The Art of Law in Shakespeare 9781509905478, 9781509905508, 9781509905492

Table of contents :
Preface
Acknowledgements
Contents
List Of Illustrations
Introduction
1
"Fie, painted rhetoric!" Common Law, Satire and the Language of the Beast
I. Oratory, Empire and Common Law
II. Rhetoric, Method and the English Lawyer
III. Our English Martiall: John Davies of the Middle Temple
IV. Love"s Labour"s Lost, the Inns of Court and the Sweet Smoke of Rhetoric
2
Princes Set Upon Stages: Macbeth, Treason and the Theatre of Law
I. Compassing or Imagining Regicide
II. Of Such Horror, and Monstrous Nature: The Juridical Enactment of Betrayal
III. Royal Succession as Theatre of the Whole World
IV. Treason and the King"s Two Bodies
3
The Winter"s Tale: an Art Lawful as Eating
I. Law, Literature and Genealogy
II. Horticulture, Transformation and the Artifice of Law
III. The Nature of Law
IV. Inheritance, Gender and the Common Law Tradition
V. The Arts of Portraiture and Politics
4
Cymbeline: Empire, Nationhood and the Jacobean Aeneid
I. Some Footsteps in the Law
II. A Law Inscribed upon the Heart
III. Postnati. Calvin"s Case and the Journey of Jacobean Law
IV. The Divine Purpose, Nature and the Equivocal Image
V. The Nationalist Ends of Myth
5
The Tempest: The Island of Law in Jacobean England
I. Cannibals, Colonies and the Brave New World
II. Utopia and the Legal Imagination
III. Enchanted Islands of Common Law
Afterword
Bibliography
Index
9781509905478_The Art of Law in Shakespeare, Bib.pdf
Bibliography

Citation preview

THE ART OF LAW IN SHAKESPEARE Through an examination of five plays by Shakespeare, Paul Raffield analyses the contiguous development of common law and poetic drama during the first decade of Jacobean rule. The broad premise of The Art of Law in Shakespeare is that the ‘artificial reason’ of law was a complex art form that shared the same rhetorical strategy as the plays of Shakespeare. Common law and Shakespearean drama of this period employed various aesthetic devices to capture the imagination and emotional commitment of their respective audiences. Common law of the Jacobean era, as spoken in the law courts, learnt at the Inns of Court and recorded in the law reports, used imagery that would have been familiar to audiences of Shakespeare’s plays. In its juridical form, English law was intrinsically dramatic, its adversarial mode of expression being founded on an agonistic model. Conversely, Shakespeare borrowed from the common law some of its most critical themes: justice, legitimacy, sovereignty, community, fairness and (above all else) humanity. Each chapter investigates a particular aspect of the common law, seen through the lens of a specific play by Shakespeare. Topics include the unprecedented significance of rhetorical skills to the practice and learning of common law (Love’s Labour’s Lost); the early modern treason trial as exemplar of the theatre of law (Macbeth); the art of law as legitimate distillation of the law of nature (The ­Winter’s Tale); the efforts of common lawyers to create an image of nationhood from both classical and Judeo-Christian mythography (Cymbeline); and the theatrical device of the island as microcosm of the Jacobean state and the project of imperial expansion (The Tempest).

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The Art of Law in Shakespeare

Paul Raffield

OXFORD AND PORTLAND, OREGON 2017

Hart Publishing An imprint of Bloomsbury Publishing Plc Hart Publishing Ltd Kemp House Chawley Park Cumnor Hill Oxford OX2 9PH UK

Bloomsbury Publishing Plc 50 Bedford Square London WC1B 3DP UK

www.hartpub.co.uk www.bloomsbury.com Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA www.isbs.com HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published 2017 © Paul Raffield 2017 The Author has asserted his right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives. gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2016. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: HB: 978-1-50990-547-8 ePDF: 978-1-50990-549-2 ePub: 978-1-50990-548-5 Library of Congress Cataloging-in-Publication Data Names: Raffield, Paul, author. Title: The art of law in Shakespeare / Paul Raffield. Description: Portland, OR : Hart Publishing, 2017.  |  Includes bibliographical references and index. Identifiers: LCCN 2016037920 (print)  |  LCCN 2016049829 (ebook)  |  ISBN 9781509905478 (hardback : alk. paper)  |  ISBN 9781509905492 (ePDF)  |  ISBN 9781509905485 (Epub) Subjects: LCSH: Shakespeare, William, 1564-1616—Knowledge—Law.  |  Law—Great Britain—History— 16th century.  |  Law—Great Britain—History—17th century.  |  Law and literature—History— 16th century.  |  Law and literature—History—17th century.  |  Law in literature. Classification: LCC PR3028 .R335 2017 (print)  |  LCC PR3028 (ebook)  |  DDC 822.3/3—dc23 LC record available at https://lccn.loc.gov/2016037920 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

For my students of Shakespeare and the Law, with gratitude and affection.

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PREFACE

Almost as soon as I had completed Shakespeare’s Imaginary Constitution I knew that the project was unfinished. There I analysed political, constitutional and juridical developments in the last decade of Elizabethan rule, and related these themes to the Elizabethan plays of Shakespeare. The last chapter of that book concerned the first of Shakespeare’s plays written in the reign of James I, Measure for Measure. I was fascinated at the prospect of where the new reign would lead, in theatrical, juridical and political terms. My research led me to consider the proximate development of theatre and law during the first decade of Jacobean rule, which is the underlying premise of this book. I start by looking back to the sixteenth century, positing the rhetorical scheme of the Jacobean legal institution in the arcane realm of the late Elizabethan Inns of Court. After the ground has been laid, I advance into the seventeenth century, allowing the persona of King James I to influence the thematic development of the book, much as he did the various depictions of kingship in the later plays of Shakespeare. I am indebted to many people who encouraged and motivated me throughout the process of researching and writing this book. My particular thanks go to Gary Watt, my colleague and co-founding editor of the journal Law and Humanities, for his continued support. Carol Rutter read an early draft of Chapter 3 and gave me incisive and invaluable comments, for which I give her my profuse thanks. I taught Robert Weatherley in each of his three years as a law student at Warwick. He is now a successful barrister, but still finds time to teach Shakespeare and the Law alongside me. Rob has given me enthusiastic encouragement throughout this project, for which I thank him. To Peter Goodrich, for his scholarship, his generosity of spirit and the warmth of his welcome whenever I visit New York, my thanks. I am very grateful to Alan Norrie for his collegiality and for the many convivial dinners at his home, during which he (and Gwen) offered thoughtful insights into the plays of Shakespeare. My thanks go to the entire team at Hart Publishing for their expertise, efficiency and patience. I must also thank the University of Warwick for granting me study leave in which to complete this book. Beyond the academy, I wish to thank Karl Theobald. I first met Karl at rehearsals for a West End production of Michael Frayn’s Donkeys’ Years. Karl is a scholar, as well as an actor (I hope my career has shown that the two occupations are compatible). He once texted me from a film set, urgently seeking advice on the best English translation of Ovid’s Metamorphoses, and whenever we meet our conversation always comes around to Shakespeare. I have known Anne Atkinson since we were very young children, growing up in Clapham Park. I am grateful for our

