make honest lawyers Your younger men that have good conscience 315 The Origins of Adversary Criminal Trial (99 - 100). 316 - cuckold Ariosto berates her. 305 Wear such large nightcaps. Go, old woman, go pray For lunacy, or else the devil himself of thee. May like cause - 67) admonishment that is directed more squarely at Leonora the plaintiff. Vehe mently, Ariosto attacks her character as lacking morality and sanity, and advises that she seek medical rather than legal counsel. In an adept evaluation, Ariosto has uncovered not only the suspected libelous brief but - 15). One might say the same of Leono , is the cause of perverted justice. In addition, Ariosto blames Leonora f or Sanitonella, this young advice is not purely legal, but ecclesiastical. His reproof is clear nces of this vile suit, which implicates not only her mind and 317 317 In his b ook, Courtship, Illegitimacy, and Marriage in Early Modern England , Richard modern period (27). Adair discusses th e stigma of illegitimacy as well (40) and addresses a framework for bastardy during the period in chapter 2. See further discussion of bastardy and Elizabethan literature and culture in Michael Putting History to the Question: Power, Politics, and Society in English Renaissance Drama (2000). 306 In startling fashion, this scene shifts from examining the brief, as discussed in the earlier part of this c hapter, to destroying the brief. Because Aristo tears up the brief, Sanitonella introduces - 318 The editor Readily, to secure representation for Leonora, this clerk, who has read the law himself, shifts his persuasive efforts from Ariosto, an advocate who refuses to associate with this dishonest cause, to Contilupo, who immediately attaches himself to this fou - 76). The use the language of the uses the phrase in this legal matter. Its foulness lies not in its status as a copy, but in its fraudulent and libelous state. By its very language, it seems that the veracity of this legal brief has no value, yet Sanitonella immediately assigns not only the case, but the brief a value double Contilupo: Is not this Sanitonella: 318 in Early Modern Playhouse Manuscripts and the Editing of Shakespeare (98). 307 Give it a d ash, sir. (4.1.81 - 84) ly, Sanitonella admits to Contilupo that this matter is not honest, as he purported to Ariosto at the outset of 4.1. Yet, this time the advocate, Contilupo, finds no onder, - 95). His assessment of the case after having reviewed the brief is captured in the following: And you shall go unto a peaceful grave, Discharged of such guilt as would have lain Howling for e ver at your wounded heart, And rose with you to Judgment. (4.2.103 - 106) compiled record s of its cases, and the litigants took their notes as well. 319 The records of the ecclesiastical causes become relevant where, in this case, the papers on which such an action is based are bastardy and adultery. The language that the advocates use within 4.1 is filled with 319 See also Three civ ilian notebooks, 1580 - 1640 / edited for the Selden Society by R.H. Helmholz. London: Selden Society, 2011. These notebooks are from three ecclesiastical lawyers. 308 - 108). Ironically, these words are spoken when both Sanitonella and Contilu and the brief is entirely libelous. In spite of this sham, Sanitonella speaks so fondly of the Day of Judgment, as if he cares not for the consequences in his own day of Reckoning. Yet, after Ariosto ouste d the brief, the client Leonora, and the clerk Sanitonella from his presence, Sanitonella reserves his own measure of disdain for Ariosto and praise for Contilupo: That I could not think of this virtuous gentleman - rubber! W hy, this was wont to give young clerks half fees, To help him to clients. (4.1.90 - 93) new advocate willingly accepts the brief, and pays him his true worth for his own diligence in securing Leonora the wealthy client. Weighing the Reputation of Notably, the irony in this drama is that although Romelio is accused of bastardy, he is spared the legal charges for having fathered his own i llegitimate heir. However, his affair with consequences of his own immorality, according to religious tenets and moral demands of the time. At the outset of the play, Romelio lists all of the crooked and deceitful behavior in which untoward 309 women participate so that he might embolden Winifred, the waiting woman, to disall ow such behavior in Jolenta, which will impair her usefulness in an advantageous marriage: Look, as you love your life, you have an eye Upon your mistress. I do henceforth bar her All visitants. I do hear there are bawds abroad, That bring cut - works, and m antoons, and convey letters To such young gentlewomen, and there are others That deal in corn - cutting, and fortune - telling. Let none of these come at her, on your life. (1.2.158 - 164) Romelio ascribes each of these behaviors to those illicit acts, which ge ntlewomen allow their charges to commit. Yet, his commitment to safeguard his sister Jolenta from such illicit behavior seems temporal, half - hearted and opportunistic at best. Emphasizing his point, Romelio inquires of Winifred: I have heard Strange juggl ing tricks have been conveyed to a woman In a pudding. You are apprehensive? (1.2.171 - 173). 310 ises that Winifred will protect Jolenta from bastardy since Winifred had succumbed to its temptations in her youth. Yet, his logic is unclear. vengeance at law against her son Ro melio, the charge of bastardy has a poetic justice to it. This justice becomes difficult to resist in its delicious sense of satisfaction: Romelio may be punished as a bastard, though not guilty, and may be unpunished for fathering a bastard, though guilty . While participating in a legal proceeding, which is arguably a challenge for all, the When Women Go to Court, The Devil is Full of Business , implies a difference. Has she been ill - treated because Figure 24 Frontispiece for The Devil's Law Case by Webster, 1623, Paper, The New York Public Library, EEBO STC / 944:17. 311 of her gender? Or, do the allegations of adultery and bastardy serve as the bases for the problems, 320 - the full title of the play. In her posi - significant onus on her behavior in these scenes than he does Sanitonella the law clerk. By contriving her place of battle, Leonora embraces the unique role, which she must play at court: O thou canst conceive Where I first will have thee make a promise To keep my counsel, and then I will employ thee In such a subtle combination, Which will require, to make the practice fit, Four devils, five advocat - 395) - going to law at 4.2. Some of the onus placed upon Leonora may be read as judgment in her desire 320 In Negotiating Power in Early Modern Society: Order, Hierarchy and Subordination in Britain and Ireland edited by Michael J. Braddick, John Walter, the editors cite the book Church Courts, Sex, and Marriage (1987). See footnote 20 on page 256 - 257. The editors also discuss how the women were examined at the quarter sessions in Somerset, particular ly on the question of paternity. The editors suggest that fatherhood was an economic and social construction, which was not tied to any physical proof (52). Yet, in many ways, this project exploits this lack ef. Though Webster does not emphasis notions of class within these particular scenes, this dramatist, like Shakespeare, offers a narrative of high drama for royals, merchants, and those among the peerage. Yet, the problem of bastardy extended across the cl asses. In Adolescence and Youth in Early Modern England (Yale UP 1994), Ben - offenders involved in bastardy cases and were prosecuted by the ecclesiastical courts; liaisons between fellow serva nts were quite common in all sex cases - 201). Hence, the discussion of adultery, fornication, and bastardy, as noted in the introduction of this chapter, were relevant issues, particularly for single women including widows like Leonora, who is a woman of wealth. Her status of wealth and privilege does not save her from the repercussions of her allegations against Romelio in this early modern church court. 312 for a young man, Contarino, wh publishes this play almost two decades after the death of Elizabeth I: The Virgin Queen. This maiden no longer sits on the throne through nature, she has been dethroned. She has been succeed ed by man. In this drama, women, like Leonora, who flout their maidenhoods will likewise less from the court. In this final part of the chapter, I consider how Sanit precedent for this dramatic plot in the figure of Leonora and her efforts to taint her own sexual reputation as a form of non - bloody vengeance. In addition, I analyze the brief as a form of precedent in the case of L eonora versus Romelio as a way to investigate the role of precedent during this period. THIRD SCENE: The Place of Precedent The final part of this chapter takes up the question of how the libelous brief, the f raudulent bastardy case, and the play might serve as a precedent in this early modern society. 321 By the seventeenth century, precedent books, which recorded previous cases, were growing and gaining 321 towards a precedent - based procedure, in which relatively abstract and technical concept of inherent credibility through specific methods of reasoning combined with In An Introduction to English History , Baker observes modern period, courts began to look at old precedents in a new way and to belittle the authority of those in which precedents; cases could not be dismissed as out of date, or as aberrations, or as mere exchanges of opinions. The result of these changes was that the formal, deliberate judicial opinion was becoming a distinct source of law, to be distinguished from passing opinion The Century of Revolution, 1603 - 1714 (60 - 64). 313 Collected Papers in English Legal History . Courts used such precedent to decide future cases. The subject of precedent is notable on the stage as well. Across several dramas, Shakespeare comments on this issue of precedent. Resp onding to Cardinal Wolsey, Henry VIII advises the archbishop of the requirement for precedent to act as a sovereign for the benefit of his subjects in Henry VIII : Things done without example in their issue Of this commission? I believe not any. We must not rend our subjects from our laws And stick them in our will (1.2.90 - 94). In addition, at court in The Merchant of Venice , Portia insists the precedent necessary to prevent later errors: there is no power in Ven ice Can alter a decree established: And many an error by the same example Will rush into the state: it cannot be. (4.1.215 - 218) . While in The White Devil Law Case , Webster takes this concept much further. This case is unprecedented in that Leonora goes to court to impugn her own sexual reputation. Sh e confesses to adultery, and claims that her 314 son a bastard. She is not called to court by others. Through her own agency, Leonora determines to go to court for vengeance against her son and for the love of Contarino. As a result of this litigation, the pla y calls into question the efficacy of distinguishing between the legitimate and the illegitimate child. Like the precedent books, Webster amasses a body of work, which speaks to adultery, bastardy, and legitimacy. For instance, at 4.2, there are several re ferences to 322 These references incorporate a more extensive discussion about how the legal brief functions in the early modern judicial and the dramatic process. Actually, Webster uses the word uggests a need to consider how prior moments, plays, and cases might be instructive commentary. Specifically, I shall identify and explain each one of these moments, as I elaborate on the argument that this play makes for or against the notion of precedent in its early modern practices. This discussion will include how the notion of precedent changed, as the realm shifts from the reign of the Tudors like Henry VIII and Elizabeth I to the Stuarts, like James I, and maybe even Charles I. 323 At his peak during t his Jacobean period, Webster creates a drama , which implicates not just precedent, but the rules of evidence in its introduction of the brief and those of the theatre in its presentation of the brief, particularly with allegations of libel in a bastardy ca se. This bother with the brief in does echo a similar battle of briefs that is, papal briefs, during the reign of Henry VIII. With his Queen Catherine, there were different allegations, where the king insisted that Catherine had actual ly consummated her marriage with 322 - 110). Corinna that the sixteenth century culture placed 323 Tudor Queenship: The Reigns of Mary and Elizabeth (2010) edited by Anna Whitelock and A manuscripts, which list precedents like that for drawing leases and cases of trespass, slander, promises, etc. (167 - 168). 315 his older brother Arthur, before his death. Yet, the papal briefs authorized the marriage between Henry and Catherine and legitimized any children that would come from this second marriage. In this divorce between Catherine of Aragon and Henry VIII, Henry VIII, through the Archbishop of Canterbury alleged that the papal briefs were libelous; on these grounds, the King of England was able to secure his divorce, though not sanctioned by the Roman Catholic Church. Even for Anne Boleyn, allegations abounded involving adultery, incest, and all manner of offenses, which 32). 324 Not only did the papal briefs provide a problem for this socie ty in the matter of divorces, briefs served an important role in other matters civil and ecclesiastical concerns for litigants and jurists alike. 325 In addition to illustrating a law office client pre - trial interview between Leonora and her legal team, Webst er presents at 4.2 what is considered for some scholars, like Coleman, the pièce de la résistance the examination of Leonora before these jurists. 