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Preface

enduring friendship and for happy days spent at her delightful home in Shakespeare’s Arden. Finally, I thank my parents for so many things, but especially for encouraging me to be curious. My father died before I became an academic, but not only did he inspire my joint fascination with law and theatre, he was also a keen and skilful gardener. I think he would have appreciated the references to gardens, gardening and grafting in Chapter 3, and the numerous allusions to the natural world throughout the book. Paul Raffield University of Warwick Summer 2016

ACKNOWLEDGEMENTS

The final section of Chapter 2 contains extracts from an essay published in Law, Culture and the Humanities (May 2014): http://lch.sagepub.com/content/early/ 2014/05/25/1743872114534800. The opening section of Chapter 3 includes material from an essay published in M Wan (ed), The Legal Case: Cross Currents Between Law and the Humanities (London, Routledge, 2012) 175–89; with permission from Taylor & Francis. The final section of Chapter 3 contains a revised version of an essay published in L Dahlberg (ed), Visualizing Law and Authority: Essays on Legal Aesthetics (Berlin and Boston, Walter De Gruyter GmbH, 2012) 51–73, copyright and all rights reserved; material from this publication has been used with the permission of Walter De Gruyter GmbH. A shorter version of Chapter 4 was published as an article in 27(3) Law & Literature (2015) 313–42: www.tandfonline.com. I am grateful to the publishers and editors of the above publications for ­permission to publish here.

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CONTENTS

Preface���������������������������������������������������������������������������������������������������������������������� vii Acknowledgements���������������������������������������������������������������������������������������������������� ix List of Illustrations�������������������������������������������������������������������������������������������������� xiii

Introduction���������������������������������������������������������������������������������������������������������������1 1. ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast���������������������������������������������������������������������������������������17 I. Oratory, Empire and Common Law�������������������������������������������������������17 II. Rhetoric, Method and the English Lawyer���������������������������������������������18 III. Our English Martiall: John Davies of the Middle Temple�����������������������������������������������������������������������������������������34 IV. Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric�������������������������������������������������������������������������47 2. Princes Set Upon Stages: Macbeth, Treason and the Theatre of Law���������������������������������������������������������������������������������������������������66 I. Compassing or Imagining Regicide��������������������������������������������������������66 II. Of Such Horror, and Monstrous Nature: The Juridical Enactment of Betrayal�������������������������������������������������������71 III. Royal Succession as Theatre of the Whole World����������������������������������81 IV. Treason and the King’s Two Bodies���������������������������������������������������������92 3. The Winter’s Tale: An Art Lawful as Eating����������������������������������������������������108 I. Law, Literature and Genealogy��������������������������������������������������������������108 II. Horticulture, Transformation and the Artifice of Law����������������������������������������������������������������������������������������112 III. The Nature of Law���������������������������������������������������������������������������������118 IV. Inheritance, Gender and the Common Law Tradition������������������������127 V. The Arts of Portraiture and Politics������������������������������������������������������138 4. Cymbeline: Empire, Nationhood and the Jacobean Aeneid���������������������������152 I. Some Footsteps in the Law��������������������������������������������������������������������152 II. A Law Inscribed upon the Heart�����������������������������������������������������������154 III. Postnati. Calvin’s Case and the Journey of Jacobean Law�����������������������������������������������������������������������165

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Contents IV. The Divine Purpose, Nature and the Equivocal Image�������������������������������������������������������������������������������182 V. The Nationalist Ends of Myth���������������������������������������������������������������191

5. The Tempest: The Island of Law in Jacobean England����������������������������������194 I. Cannibals, Colonies and the Brave New World������������������������������������194 II. Utopia and the Legal Imagination��������������������������������������������������������203 III. Enchanted Islands of Common Law�����������������������������������������������������221 Afterword���������������������������������������������������������������������������������������������������������������236

Bibliography������������������������������������������������������������������������������������������������������������239 Index�����������������������������������������������������������������������������������������������������������������������263

LIST OF ILLUSTRATIONS

1.

F Herring, Mischeefes mysterie: or, Treasons master-peece, the Powder-plot (London, E Griffin, 1617) title page. © British Library Board (G.11266). 2. H Goodyere (Sir), The Mirrour of Maiestie: or, the Badges of Honour Conceitedly Emblazoned: with Emblems Annexed, Poetically Unfolded (London, W Jones, 1618) 62–63, ‘To the Three Lordes Chiefe Iustices’ and ‘Embleme 32’. © British Library Board (STC/1098: 10). 3. Papers and Correspondences relating to Mary, Queen (1586). Drawing of trial of Mary Queen of Scots. © British Library Board (Add 48027). 4. Arend Van Buchell’s copy of Johannes de Witt’s Sketch of the Swan Playhouse, London (1596). Reproduced by permission of Utrecht University Library (MS 842, fo 132.r). 5. L Mascall, A Booke of the Arte and maner how to Plant and Graffe all sortes of Trees (London, John Wight, 1582) title page. Illustration of grafting technique. © British Library Board (453.a.2). 6. J Fortescue (Sir), De Laudibus Legum Angliae, J Selden (ed) (London, R Gosling, 1737). Illustration, ‘Chancellor Fortescue follows King Henry’s Fortune, and attending his son Edward into France’, immediately before title page. © British Library Board (1575/208). 7. ‘The Roiail Progenei of our Most Sacred King James (King James I of England and VI of Scotland; Anne of Denmark; Francis II, King of France; Mary, Queen of Scots; Henry Stuart, Lord Darnley; James V of Scotland; Mary of Guise; Margaret Douglas, Countess of Lennox; Matthew Stewart, 13th or 4th Earl of Lennox; James IV of Scotland; Margaret Tudor; Archibald Douglas, 6th Earl of Angus; King Henry VII; Elizabeth of York)’ (1619). Unknown artist. © National Portrait Gallery, London (NPG D1370). 8. T Hill, A Most Briefe and pleasaunte treatise, teaching how to dresse, sowe, and set a garden (London, John Day, 1558). Title page with illustration of enclosed, formal garden. By permission of University of Glasgow Library, Special Collections (13489.5). 9. Anonymous, The Orchard, and the Garden: Containing Certaine necessarie, secret, and ordinarie knowledges in Grafting and Gardening (London, Adam Islip, 1594) 32. Illustration of a knot garden, ‘The Maner or Order to Set the thread or line upon another maner of knot’. © British Library Board (C.27.f.16).

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List of Illustrations

10. Anonymous, The Orchard, and the Garden: Containing Certaine necessarie, secret, and ordinarie knowledges in Grafting and Gardening (London, Adam Islip, 1594) 49. Illustration of a maze, ‘A Mase’. © British Library Board (C.27.f.16). 11. E Coke (Sir), The first part of the Institutes of the laws of England. Or, A commentarie upon Littelton, not the name of a lawyer onely, but of the law it selfe (London, the Societie of Stationers, 1628) 19–20. Illustration of ‘Gradus Parentelæ & Consanguinitatis’. © British Library Board (STC [2nd ed]/15784). 12. R Hackluyt (trans), ‘The True Pictures and Fashions of the People in that Parte of America Now Called Virginia’ in T Hariot, A briefe and true report of the new found land of Virginia (Frankfurt, Iannis Wechel for Theodor de Bry, 1590). Illustration of ‘The Arrival of the Englishemen in Virginia’, unpaginated, plate 2. © British Library Board (C.38.i.18). 13. R Hackluyt (trans), ‘The True Pictures and Fashions of the People in that Parte of America Now Called Virginia’ in T Hariot, A briefe and true report of the new found land of Virginia (Frankfurt, Iannis Wechel for Theodor de Bry, 1590). Illustration of ‘Ther Idol Kiwasa’, sig. D2.r, plate 21. © British Library Board (C.38.i.18). 14. Late medieval court of King’s Bench, c 1450–60. Reproduced by permission of the Masters of the Bench of the Inner Temple. © The Inner Temple (MS Add 188). 15. Portrait of Richard II, wood panel painting (c 1395). Unknown artist. © Dean and Chapter of Westminster. 16. Queen Elizabeth I, ‘The Coronation portrait’ (c 1600). Unknown artist. © National Portrait Gallery, London (NPG 5175). 17. Queen Elizabeth I, ‘Elizabeth I and the Three Goddesses’ (c 1590), watercolour and bodycolour on vellum. Attributed to Isaac Oliver. © National Portrait Gallery, London (NPG 6947). 18. Queen Elizabeth I, ‘The Ditchley Portrait’ (c 1592). Marcus Gheeraerts the Younger. © National Portrait Gallery, London (NPG 2561). 19. Composite image: Portrait of Richard II, wood panel painting (c 1395). Unknown artist. © Dean and Chapter of Westminster; Queen Elizabeth I, ‘The Coronation portrait’ (c 1600). Unknown artist. © National Portrait Gallery, London (NPG 5175). 20. Richard II presented to the Virgin and Child by his Patron Saint John the Baptist and Saints Edward and Edmund. ‘The Wilton Diptych’ (c 1395–99), egg on oak. Unknown artist. © The National Gallery London (NG 4451). 21. J Speed, The Theatre of the Empire of Great Britaine (London, Iohn Sudbury & Georg Humble, 1611) 137–38. Map of ‘The Kingdome of Irland’. © British Library Board (Maps.c.7.c.19).

Yet Nature is made better by no mean But Nature makes that mean. So over that art, Which you say adds to Nature, is an art That Nature makes. William Shakespeare, The Winter’s Tale (4.4.89–92)

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Introduction And though you be a Magistrate of wit, and sit on the Stage at Black-Friers, or the ­Cock-pit, to arraigne Playes dailie, know, these Playes have had their triall alreadie, and stood out all Appeales; and do now come forth quitted rather by a Decree of Court, then any purchas’d Letters of commendation.

Thus, two actors from the King’s Men, Henry Condell and John Heminges, introduced ‘To the great Variety of Readers’ the complete works of William ­Shakespeare in the First Folio edition of his plays, published in 1623.1 For Condell and Heminges, to be a ‘Magistrate of wit’ in the theatre was to inhabit the role of playgoer. The honorific title was bestowed on regular members of the audience at the Blackfriars and Cockpit Playhouses (the latter was rebuilt in 1618 as the Phoenix, after the Cockpit was seriously damaged by rioting in 1617).2 The juridical language employed by Condell and Heminges in the above Introduction to the First Folio, with its references to magistracy, arraignments, trials, appeals, acquittals and decrees of the court, not only suggests a level of acquaintance on their part with the institutional processes and practices of English law, but implies also that audiences were familiar with the terminology of legal procedure and acted as lawgivers of a sort, passing judgement on the relative merits of the plays under scrutiny. The insistent use by Condell and Heminges of metaphor drawn exclusively from the quotidian dealings of judges, lawyers and their clients, recalls the inventory of juridical minutiae and legal artefacts, cited by Hamlet as he contemplates the erstwhile profession of the person whose skull he handles in the graveyard prior to his more famous encounter with Yorick’s skull. If the skull belonged to a counsellor or an attorney, then for all of the lawyer’s acquired experience in cases, tenures and tricks, and his familiarity with technical arcana such as recognisances, vouchers and fines, the end or ‘fine of his fines’ was ‘to have his fine pate full of fine dirt’ (5.1.105–106).3 The language of early modern English law was 1  Mr. William Shakespeares Comedies, Histories, & Tragedies. Published according to the true Originall Copies (London, Isaac Iaggard and Ed. Blount, 1623) sig. A3.r. As well as being actors in the King’s Men (known as the Lord Chamberlain’s Men prior to the accession of James I in 1603), Condell and Heminges (various spellings of his name include ‘Heminge’ and ‘Hemmings’) were sharers in the Globe and Blackfriars Theatres. See C Connell, They gave us Shakespeare: John Heminge and Henry Condell (Boston, Oriel Press, 1982); KE Pogue, Shakespeare’s Friends (Connecticut, Praeger, 2006) 129–31; EK Chambers, The Elizabethan Stage, 4 vols (Oxford, Clarendon Press, 1923) 2: 310–11, 320–23. 2  For an account of the riots, initiated by gangs of apprentices, see A Gurr, The Shakespearean Stage, 1574–1642 (Cambridge, Cambridge University Press, 1992) 14–15. 3  W Shakespeare, Hamlet, H Jenkins (ed) (London, The Arden Shakespeare, 1982). For explanation of the above technical terms, see Chapter 3, n 13, below.