326 This moment contemplates 324 Persecution, Plague and Fire: Fugitive Histories of the Stage in Early Modern England (2011), where she cites The School of Abuse (1579) by Stephen Gosson who argues that playhouses are special places of in the theatre (Gosson 31 - 32). 325 Consider in 1653 and the Brief for the Defendant in 1657 provided by J.H. Baker. 326 cularly in The White Devil and Case , some scholars like David Coleman have focused on this reoccurring space in its use of similar dramatic techniques to his tragedies, and the development of his villain Romelio. I, however, see the moments of trial preparation in technical specimen, I read this moment where a duel occurs between Contarino (who stands in for Ercole) and Romelio, as significant in the evolution of the legal brief: in Act 3, Leonora swears her vengeance to destroy dramatic and structural analysis, which does not emphasize legal evidence, I find that the significance of these scenes, like the climactic Act 5, may be found even more profound in their relation to the foregoing scenes like the preparation and delivery of the brief and the exposure of the libel in the subsequent trial scene. Namely, it is striking how this tragicomedy seems to struggle with attempts at violent and legal warfare against its comedic nature. The attempts at bloodletting are repeated and ine ffectual nature prohibits a blood y result. The case presented in Act 4 functions as precedent, much like legal cases in the 316 - d with lies against her own son. In her cross - examination by Crispiano, a civil lawyer from Seville, Leonora attempts to justify her delayed confession: Crispiano: Bethink yourself, this cannot choose but savour e practiced upon most devilishly. How happed, Gentlewoman, you revealed this no sooner? Leonora: While my husband lived, my lord, I durst not. Crispiano: I should rather ask you, why you reveal it now? Leonora: Because, my lord, I loathed that such a sin S hould lie smothered with me in my grave; my penitence, Though to my shame, prefers the revealing of it Crispiano: Your penitence? seventeenth century. Here in the play, the case serves as both a model and a warning to safeguard individuals against libelous legal documents, thereby elevating thi s play to a form of dramatic legal counsel that is deeply invested in the social welfare of its audience. Thus, I argue that by reading the play through the legal brief, a larger picture develops in understanding the dramatic, the political, and the legal work that performs for this era. There is a very interesting resource, which has been mentioned in researching this project: In any case , single women and widows were more likely than married women to have connections with people in ot her parts of the metropolis, and ... 49 Hitchcock and Black, Settlement and Bastardy Examinations, cases 23, 42, 49, 52, 58.. See page 159 in Imagining Early Modern London: Perceptions and Portrayals of the City from Stowe to Strype, 1598 - 1720 by JF Merrit Skull Beneath the Skin: The Achievement of John Webster (1986). 317 Might not your penitence have been as hearty, Though it had never summoned to the court Such a confl ux of people? Leonora: Indeed I might have confessed it privately Is nothing without satisfaction. (4.2.253 - 268) In spite of the aggressive examination by Crispiano, Leonora responds to this inquiry adeptly he 327 The sincerity of her penitence also appears well - Othello (1606). As part of this revenge, Romelio, the antagonist of the play, is wrongfully accused, yet i t is difficult to have wholehearted sympathies for either Leonora or Romelio in this moment. At most, in this scene, sympathy for Leonora vacillates between desiring retribution against Romelio and forging alliance with his true victims in the play, like h is sister, Jolenta, the pregnant nun Angiolella, and the men in her love triangle Ercole and Contarino. 327 In Order and Disorder in Early Modern England , Anthony F tightening - up is reflected in the escalating number of cases of fornication, adultery, incontinence and, above all, illegitimacy, ... and early seventeenth centuries and to compare this early modern period with the late thirteenth and early fourteenth centuries, which ... 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 1613 and 1616 (41). See also th Family Life and Illicit Love in Earlier Generations (1977) at page 102. Note Between Worlds: A Study of the Plays of John Webster reconciliation with notions of social order as necessary to human life in and Appius and Virginia (10). 318 Still, it becomes difficult to consider the predicament of Romelio without considering that of his mother Leonora. The consequences of taking Romelio t o court cannot be ignored, for not only has Leonora taken this attempt at revenge, but she has engaged third - parties to suborn her malicious plot. In this way, her vengeance has peaked beyond Vittoria or the Duchess of Malfi. Though not as bloody as Tamora in Titus Andronicus , the plot has an unprecedented clever intrigue, which arguably complicates the character of Leonora in a way that is quite distinguished from these other femme fatales. Precedent is Designed for the Stage Much like trials in the court room, plays are meant to be displayed on the stage so that they might have the most impact for an audience, and achieve their most hopeful and beneficial end Ars Poetica - 100). This public sphere of the theatre to which Webster refers has the greatest impact on the society. 328 For instance, within the drama, the playwright allows Contilupo a voice to connect this case concerning bastardy and adultery to the actual legal annals for the courts In our succeeding annals, and deserves 328 the projection of the nobleman that The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (14). 3 19 Rather a spacious public theatre Than a pent court for audience; it shall teach All ladies the right path to rectify their issue. (4.1.97 - 101) This case of Leonora versus Romelio significant not merely for the Italian city that it portrays, but for the nation of England as well. At this time, England is a nation forging alliances with great nations and colonizing still others; the face of this sovereign state must yield a steady helm without haphazard management of its courts, churches, and prisons, or discontented, riotous members of this society. For these reasons, the legal and ethical concerns voiced by the jurists during this play should raise a concern not merely for those who practice libeling, but for tho se charged with the task of prohibiting libel and those who pay the cost when such prohibitions become unsuccessful. Webster could not have chosen a better venue than that of the early modern stage to act out the problems, which have been raised in its ecc lesiastical courts. Thus, it seems that the need for correction and edification has a gendered tone, particularly toward women and their offspring, yet the male species may also be forewarned by these spossession and usurpation especially their property. Leonora the case, and possibly the legal brief as well, are : so rare, so altoge ther void of precedent, 320 That I do chall enge all the spacious volumes Of the w hole civil law to show the like. (4.2.95 - 97) y upon, and persuade the court? Contilupo suggests that this case, larly The Duchess of Malfi letter in Titus Andronicus . On what proofs, laws, or judgments does the brief lie? A viable answer would be that Webster provides the audience with the substantive contents of the brief through several characters, including Ariosto and Contilupo, in 4.1 an d an open court at 4.2, where the audience actually beholds Leonora and .2.162). - 273). While the testimony, the audience learns in more detail the apparent contents of the legal brief. In the Oxford Editio n of , the editor René Weis describes Contilupo dramatis personnae . As we look at the legal document upon which this case rests, we are compelled to look at the figure who brings the document before th e court, who looks for the court to sanction its contents, and to give the document legitimacy as it 321 would divest Romelio of his legitimacy. 329 drama? In one reading, Contilupo becomes significant in so f ar as he assents to, or conspires with Sanitonella and Leonora to place this matter before the court while indifferent to its veracity. jurist, fall into the back of the clerk, Sanitonella, who drafted it and the mouth - piece who attests to its accuracy? Again, Contilupo becomes significant for the main action of the play occurs in Act 4, and as the advocate, he is a part of that action. Indeed, he is a part of the reason that Leonora even makes it before the Ultimately, he is the reason that Leono A Strange and Confused Practice highli ghts what kind of precedent this case will actually serve. This reference allows the audience to imagine all manner of cases, laws, and statutes that we use to guide valid decision - making in the future: 329 Recall primogeniture and bastard y are at issue in Titus . Yet, Shakespeare revisits bastardy with a focus upon King Lear . At 1.2, Edmund in soliloquy expounds upon his illegitimate status: Wherefore should I / Stand in the plague of custom, and permit / The curiosity of nations to deprive me, / For that I am some twelve or fourteen moonshines / Lag of a brother? Why bastard? wherefore base? / When my dimensions are as well compact, / My mind as his birth, Edmund seeks to divest h is legitimate brother Edgar of his property rights with a libelous paper, a letter. Like Leonora, Edmund attempts to take away legal entitlement in a vengeful subplot. Yet, unlike Lear or Titus, Webster provides in this tragicomedy a bastardy trial and Leo an identifiable site of the law, a Christian court. 322 Ercole: You have judged today A most confused practic e that takes end In as bloody a trial; and we may observe By these great persons, and their indirect Proceedings shadowed in a veil of state, Mountains are deformed heaps, swelled up aloft, Vales wholesomer, though lower, and trod on oft. Sanitonella: Well , I will put up my papers, And send them to France for a precedent, That they may not say yet, but for one strange law - suit, We come somewhat near them. (4.2.604 - 613) Though the case may be strange on the isle of Britain, even more significantly is the la nguage that While admiring the comic relief that the trial provides, it is important not to underestimate this bastardy case, its use of precedent, and the exposure of libel that moves this case out of the ordinary 323 A most strange suit Either time past, or present, for a woman To publish her own dishonor voluntarily, Here that law is broke, For though our civil law makes difference assionate nature Makes them equal. (4.2.232 - 235, 243 - 246) unchasteness. Mayhaps, she has broken an unspoken tradition about women and allegations of bastardy. Eve 330 In The Duchess of Malfi , Ferdinand expresses a similar sentiment toward the illegitimate children of the Duchess: Call them your children; For though our nati onal law distinguish bastards 330 In Courtship, Illegitimacy, and Marriage in Early Modern England (1996), Richard Adair discusses a study performed in the Essex chapel of Terling in the late sixteenth century and early seventeenth century where there began a surge in illegitimacy from 1598 to 1605 (11). He acknowledges that as difficult as it was for church courts presentments were sometimes made, usually through malicious disinformation from individuals working off an old Bishop Still's visitation 1594; and, The "Smale booke" of the clerk of the peac e for Somerset 1593 - 5 / edited by Derek Shorrocks. Taunton, Somerset: Somerset Record Society, 1998. See: Lower ecclesiastical jurisdiction in late - medieval England: the courts of the Dean and Chapter of Lincoln, 1336 - 1349, and the Deanery of Wisbech, 1485 - 1484 / edited by L.R. Poos. Oxford and New York: Oxford UP, 2001 324 From true legitimat e issue, compassionate nature Makes them all equal. (4.1.35 - 37) eject the illegitimate. It is possible that Crispiano speaks for a contingent of individuals who believe that they should be indistinguishable after all even their queens, Mary I and Elizabeth I, had at one even questions the evidence used in the bastardy proceeding whether used in ecclesiastical courts, or other common law courts. 331 tragicomedy, though his more well - k nown pieces, The Duchess of Malfi and The White Devil , receive much of the accolades. Here, Webster provides a drama though less bloody than The Duchess of Malfi and the outcome of the trial less troubling than in The White Devil , which clearly shines as a provocative drama that speaks to the legal and religious climate in early modern society. This drama brilliantly calls attention to not only theatrical but legal practices. Webster creates a drama in that is austere and rare in its bo ld presentation of a dire domestic 331 For instance, in Equity in English Renaissance Literature: Thomas More and Edmund Spenser (Taylor & Francis 2006), Andrew J. Majeske observes that precedent was more likely to be strictly followed in the common law courts, as far back as the twelfth century (32, 145). Mukherji also notes the common law shift toward precedent based procedure (220). In Theaters of Intention: Drama and the Law in Early Modern England , Luke Wilson also referenc es precedent in his monograph (45). There are several references to different types of precedent in Baker and Milsom Sources of English Legal History: Private Law to 1750 . In addition, there are a few bastardy cases (4, 79, 696). There are also a few refer Shakespeare and the Law: A Conversation among Disciplines and Professions edited by Bradin Cormack, Martha C. Nussbaum, Richard Strier (137, 161, 222, 246). In Judges and Judging in the History of Common Law: From Antiquity to Moder n Times (Cambridge UP 2012), Ian the notion of precedent (51 - Bifurcation and the bench: the influence of the jury - Cormack, et al is especially helpful as it discusses precedent and written evidence in early modern courts. Brand precedent, carped now here, now there as it were running by the way; but such as has never been controverted, Profess ors of the Law: Barristers and English Legal Culture in the Eighteenth Century by David Lemmings and its discussion of precedent; consider the references to potential early modern legal treatises. 