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Introduction

exclusive: its technical terms were comprehensible only to early modern English lawyers. To complicate matters further, its juridical procedures were implemented in three languages: English, Latin and a bastardised form of Norman French, known as law-French.4 Thorough knowledge of common law was the product of many years’ study at the Inns of Court, during which time (according to Sir John Dodderidge) the vigour of youth was wasted.5 For lawyers of the early modern period, common law conformed to the Ciceronian definition of law as ‘right reason in agreement with nature’ (‘recta ratio naturae congruens’).6 Throughout this book, I consider at length the correlation between law and nature,7 and the identification of common law with a higher moral law, inscribed by God in the hearts of men.8 Whilst common lawyers subscribed readily to the Thomist definition of natural law as those precepts of eternal law concerning the behaviour of beings possessed of reason and free will,9 they distinguished between the ‘right reason’ of law conformable with nature and the artificial means through which law might be understood and expounded. This was the difference between the natural reason of common law and the art of law as practised by common lawyers. The distinction was articulated by Sir Edward Coke in his report of Prohibitions del Roy (1607), as he sought to justify the argument that ‘the King in his own person cannot adjudge any case’;10 this despite the fact that the courts were the king’s courts or curiae regis: Then the King said, that he thought the law was founded upon reason, and that he and ­others had reason, as well as the Judges: to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law; which law is an act which requires long study and experience, before that a man can attain to the cognizance of it …11

4  For extensive discussion of and references to the three languages of common law, see Chapter 1, text to nn 15–23, 47–49, 69–72, below. 5  On Dodderidge and legal education at the Inns of Court, see Chapter 1, text to n 14, below. 6  MT Cicero, ‘The Republic’ in De Re Publica, De Legibus, CW Keyes (trans) (Cambridge, Mass, Harvard University Press, 1928) 211, Bk III.XXII.33. The Elizabethan lawyer and law reporter Edmund Plowden declared that common law was ‘no other than pure and tried reason’: The Case of Mines (1568) in The Commentaries or Reports of Edmund Plowden, 2 vols (Dublin, H Watts, 1792) 1: 310, 316. For discussion of The Case of Mines and its relevance to Hamlet, see C Sale, ‘“The King is a Thing”: the King’s Prerogative and the Treasure of the Realm in Plowden’s Report of the Case of Mines and Shakespeare’s Hamlet’ in P Raffield and G Watt (eds) Shakespeare and the Law (Oxford, Hart Publishing, 2008) 137–57. 7  On the correlation (identified by Cicero) between law, reason and nature, and the application of this principle to the art of horticulture, see Chapter 3, text to nn 50–51, below. 8  See for example, The Reports of Sir Edward Coke and Le Primer Report des Cases of John Davies, discussed in Chapter 4, text to nn 36–37, below. 9  Question 94, ‘Of the Natural Law (In Six Articles)’ in St Thomas Aquinas, Summa Theologica (Pars Prima Secundae). 10  Prohibitions del Roy in Part 12 (1655) of The Reports of Sir Edward Coke, Knt. In English, G Wilson (ed), 7 vols (London, Rivington, 1777) 7:63. 11  ibid, 65. On ‘artificial reason’, see also, Chapter 1, n 158, below.

Introduction

 3

Somewhat more succinctly, in a later study and with reference to the requisite professional skills of the twenty-first-century lawyer, James Boyd White insisted that ‘Like Greek, law is a language that must be learned’ (a sentiment with which Coke would probably agree, having previously declared that English law was first recorded ‘in the Greek tongue’).12 The phrase ‘artificial reason’, employed by Coke in the context of the lawyer’s craft, is not unambiguous. Coke intended the King to understand that the practice of law was dependent for its successful reception and resolution on the technical skills of the lawyer (in accordance with the linguistic origins of ‘artificial’ in Latin artificium, meaning workmanship or art); but an alternative definition of ‘artificial’ equates the lawyer’s craft with insincerity, falsehood and affectation (a dichotomy which I analyse in Chapter 1, below). In Coke’s own words, and in support of the latter interpretation, it may reasonably be stated that ‘law is an act’. It was probably the cynical interpretation of ‘artificial reason’ that Hamlet had in mind when he asked of the putative lawyer’s skull: ‘Where be his quiddities now, his quillities, his cases, his tenures, and his tricks?’ (5.1.97–98). In Shakespeare’s Imaginary Constitution, I noted that while Coke was neither a dramatist nor a friend to actors, he recognised and embraced the dramatic medium through which English law manifested itself to its audience (as I ­discuss in Chapter 2 below, with reference to the trials for High Treason that he prosecuted as Attorney-General on behalf of the crown, Coke’s style of advocacy might fairly be described as histrionic).13 Critics have suggested that Coke was to English-speaking lawyers what Shakespeare was to the English written word.14 In his Introduction to the Arden edition of Shakespeare’s earliest Roman tragedy, Titus Andronicus, Jonathan Bate notes the use made by the eponymous hero of ‘the language of the law’.15 As Titus prepares to kill his ravaged and mutilated daughter Lavinia, he claims that there is ‘A pattern, precedent, and lively warrant’ (5.3.43) for slaying her.16 Bate goes on to argue that the reliance of Titus on precedent, as

12  JB White, The Edge of Meaning (Chicago, University of Chicago Press, 2001) 224; Coke, 3 Reports (1602) 2: ‘To the Reader’, viiia; see Chapter 4, text to n 27, below. 13  P Raffield, Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (Oxford, Hart Publishing, 2010) 28, 35–36. Following his appointment as Chief Justice of the Common Pleas, Coke gave the following advice to the Grand Jury at the Norwich Assizes on 4 August 1606: ‘The abuse of Stage players, wherewith I find the Countrey much troubled, may easily be reformed: They having no Commission to play in any place without leave: And therefore, if by your willingnesse they be not entertained, you may soone be rid of them’: E Coke (Sir), The Lord Coke His Speech and Charge. With a Discoverie of the Abuses and Corruption of Officers (London, Christopher Pursett, 1607) sig. H2.r. 14  See AD Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, Conn, Stanford University Press, 2003) Preface, ix. 15 W Shakespeare, Titus Andronicus, J Bate (ed) (London, Arden Shakespeare, 1995) Introduction, 28. 16  The precedent to which Titus refers is the story of the centurion Verginius in Livy’s History of Rome, in which the father stabbed his daughter Verginia with a butcher’s knife, in so doing freeing her from enslavement to the decemvir Appius: Livy, The Early History of Rome: Books 1–5 of the History of Rome from its Foundation, A de Selincourt (trans) (Harmondsworth, Penguin, 1960) 220. On precedent in the plays of Shakespeare, see Chapter 3, n 14 and text to n 14, below.

4 

Introduction

the legitimising factor in the decision to murder his daughter, ‘makes him into the voice of the English common law, a dramatic antecedent to Sir Edward Coke’.17 Scholars have argued that the promotion by Coke of a system of precedent, on which the foundations of modern common law were built, not only gave history an exalted status in the governance of seventeenth-century England, but also ensured that history threatened to supplant reason as the primary, identifiable basis of judicial decision-making.18 The meaning of ‘history’ is central not only to the form in which law was determined and described in the early seventeenth century, but also to the replication and representation of history and law in Shakespearean drama of the Jacobean period.19 The contribution of Coke to the understanding and interpretation of history was of paramount importance, especially in relation to the origins of English law and the legitimacy of English (and subsequent British) monarchy. The idealised version of British history described by Coke in his prefaces to the thirteen parts of The Reports derives its authority from two principal sources: Historia Regum Britanniae by Geoffrey of Monmouth, and De Laudibus Legum Angliae by Sir John Fortescue.20 For Geoffrey of Monmouth, Britain was ‘the best of islands’; while for Coke (and in much the same tone) it was ‘the happy island’.21 Coke was indebted both to Geoffrey of Monmouth and Fortescue for promulgating the myth of the Trojan King Brutus and associating him with rebuilding the city of Troy in London (as Troia Nova or Troynovant) and founding a corpus of English law.22 Brutus, the archetype of English law and British kingship who (according to Fortescue) ruled both royally and politically (dominium politicum et regale),23 became for Coke an iconic symbol of the principle of limited