325 dilemma resolved in the once serene, but now salacious setting of the ecclesiastical courts of Naples. Conclusion Within these ecclesiastical jurisdictions, the courts faced a unique challenge as they adjudicate not secul ar laws, but laws, which prohibited sin. How would they judge sin? These early modern church courts developed detailed procedures to adjudicate sin. In the matter of adultery and bastardy cases, the litigants and the facts varied. Many of the cases were di smissed. Other cases were handled summarily because very few proceeded to where a judge who had to make a determination based upon the witnesses called for a hearing. If cases proceeded to judgment, and then the court could proceed in different ways depending upon whether the defendant was found guilty. For instance, the court would make the person swear an oath, gather a number of witnesses that would testify most serious penalty excommunication. Actually, there were several different types of excommunication included, like suspens ion, an admonition, and penance -- most of which vari ed in degrees of harshness (Ingram 48 - Likewise, this critique of the legal process, ethics, and this litigious early modern society where to read the play as simply literary or simply legal seems quite implausible. Though common for the period, the playwright expounds upon important concepts to reiterate legal ethics and mo ral rules to the betterment of this early modern society. Through several key moments in the play, I argue that the legal brief operates as a corruptible, vulnerable and precedential site in both theatrical and legal terms. With false 326 allegations of bastar - dishonorable behavior. In this way, she leads several jurists, including Sanitonella the law clerk, Contilupo the lawyer, and Aristo the advocate and her waiting woman Winifred into this mad, and strangely self - incriminating method of maligning the legal process. Yet, along the way, her defamatory behavior and stratagems propel Ariosto th e advocate to avoid the appearance of impropriety, destroy the libelous legal brief, chasten the conspirators, and reject the scurrilous case. Undaunted, Leonora takes the case to court with Contilupo and her ruse is ultimately discovered. Still, the case of Leonora versus Romelio provides what Sanitonella refers to as without having been accused, falsely claims to have dishonored her husband and birthed an ill egitimate son, Romelio. She defames her own sexual reputation. The case is also precedential in that it was able to expose the libel and find truth. Even more significant, the courtroom oration by Crispiano the lawyer that this early modern society is left - Leonora, to rest in the truth of determining legitimacy. In essence, such distinctions may be for naught. By highlighting the effective way in which this libelous brief exposes treachery, including but not limited to bastardy, attempted murder, and fraud, this fraudulent document places not merely one singular case in jeopardy, but an entire society. If the play serves as precedent both legally and dramatically, early modern life improves, for it benefits from the social experiment that Webster creates on the stage. Finding a unique way of representing both the church and the law on the dramatic stage, Webster instructs this Jacobean society on commonplace matters like adultery and bastardy for safeguarding evidence and preventing deception. Though the scholarship 327 on this particular play is not abundant, in recent years more scholars, like Subha Mukherji, have discussed the distinguishing appeal of this play. 332 Refreshingly, the play finds a way to discuss these socio - familial issues, which face this early modern society, and frames some of the concerns not only in societal terms, but in legal ones as well. 332 igious Objects in The White Devil Studies in English Literature 1500 - 1900 , 47.2 (2007): 473 - English Literary Renaissance , 35.2 (2005) and Aspasia Gender Destabilization in , Cahiers Elisabéthains: Late Medieval and Renaissance Studies , 63 (2003 Apr): 71 - 88. 328 EPILOGUE: TAINTED PROOFS In Tainted Proofs: Staging Written Evidence in Early Modern Drama , I explore ho w the evolution of written evidence on the stage provides a cultural commentary on early modern England . This book analyzes how the evolving early modern society involving legal, cultural and religious institutions shifts more prominently into the demand f or proofs. Because this call exceeds the previous reliance upon oral proofs, this society seeks written proofs in many aspects of early modern life. Within the field of law, an identifiable requirement for written evidence emerged during the period, embody ing itself in case law, treatises, and statutes. As this field of law grew reliant upon written evidence, a problematic tension arose, which illustrated that the supposed sanctity of written proofs was compromised. In a strikingly similar way, each of the plays in this dissertation present, demand, and critique different written proofs , which function as both legal instruments and as stage properties, as dramatized by the playwrights William Shakespeare, Ben Jonson, and John Webster. In each of my chapters, I emphasize a specific written piece of evidence whether a letter in Titus Andronicus , warrant and indictment in Richard III , bond in The Merchant of Venice , wills in Volpone , or a legal brief in . They corroborate how a demand for the authenticity and veracity of written proofs not only shift within this period, but how different types of proofs illustrate this evolution of the nature and use of written evidence out of the medieval and into the early modern. Even further, the staging o f evidence within these dramas also progress es within the period, as they move from the 1594 to 1623. This progression of the drama reveals the dangers presented by written evidence unfold as both legal and moral commentary to highlight the peril and prom ote the need for further safeguards. 329 Arguably, there materializes a transition in legal practices and moral attitudes toward authentic e vidence between the two periods. From the chronological progression of the plays, I identify a change in perspective as the Tudor plays Titus Andronicus and Richard III focus on the subject - sovereignty relationship and its complicated dynamics, but the Stuart plays The Merchant of Venice , Volpone , and emphasize the state of the individual, his or her r ights, and property. Where the sovereign serves as the source of judgment in the Tudor plays, there unfolds a strong ecclesiastical tenor to the Stuart plays, which almost supplants the sovereign. The importance of morality also seems to parallel the conce rn with legality. Within these Tudor dramas, the plots impugn the nature of sovereignty, its ineffectual rule, and participation in unlawful acts with its disreputable agents as in Titus Andronicus and Richard III . However, during the Stuart dramas, illega lity, including criminality, persists, and arguably runs amuck; yet, what arises in this latter era transforms into a higher ideal, like morality, which operates as the barometer to human behavior, as evidenced in discussions of mercy in The Merchant of Ve nice , punishment in Volpone , and judgment in . Overall, this dissertation demonstrates how these Tudor and Stuart realms change and evolve in terms of legal, social, cultural and religious attitudes and practices in using written eviden ce . Following the various uses of written evidence on the stage and in the courts, we can map these larger movements . F or instance, from the anxieties about criminality and treason, the concerns of the sovereign move away from an investigation, which seems grounded in its distrusts deviate from the concerns of the sovereignty and the state to the individual uses of contracts, will formation, and legitimacy of heirs , these chapters expose the pr oblematic nature of written proofs, which the traditional subject - sovereign relationship cannot sufficiently address, but the exploration of individual rights begin to 330 answer with some remedies through legal safeguards. In the evolution of written evidence , this transfer from oral proofs to written materializes in a seminal moments with the passage of the Statute of Wills in 1540 and progresses well into the seventeenth century with the promulgation of the Statute of Frauds in 1677. As Henry VIII yields the power of probate to his subjects, a pivotal moment materializes, where individual rights establish a stronghold, which burgeons into other rights, other fields of law like contracts, and other institutions like the church. Over the course of the dissert ation, I focus on tainted proofs in their diverse manifestations across several dramas. As much as the era emphasized the necessity for the written legal document to prove a matter, like the criminal charges against the accused or the appropriate remedy in a civil case, it also exposed the need for further safeguards to protect written evidence from manipulation, illegality, and illicitness . This need for safeguards seems to gain urgency from the Tudor through as authentic, truthful and legal. Nevertheless, there arises a moment in each play where the the matter of the tainted document, as in Jonson . There are other moments, where the Titus Andronicus . Still, further, the drama offer moments where the proof is exhibited in its corrupted indictment in Richard III . These dramas provide an important aspect of the cultural commentary on this increasing desire to have more authentic evidence, in a written, material form. For example, the presentation Volpone raise this discussion of authentic evidence. Likewise, in Richard III , the Scriv ener also 331 by the multiple versions, which possess the potential for manipulation. In addition, the courts offered a similar discourse in its discussion of the courts and by what method. This legal conversation parallels the theatrical one. For instance, Sir Edward Coke articulated a requirement to have the original document produced to prove a general issue to a j ury in (1611). He insisted that it was dangerous not to produce the original to the jury (Macnair 115 - 117). 333 A sense of danger emanates from these dramas as well. Both dramas and the cases convey this jeopardy. As we examine th e nature of written evidence, inevitably we lea rn about the stage and it props. The drama calls attention to these stage props, demonstrates their dynamic physicality, highlights their problematic condition, and illustrates their complicated relationship w ith their creators, handlers, and destroyers. 334 These handheld paper props function as not mere references during the drama, but they enter and exit the stage in a solitary condition at times, duplicated states at others, but in these dramas they occur in d ifferent forms from the legal brief in Case , multiple wills in Volpone , letters and petitions in Titus Andronicus , indictments and warrants in Richard III , to various documentary props in The Merchant of Venice . As the written evidence evol ves, the court sys tem and social mores change at this time as well. The courts no longer wanted to rely on witness testimony alone. Coke found witness the Rutla nd Case (1604), he stated that all contract agreements should be in writing, which served 333 While the rule hails from Roman law, the early modern period embraced the law more than the medie val common law. This early modern era was concerned with how to prove the original document as well (Macnair 115 - 117) 334 The Spanish Tragedy and papers. 332 like adultery and bastardy cases. These cases, tried in ecclesiastical courts, were not only rooted in social mores, but religious ones as well. The church courts were tasked with trying sin, like fornication, and Webster addressed this issue in a way, which supersedes Titus Andronicus . Where Aaron and Tamora are condemned at the end of the drama for their crimes against the Roman Empire, Shakespeare handles their il licit immerses this Jacobean play in tensions surrounding adultery and bastardy played out not merely s false allegations of bastardy and adultery against Romelio in court. The early modern courts were tasked with the adjudicating the law surrounding bastardy and adultery and all of the falsity and illicitness, which surrounds them. Even further, the commu nity was tasked with caring for those children who many times were not claimed by their fathers no matter what their station in life. As the period shifts from Elizabethan to Stuart, an identifiable change of trajectory in the demand for legal safeguards a nd more reliable evidence evolves, as we consider each written piece of evidence. While the change does not develop in one single year, a cumulative shift arises over Titus And ronicus , summary trial. Within the trial, Saturninus affords neither Quintus and Martius, nor Titus an opportunity to examine the evidence. Hence, one of the safeg uards, which took place during this 333 executions. With a similarly violent reputation, the Court of the Star Chamber developed as the locale for such violent executions and torture. Eventually, the Star Chamber was dismantled as a place for the administration of law and justice. In The Merchant of Venice i Rutland demands written contracts, it is not until the Statute of Frauds (1677) that the Parliament passes a law , and provides specific conditions where agreements become legally mandated for