17 

Bate (ed), Titus Andronicus, Introduction, 28. See K Sharpe and C Brooks, ‘History, English Law and the Renaissance’ (1976) 72 Past & Present 133–42, 136; also, K Sharpe, Politics and Ideas in Early Stuart England (London, Pinter Publishing, 1989) 174–81. 19  Goodrich argues that ‘history is the reality (the trauma) of legal practice and tradition the narrative logic of its development’: P Goodrich, ‘Poor Illiterate Reason: History, Nationalism, Common Law’ (1992) 1 Social & Legal Studies 7-28, 8. 20  Historia Regum Britanniae was completed c 1136; see Geoffrey of Monmouth, The History of the Kings of Britain, L Thorpe (trans) (London, Penguin, 1966) Introduction, 9-45. De Laudibus Legum Angliae was completed c 1470 and published in Latin c 1545, as de politica administratione, et legibus ciuilibus florentissimi regni Anglie, commentarius; on its first publication in English; see Chapter 4, n 128, below. 21  Geoffrey of Monmouth, History of the Kings of Britain, 53, Pt i.2; Coke, 3 Reports, ‘To the Reader’, xb. On the possible influence of Thomas More’s Utopia over Coke’s description of Britain, see Chapter 5, text to nn 47–48, below. 22  J Fortescue (Sir), De Laudibus Legum Angliae, J Selden (ed) (London, R Gosling, 1737) 23–24. On the promotion by Fortescue and Coke of the legend of Brutus, see Chapter 4, text to nn 26–29, below; also, Chapter 3, text to nn 15–16, below. 23 On the distinction made by Fortescue between dominium politicum et regale and dominium regale, see J Fortescue (Sir), ‘The Governance of England’ in S Lockwood (ed), On the Laws and Governance of England (Cambridge, Cambridge University Press, 1997) 83–84; see also, Chapter 2, text to n 176, below. 18 

Introduction

 5

monarchy, according to which the king was accountable to Parliament and restricted in the exercise of prerogative power by the definitive authority of common law.24 From Fortescue especially, Coke inherited the idea of the immemorial origins of English law, of the unbroken continuity of a legal system founded in custom and immune to interference from successive invading forces (Romans, Saxons, Danes and Normans). Despite the irrefutable fact of invasion, Fortescue insisted that English law maintained its integrity; common law was immutable and for all time: And, during all that Time, wherein those several Nations and their Kings prevailed, England has nevertheless been constantly governed by the same Customs, as it is at present: Which if they were not above all Exception Good, no Doubt but some or other of those Kings, from a Principle of Justice, in Point of Reason, or mov’d by Inclination, would have made some Alteration or quite abolished them …25

The identical observation was made by Coke in the preface to Part Two of The Reports: If the ancient laws of this noble island had not excelled all others, it could not be, but some of the several conquerors and governors thereof, that is to say, the Romans, Saxons, Danes, or Normans, and ‘specially the Romans, who (as they justly may) do boast of their civil laws, would (as every of them might) have altered or changed the same.26

Continual references to the antiquity of common law, in both De Laudibus and The Reports, lend some (albeit limited) credibility to the mythical quality of the history narrated by Fortescue and Coke. If English law was (as these writers claimed) ancient and had existed since ‘time out of mind of man’,27 then the argument that the Trojan Brutus had landed in Totnes, slain the Devonian and Cornish giants, journeyed eastward to establish a new Troy on the banks of the Thames, and bequeathed its citizens a code of laws (written in the Greek tongue),28 has at least the faintest complexion of historical accuracy. The quest by Coke to convince readers of the veracity of his arguments concerning the ancientness of English law

24  On Richard Hooker and the Bractonian interpretation of kingship as subordinate to God and law, see Chapter 2, n 187, below. 25 Fortescue, De Laudibus, 30–31. 26  Coke, 2 Reports (1602), 1: ‘To the Learned Reader’, x. The same claim was made by Coke in various of the prefaces to The Reports, and especially in relation to the Norman conquest; see Coke, 3 Reports, 2: ‘To the Reader’, vib-viia; also, Chapter 5, text to nn 44–46, below. Spelman argued that common law derived from Germanic sources: ‘I think the foundation of our Laws to be laid by our German Ancestours, but built upon and polished by materials taken from the Canon Law and Civil Law.’ According to Spelman, those who believed both that Brutus had founded common law and that the English legal system had successfully resisted infiltration and corruption by subsequent Roman, Saxon, Danish and Norman invaders, were ‘like them that make the Arcadians to be elder than the Moon’: H Spelman (Sir), Of the Law-Terms: A Discourse (London, Matthew Gillyflower, 1684) 81, 87–88; see JGA Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, Cambridge University Press, 1987) 96–97. 27  Coke, 3 Reports (1602), 2: ‘To the Reader’, viia. 28  Geoffrey of Monmouth, History of the Kings of Britain, 71–74, Pt i.15–17.

6 

Introduction

was given considerable heft by his authorial style, which conveyed the impression of a biblical prophet, seer or Druidical lawgiver.29 He informed readers that: Never shalt thou find any that hath excelled in the knowledge of these laws, but hath sucked from the breast of that divine knowledge, honesty, gravity, and integrity, and by the goodness of God hath obtained a greater blessing and ornament than any other profession to their family and posterity …30

The prophetic tone of the seer was not confined to the prefaces: in his reporting of the cases themselves, the same aura of divine, oracular wisdom was invoked, notably in the most famous of all his reports, Postnati. Calvin’s Case. There, he wrote that counsel for the plaintiff had ‘followed the counsel given in God’s book’, emphasising the importance of past judgments to the present juridical situation: ‘… (for out of the old fields must come the new corn) & diligenter investiga partum memoriam, and diligently search out the judgments of our forefathers’. He concluded this passage with characteristic allusions to an immemorial past; but he incorporated also an elliptical reference to The Book of Job, thereby skilfully interweaving the tenets of municipal and divine law: For we are but of yesterday, (and therefore had need of the wisdom of those that were before us) and had been ignorant (if we had not received light and knowledge from our forefathers) and our days upon the earth are but as a shadow, in respect of the old ancient days and times past, wherein the laws have been by the wisdom of the most excellent men, in many successions of ages, by long and continual experience (the trial of right and truth) fined and refined …31

Calvin’s Case was a seminal, judicial decision in determining the constitutional rights and obligations of those Scottish subjects of King James VI born after his accession in 1603 to the English throne as James I, and is a source of extensive analysis in Chapter 4, below. In the above exegesis on the reported history of English law, I have placed great emphasis on the mythography provided by Coke and his judicial predecessor, Fortescue. The invocation of classical antiquity, in the person of Brutus of Troy, is of especial relevance to James I, and of his efforts to mould a united British nation from its disparate kingdoms of England, Scotland, Wales and Ireland. The conceit of a British nation emerging from the ashes of Troy did not originate in

29  On references by Coke to the Druids, and the Druidical foundations of English law, see Raffield, Shakespeare’s Imaginary Constitution, 44–47; also, P Goodrich, ‘Druids and Common Lawyers: Notes on the Pythagoras Complex and Legal Education’ (2007) 1 Law and Humanities 1-30. Regarding claims made on their behalf to be the founders of English law, Spelman was as dismissive of the Druids as he was of Brutus: Spelman, Of the Law-Terms, 87. 30  Coke, 2 Reports, 1: ‘To the Learned Reader’, x–xi. 31 Coke, Postnati. Calvin’s Case, 7 Reports (1608) 4: 1a, 3b. For extensive discussion of Calvin’s Case, see Chapter 4, text to nn 63–81, 134–38, below. The relevant passage from Job reads as follows: ‘For enquire, I pray thee, of the former age, and prepare thyself to the search of their fathers: (For we are but of yesterday, and know nothing, because our days upon earth are a shadow:)’, The Book of Job, 8.8–9 (Authorised King James Version of The Bible).

Introduction

 7

the Jacobean era. The aspirations of unified nationhood, of a new ­civilisation emerging triumphant from the ashes of the old, were addressed directly in Virgil’s Aeneid and applied by propagandists, polemicists and poets to the postHenrician, English nation-state.32 In The Faerie Queene, written between 1590 and 1596, Edmund Spenser wrote that ‘noble Britons sprong from Troians bold,/ And Troynovant was built of old Troyes ashes cold.’33 The depiction of Elizabeth I as a divine figure—at various times, Astraea, Venus, Gloriana and Diana—was apparently not incompatible with the description of her as the ‘beauteous Queen of second Troy’, as she was described in a song entitled ‘The Nymphs to their May Queen’,34 written by Thomas Watson and sung to the Queen on the occasion of her visit to the Earl of Hertford at Elvetham Park in September 1590.35 The above exception notwithstanding, royal iconography of the Elizabethan period usually depicted the monarch in terms of her quasi-divinity: the virginal deity, sent to earth to found a new Golden Age in England. The character of Brutus and in particular the story of his epic journey from Italy to England (via Greece, Mauretania and Aquitaine), as related by Geoffrey of Monmouth, was more aptly applied to James I, especially regarding the founding of a dynasty. The goddess Diana spoke to Brutus in a dream, prophesying that ‘for your descendants it will be a second Troy. A race of kings will be born there from your stock and the round circle of the whole earth will be subject to them.’36 In the contemporaneous mythology of English kingship, the unbroken chain of ‘British’ kings had ended with the death of Cadwallader (in 682 AD), whose Welsh origins were provided as proof of the legitimacy of Tudor rule and its foundation in 1485 under Henry VII, born in Pembroke in 1457. The Tudor dynasty was represented as forging the historical link with Cadwallader: Owen Tudor, grandfather of Henry VII, claimed to be descended from him.37 James I—father of five children by the time of his accession to the English throne38—was to be the founder of a nation, Britain, and (unlike his Tudor predecessor) the begetter of kings. Like his mythical forebear Brutus, James I had made an epic journey to London from a foreign land; the King started the journey south from Edinburgh upon his accession to the English throne on

32 

See Raffield, Shakespeare’s Imaginary Constitution, 34–35. E Spenser, The Faerie Queene, TP Roche Jr (ed) (London, Penguin, 1987) 515, Bk III. IX.38. 34  T Lyle (ed), Ballads and Songs (London, L Relfe, 1827) 24. See H James, Shakespeare’s Troy: Drama, Politics and the Translation of Empire (Cambridge, Cambridge University Press, 1997) 18. On the various images of divinity associated with the reign of Elizabeth I, see Chapter 3, text to nn 149–53, below. 35  For an account of the royal visit, see A Strickland, Lives of the Queens of England, from the Norman Conquest, 8 vols (London, Henry Colburn, 1844) 7: 149–52; the author records that the song was sung by ‘six fair virgins, crowned with flowers, three of them representing the graces and three the hours’, ibid, 150. 36  Geoffrey of Monmouth, History of the Kings of Britain, 65, Pt i.11. 37  On the Welsh origins of the Tudors, see D Loades, The Tudors: History of a Dynasty (London, Bloomsbury, 2012); also, L de Lisle, Tudor: The Family Story (London, Chatto & Windus, 2013). 38  Only three of these children—Henry, Elizabeth and Charles—lived to see their father succeed to the English throne. Margaret (b 1598) and Robert (b 1602) died soon after their births, respectively in 1600 and 1602. Two more daughters—Mary (b 1605) and Sophia (b 1607)—died as babies. 33 

8 

Introduction

24 March 1603.39 The ‘wandring Brute’ of Virgil’s Aeneid became ‘a second Brute’ in the person of James I, and consequently (according to William Herbert): ‘The golden age begins with Iacobs raigne.’40 The propagation of originary myth was a salient feature not only of the various poetical and ‘historical’ accounts of British kings and their ancestors; it was also, as I have indicated above regarding Fortescue and Coke, the primary device through which the antiquity and unimpeachable genealogy of common law were asserted. The publication of law reports in the Elizabethan period represented a turning point in the manner in which the body of common law was disseminated, and the style in which the reports themselves were written. The anonymous Year Books, recorded in manuscript form, were notable for their lack of narrative logic and coherent form: they provided discursive accounts of juridical proceedings, while often failing to record either matters of legal principle or the ratio decidendi itself.41 The publication of law reports in printed form enabled and encouraged the development of authorial skills, more commonly associated with the poet than the judge or the law reporter. Concomitant with the enhanced poetic craft of the judge and the law reporter (in both of which capacities Coke excelled), the printed word facilitated the development of more sophisticated interpretative or hermeneutic skills among the legal fraternity.42 Martha Nussbaum has noted the phenomenon of the ‘poet-judge’ and synonymously the ‘literary judge’.43 He was uniquely equipped to give equitable judgments, compliant always with the Aristotelian requirement of epieikeia or natural equity.44 Equity was demonstrably a notable feature of judgments in the courts 39  On the journey south, the royal party was entertained at various locations. On the performance at Althorp on 25 June 1603, before Queen Anne and Prince Henry, of Ben Jonson’s A Particular Entertainment of the Queen and Prince at Althorp (subtitled A Satyr), see Raffield, Shakespeare’s Imaginary Constitution, 126–27, 130–31; also, EK Chambers, The Elizabethan Stage, 4 vols (Oxford, Oxford University Press, 1923) 3: 391. 40  W Herbert, A Prophesie of Cadwallader, last King of the Britaines: Containing a Comparison of the English Kings (London, Roger Iackson, 1604) sigs. G5.v, H.r. Herbert rehearsed the popular belief that Cadwallader undertook a pilgrimage to Rome (see Geoffrey of Monmouth, 282–83, Pt xii.17–18), ‘where he undertooke the habit of a Friar’: Herbert, Prophesie of Cadwallader, sig.B. v (marginal note); it is noteworthy in this respect that, during a speech made to Parliament on 21 March 1610, James I said: ‘I must conclude like a Grey Frier’, JP Sommerville (ed), King James VI and I: Political Writings (Cambridge, Cambridge University Press, 1994) 202. 41 See LW Abbott, Law Reporting in England, 1485–1585 (London, Athlone, 1973); also, WS Holdsworth, A History of English Law, 17 vols (London, Methuen, 1937–72) 5 (1945): 355–70. 42  On the textualisation of law and the associated standardisation of law reporting in Elizabethan England, see P Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge, Cambridge University Press, 2004) 37–42. 43  MC Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston, Beacon Press, 1995) 80, 82; see also Kantorowicz, who characterised the pre-modern judge as a poet, incorporating the fictions of natural law into quotidian juridical practices: EH Kantorowicz, Selected Studies (New York, JJ Augustin, 1965) 118. 44 On epieikeia, see The Nicomachean Ethics, Bk V.X.1137b25–30: ‘This is the essential nature of equity; it is a rectification of law in so far as law is defective on account of its generality. This in fact is also the reason why everything is not regulated by law: it is because there are some cases that no law can be framed to cover, so that they require a special ordinance’: Aristotle, The Nicomachean Ethics, JAK Thomson (trans) (London, Penguin, 2004) 141.