enforcement. Approximately sixty - five years after the passage of the Statute of Wills of 1540, the difficulties, which surround the will persist. Volpone seems to respon d to these persistent problems created by the statute. Yet, A Briefe Treatise of Testaments and Last Willes (1590) , emerge to encourage more rules and more witnesses in the process of will formation, and decrease some of t Cases advances as a safeguard an increased use of legal precedent from case law. During this era, we see a growing emphasis in the law courts on consistent use of precedent rather than its earlier, intermittent reliance. demonstrate the shift not only from the medieval to the early modern period, but an identifiable one withi n the period from the Tudor to the Stuart era. The written evidence, both legal and material, follow a path, which reveals the problematic nature of proofs, as it moves from the subject - sovereign dynamic with its investment in power, security of the realm, and disaffected subjects to a more individual dynamic with its engagement in the expanding nature of civil liberties, property rights and legitimacy. Within this dissertation, the analysis of the drama offers an intersecting study of the law, the courts, the church, and the people of this era. The shift occurs 334 across several boundaries, yet within the drama my examination suggests a revealing understanding of the nature of evidence and its emergence as an early modern phenomenon. Here, within the sixteenth and the seventeenth centuries, written evidence transforms how we read early modern culture. 335 APPENDIX 336 GLOSSARY OF LEGAL TERMS Appeal: This appellate process, the proceeding in error, was eliminated for an appeal, in favor of a procedure, which gradually involved more considerations of equity, fairness, and the entire record of the trial court or tribunal (Baker 154 - 171). consider ation; an action to recover damages for breach or non - performance of such OED ). Attorney General: The attorney - general, as a trustee of the public interest, brought such Francis Bacon was attorney general from 1613 - 1617. Sir Edward Coke held the office from 1594 - 1606, and Henry Hobert from 1606 - 1613. Bond: A deed, by which A (known as the obligor ) binds himself, his heirs, executors, or assigns to pay a certain sum of mon ey to B (known as the obligee ), or his heirs, etc. A may bind himself to this payment absolutely and unconditionally, in which case the deed is known as a single or simple bond ( simplex obligatio ) ( OED ). Circumstantial Evidence: Circumstantial evidence inc Circumstances were thus the incidents of an event or particularities that accompanies an - 69). capable of being presented as true or valid; having a OED ). consisteth in the series and succession of judicial acts f orm time to time which have been consensual agreements as the word grew to inc lude by 1600. In its modern sense, the notion of contract encompasses two ideals: the right of the performance of the obligation and the wrong in the breach of the contract (Baker 360 - 361, 368 - 371). Deed: A deed is an instrument in writing (which for this purpose includes printing or other legible representation of words on parchment or paper), purporting to effect some legal disposition, and sealed and delivered by the disposing party or parties. Signature to a deed is not generally required by English law , but is practically universal; and in most jurisdictions outside England where English law or legal forms prevail, signature has been substituted for or made equivalent to sealing. Delivery (q.v.) is now a moribund 337 formality. Contracts of most kinds, as w ell as dispositions of property inter vivos , may be made by deed, and in common practice are often so made ( OED ). Duress: Duress is when a person has been found to have his or her want of ability or freedom of will restrained. Swinburne discussed the prohibitions in the law of England against duress (140). In addition, Baker discussed duress, incapacity (infancy), suspicion, or tampering af ter execution as several ways to invalidate a deed (369). Equity: The quality of being equal or fair; fairness, impartiality; even - handed dealing. The Latin æquitas was somewhat influenced in meaning by being adopted as the ordinary rendering of Greek (see epiky n. ), which meant reasonableness and moderation in the exercise of one's rights, and the disposition to avoid insisting on them too rigorously. An approach to this sense is found in many of the earlier English examples. The recourse to gene ral principles of justice (the naturalis æquitas of Roman jurists) to correct or supplement the provisions of the law. equity of a statute : the construction of a statute according to its reason and spirit, so as to make it apply to cases for which it does not expressly provide ( OED ). testimony, the language of documents, or the production of material objects, that is given in a legal investigation, to establish the fact OED ). (1594) and (Ross 106). Henry VIII marriage of Henry VIII and Anne Boleyn. The act required all citizens to swear the oath of succession. Violations of this act would trigger the Act of Treason, where one c ould be found guilty of high treason, which resulted in drawing, quartering or hanging or misprision , which involved life imprisonment (Kelly, Karlin & Wegemer 73 - 74). en accusation of one or more persons of a crime or misdemeanor, preferred to, and presented as preferred to the Grand Jury, before it has been by them either found a true bill, or ignored ( OED ). court or magistrate in order to institute (routine) criminal proceedings without formal indictment (now hist . ). Later: a statement in which a magistrate is informed that a named 338 form of a statement of the facts by the Attorney General, either ex officio or on the report OED ). Jurisdiction: The litigants in the Court of Common Pleas had a higher burden; they were required to show proof of a subsequent promise (Barret 61). Particularly for bonds, Bench evolved as the standard bearer, modeling efficiency, innovation, and preeminence. ominion were essentially incontrovertible. At times, this Court heard non - criminal matters, like contracts, where liberty might be taken. In other jurisdictions like ecclesiastical, the courts handled sexual defamation cases, like bastardy, whoredom, cuckoldry, pimping, and adultery (Kahn & Hutson 126 - 142). The drunkenness (Erickson 35). Jurist: A jurist means one who practices law, like a lawyer, or a judge ( OED ). Law - giver: A lawgiver is one who gives, i.e. promulgates or makes, the law or a code, like a legislator. Several references include figures biblical, Lord and Judah, legal, legislators, and historical, Greek figure Minos ( OED ). Legal Brief: In general, a legal brief would contain instructions for conducting a case in court, summaries of witness statements and pleadings (i.e. legal statement of the case ). While traditionally the brief could also request advice (i.e. an opinion) or provide a draft of a pleading, the legal document offers a way to frame the entire argument for a case; it effectively guides the advocate in his representation of a client. Op inions were usually written at the foot of the legal brief. Legacies: Legacies are a sum of money, or articles, given to another by will (i.e. bequests) ( OED - 326). Legatees: Heirs are also refer Litigant: A person engaged in a lawsuit or dispute ( OED ). Malum in se OED ). Some crimes were categorized as such. t means hence, he was a legal fiction, as defined in an Etymological Dictionary of Modern English by Ernest Weekley (1427). Masters: Masters, using the Chancery Court as an example, were a part of the large staff of Others dispatched litigations. Some, like the master of the rolls, kept the records of documents authenticated in the Chanc ery (e.g. patent rolls, close rolls, and treaty rolls) (Baker 115). 