Introduction

 9

of common law throughout the Elizabethan period, and especially in the resolution of contractual disputes. Hence in his report of Eyston v Studd, heard by the court of Common Pleas in 1574 (concerning the terms of a disputed lease and the subsequent eviction of the plaintiff by the defendant), Edmund Plowden reflected on the nature of equity, which he insisted was an essential component of common law.45 By definition, appealing as they did to the ‘sense’ rather than the ‘letter’ of the law, equitable judgments were contingent upon the imaginative and humane facilities of the judges. Commenting on the resistance of Dickens’s Mr Gradgrind to the ‘exuberance of imagination’, Nussbaum argues that literature and the literary imagination are ‘subversive’: literature ‘is the enemy of political economy’ because it does not reduce humanity to a definitive ‘tabular form’.46 It was precisely this imaginative exuberance which enabled the judges in The Case of the Dutchy of Lancaster (and other cases of the Elizabethan period reported by Plowden) to employ the visual imagery of the two conjoined bodies of the king (bodies natural and politic) as a means of representing the principle that the crown was accountable to law, as interpreted by its judges.47 It is fair to say that in the first decade of Jacobean rule, Coke extended the imaginative boundaries of law reporting (as instanced by the numerous quotations from The Reports, included throughout this book) initiated by Plowden in the 1570s.48 Coke thereby gave voice to the autonomous subject of law and his putative claim to irrefutable constitutional status; this in the face of a government which increasingly sought to impose law by recourse to the exercise of extensive prerogative powers.49 The broad premise of this book is that during the first decade of Jacobean rule, the arts of law and drama developed contiguously, the one aesthetic form learning from and imitating the other. A brief glance at even a handful of Shakespeare’s plays reveals the author’s enduring fascination with law and legal procedure: the agon of the trial is represented to great dramatic effect in, for example, The ­Merchant of Venice, Measure for Measure, King Lear and The Winter’s Tale. The intrinsic drama of the courtroom is only one aspect of the law, but it is one with which Shakespeare was evidently fascinated. To the question, ‘Was Shakespeare familiar with the law reports?’ the answer is almost certainly ‘Yes’. For the a­ nonymous

45 Plowden, Eyston

v Studd, Commentaries, 2: 459, 466; see Chapter 2, text to nn 135–36, below. Justice, 1. Case of the Dutchy of Lancaster, Commentaries, 1: 213. On the interpretation by Kantorowicz of the medieval theory of the king’s two bodies, see Chapter 2, text to nn 131–53, below. For references to recent scholarship on the subject of Plowden, Kantorowicz and the juridical application of the above theory, see Chapter 4, n 140, below. 48  The first edition of Plowden’s Commentaries or Reports was published in 1571, and such was its success that a second edition (with additional cases) was published in 1578. As Plowden justly claimed in the preface, they ‘excell any former book of reports in point of credit and authority’: Plowden, Commentaries, 1: ‘The Preface’, xi. In systematic manner, each report is preceded by a note of the pleadings, followed by a record of the judgment itself. 49  On the articulation by Coke of a social contract between governor and governed, see Chapter 4, text to n 51, below. 46 Nussbaum, Poetic 47 Plowden,

10 

Introduction

author of Thomas of Woodstock, or King Richard the Second, Part One, written between 1591 and 1595, The Commentaries or Reports of Plowden prompted the line: ‘for I have plodded in Plowden and can find no law …’ (5.6.35–36). The play ends prematurely on that line, the last page of the manuscript having been lost. The line is spoken by the character of Nimble, who informs the audience that he ‘was once a trampler in the law’ (5.6.23); ‘trampler’ being Elizabethan slang for ‘attorney-at-law’.50 The suggestion that there was no law in The Commentaries or Reports of Edmund Plowden is peculiar, although the line may allude to Nimble’s rudimentary knowledge of law, given that attorneys comprised the junior branch of the legal profession. But if Nimble found no law in Plowden, then it seems that Shakespeare did. The drowning by suicide of Sir James Hales and the juridical proceedings following his death, as narrated by Plowden in the report of Hales v Petit, provided one source for the suicide of Ophelia in Hamlet, and for the paraphrasing by the gravedigger of words spoken by counsel in that case: ‘if I drown myself wittingly, it argues an act, and an act hath three branches—it is to act, to do, to perform’ (5.1.10–12).51 In the plays of Shakespeare, law (especially in its juridical context) and drama appear to be indivisible phenomena, linked by their shared rhetorical schemes. There is no evidence in any of the records of the Inns of Court that Shakespeare had enrolled as a student there,52 but his plays repeatedly demonstrate that the institutional heart of the legal community in London was a place with which