339 Ordinary: The ordinary was a representative of the bishop. For instance, an ordinary was supposed to be in attendance at every gaol (or jail) delivery of clerks convicted in a criminal mat ter (Baker 586). Parol Evidence Rule: The parol evidence rule prohibited the use of any oral agreements promised prior to the written contract, but not included in the document. For instance, in the Countess of Rutland v Earl of Rutland (1604), Lord Chief Justice Edward Coke emphasized that every contract or agreement should be controlled by writing to avoid for this rule is the assumption that any important part of the agreement would have been included in the contract (A.W. Simpson 96, 599 - 601). Pleading: A pleading is a formal written statement in a civil case, which sets forth the cause of action or the d efense ( OED ). Plus quam satis Precedent: A judicial decision , which constitutes an authoritative example or rule for subsequent analogous cases; a form of a document , which has been found valid or useful in the past and can be copied or adapted. In English law the system of precedent is comparatively rigid; the general principle is that a court is bound by its own previous decisions and by those of a court above it in the hierarchy of courts. In other legal syste ms, the validity of a previous decision may be reconsidered by a court ( OED ). Prerogative Courts: Prerogative courts, like the Star Chamber, derived their authority directly nder the Tudors, the Star Chamber was used against subjects who had too much power to be adjudicated before the common law courts. Under the Stuarts, the Star Chamber was used to enforce economic regulations on property rights, which would not have been ap proved by either the common law courts or Parliament. In 1641, prerogative courts, like the Star Chamber and the High Commission, were abolished (Hill 28, 53, 66, 109). in churchwarden or other parish authority to the bishop or archdeacon at his vi ( OED ). Primogeniture: The law of inheritance changed to primogeniture, which involved inheritance by the first born to the exclusion of his brothers (Baker 306). Redress: Redress is reparation or compensation for a wrong or consequent loss ( OED ). Remedy: A remedy is a means of legal redress ( OED ). 340 Solicitor: A solicitor is one properly qualified and formally admitted to practise as a law - agent in any court; formerly, one practising in a court of equity, as distinguished from an attorney (OED). The Star Chamber: The Court of the Star Chamber, named for the gilded stars on the ceiling, council. It dealt with state affairs as well as petitions for justice. Duri ng the chancellorship of Thomas Wolsey (1515 - increased dramatically. However, the court did not keep separate records from the Privy Council until 1540. The meetings in the Star Chamber became secret on matters of government policy and administration. During the sixteenth century, the court of the Star Chamber handled civil matters, mainly real property, but upon the complaint of its litigants, the court heard issues riot, unlawful assembly, perjury, forgery, for cible entry, or some other form of oppression. The court was also an extraordinary or supplementary court of law, particularly for cases with criminal intent no distinction was made between civil and criminal matters, as it pertained to procedure. In the s eventeenth century, its jurisdiction was only appellate (Baker 136 - 137). Statute of Frauds of 1670: The Statute of Frauds required that contracts must be in writing, which could not be performed in one year and contracts where one party served as a surety transactions concerning land should be in writing, but it also provided that in actions upon parol contracts whereof there was no written memorandum no damagers were to be reco vered beyond the stated amount. Ultimately, however, the statute required contracts in writing where: a promise by an executor to answer for damages out of his own estate, a promise to answer for the debt, default or miscarriage of another (a guarantee), a n agreement in consideration of marriage, a contract for the sale of land or any interest therein, and any agreement , which was not to be performed within one year. It also provided that no contract for the sale of goods for more than 10 should be unless t he buyer accepted part of the goods and actually received them, or gave something in earnest to bind the payment or in part payment, or there was a writing (Baker 396 - 397). Statute of Uses of 1535: Predating the Statute of Wills: T he Statute of Uses requir ed written proofs for interests in land in 1535 (Moffat, Bean & Probert 39). However, there was such an outcry against this piece of legislation that the subsequent Statute of Wills was promulgated. Statute of Wills of 1540: The Statute of Wills, 32 Henry 8 c 1 (1540), passed by Parliament and accepted by Henry VIII, allowed land to be bequeathed by will for the first time. The these property issues (Gray 178 - 179). Summa ry Trial: A summary trial was an abbreviated proceeding and became less typical in the late sixteenth century (Bellamy 158 - 159). 341 who remains primarily liable; on e who makes himself liable for the default or miscarriage of another, or for the performance of some act on his part (e.g. payment of a debt, OED ). 3). Testator: The testator was the person who made the will for his or her property. Tudor doctrine of consideration: The Tudor doctrine of consideration involved circumstances assumpsit for no nfeasance when he had paid for something Within the Tudor period, the notion of Without consideration, a treatise intention by random words and ludicrous expressions, and from thence there would be a manifest inlet to perjury, because nothing were m ore easy than to turn the kindness of body, authorizing those to whom it is addressed to per OED ). 342 BIBLIOGRAPHY 343 BIBLIOGRAPHY Alford, Stephen. The Watchers: A Secret History of the Reign of Elizabeth I . 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