50 P Corbin and D Sedge (eds), Thomas of Woodstock or King Richard the Second, Part One (­ Manchester, Manchester University Press, 2002) 186, n 23. The word ‘trampler’ is used repeatedly in Middleton’s A Trick to Catch the Old One. There, the attorney Harry Dampit describes himself as follows: ‘a trampler of time, say, hee would bee up in a morning, and be here with his Serge Gowne, dasht up to the hams in a cause, have his feete stincke about Westminster hall and come home agen, see the Galleouns, the Galleasses the great Armadoes of the Lawe …’, T Middleton, A Trick to Catch the Old One (London, George Eld, 1608) (Act 1) sig. B3.v. 51  See Plowden, Hales v Petit, Commentaries, 1: 253. Counsel for the defendant, Serjeant Walsh, ‘said that the act consists of three parts …’ ibid, 259. The original report was written in law-French: ‘Et Walsh dit que le fact consist de trois partes’, Trespas per Dame Hales envers Pettite in Les Commentaries, ou Reports de Edmund Plowden un Apprentice de le common Ley (London, Richardi Tottelli, 1571) Pt 1: fo. 253.r, at 259.v. For further quotations from Plowden’s report of Hales v Petit and discussion of the case in relation to Hamlet, see Raffield, Shakespeare’s Imaginary Constitution, 92–94; also, A Zurcher, Shakespeare and Law (London, Arden Shakespeare, 2010) 256–64. 52  There were links between Shakespeare’s neighbours in Stratford and the Middle Temple: Hotson notes that the chambers of ‘William Combe, M.P., of Warwick, Stratford, and London’ (a Bencher of the Middle Temple) were ‘taken over by his great-nephews, Shakespeare’s neighbours and friends, ­William and Thomas Combe’, and that Shakespeare’s ‘cousin’ Thomas Greene, a member of the Middle Temple since 1595, became Treasurer of the Middle Temple in 1629: L Hotson, Shakespeare’s Sonnets Dated (London, Hart-Davis, 1949) 44; see also, S Wells, ‘A close family connection: the Combes’ in P Edmondson and S Wells (eds), The Shakespeare Circle: An Alternative Biography (Cambridge, Cambridge University Press, 2015) 149–60; T Hamling, ‘His “cousin”: Thomas Greene’ in ibid, 135–48; R Taylor, ‘Shakespeare’s Cousin, Thomas Greene, and his Kin: Possible Light on the Shakespeare F ­ amily Background’ (1945) 60 Publications of the Modern Language Association of America 81–94. One of Greene’s ‘sureties’ when he joined the Inn was John Marston the dramatist, a fellow Middle Templar. By 1601, Greene was acting as solicitor for the Corporation of Stratford-on-Avon: ibid, 81. On Marston at the Middle Temple, see Chapter 1, text to nn 34–35, below.

Introduction

 11

he was familiar. The hapless Sir Andrew Aguecheek tells Sir Toby Belch that he ‘delight[s] in masques and revels sometimes altogether’ (Twelfth Night, 1.3.107–8), a reference to the seasonal revels of the Inns and a line that would have had especial comic resonance when Twelfth Night was performed at Middle Temple Hall in February 1602.53 In the bucolic surroundings of his Gloucestershire estate, Justice Shallow fondly reminisces that he ‘was once of Clements-inn; where I think they will talk of mad Shallow yet’ (Henry IV, Pt. 2, 3.2.15–16), an allusion to the raucous behaviour of law students, of which there are numerous accounts in the records of the Inns.54 In Shakespeare’s Imaginary Constitution I noted that the first of Shakespeare’s Jacobean plays, Measure for Measure, ‘was a prophetic portrait of the Jacobean dawn’.55 In the present book, I develop themes explored in the earlier work, where I concentrated on the Elizabethan plays of Shakespeare and developments in law during the last decade of Elizabethan rule. In The Art of Law in Shakespeare, I reflect mainly on the representation of the legal institution in Shakespeare’s ­Jacobean plays. It is at least arguable that in these works Shakespeare focused more clearly than he had in the Elizabethan plays on the complex persona of the ruler (Measure for Measure, Macbeth, King Lear, The Winter’s Tale, Cymbeline and The Tempest all spring immediately to mind). This development is possibly not unconnected to the publication (in the late 1590s) of two major political works by James VI, concerning the art of kingship: The Trew Law of Free Monarchies (1598) and Basilicon Doron (1599), both of which were republished upon his accession to the English throne as James I.56 In these works, the distinctive and obsessive opinions of their author on the subject of kingship (with particular reference to the unlimited powers of an anointed king) were made available through the medium of print to a wide audience. The rationale of Jacobean kingship and the (often fractious) relationship between crown and common law is a primary theme of this book, as it is of the plays of Shakespeare considered herein. If the legal themes of Shakespeare’s plays reflect acquired knowledge of English law, gained as much from friends, relatives and acquaintances, as from study of substantive law itself, they also demonstrate a crucial feature of the Jacobean state, which is that government was presented to the public as a form of theatre. In Basilicon Doron, James VI had declared ‘That a King is as one set on a stage, whose smallest actions and gestures, all the people gazingly doe behold’.57 This was a

53 

On the performance of Twelfth Night at the Middle Temple, see Chapter 1, n 180, below. example, the records of Council at Lincoln’s Inn for 1550 include the following entry: [15 May] ‘Dodmer fined 5s for striking the Steward in Hall. Southewell fined 6s 8d for drawing his dagger on the Steward’: WP Baildon, JD Walker, R Roxburgh (Sir) (eds), The Black Books of Lincoln’s Inn, 6 vols (London, Lincoln’s Inn, 1897) 1: 293; see also Chapter 1, text to n 197, below. On Justice Shallow and the education of attorneys at the Inns of Chancery, see Raffield, Shakespeare’s Imaginary Constitution, 166–68. 55  ibid, 17. 56  See ibid, 183–84. 57  James VI, ‘Basilicon Doron’ in Sommerville (ed), King James VI and I, 49. 54 For

12 

Introduction

sentiment that he rehearsed in a speech, made as James I to both Houses of Parliament in March 1610: ‘As I have already said, Kings Actions (even in the secretest places) are as the actions of those that are set upon the Stages, or on the tops of houses’.58 Certain Jacobean plays of Shakespeare, such as Measure for Measure, Othello, Macbeth and The Tempest, were performed at the royal court, in the presence of James I, and the later plays (notably the ‘romances’—Pericles, The Winter’s Tale, Cymbeline and The Tempest) incorporated the unique theatrical form of the masque, which became increasingly popular at the court of James I.59 The correlation between the Jacobean masque and the juridical processes of English law is instanced by the shared theme of divine justice overseeing (and intervening in) the affairs of humankind.60 Coke and his contemporaries within the English legal institution described municipal law as nothing less than divine law, articulated by God’s earthly ministers, the lawyers and judges of common law. In Chapter 1, I explore the influence of neoclassical, rhetorical techniques over the development of juridical procedure in early modern England. This chapter is the only one in which I make extensive reference to the Elizabethan period. It was in the sixteenth century that, due to major advances in printing technology, ‘medieval books poured from the press’ (to borrow Maitland’s phrase).61 This was also the period, it will be argued, in which the development by lawyers of rhetorical skills (in both oral and textual forms) shaped a distinctive aesthetics of English law. The sixteenth century witnessed the unprecedented mass publication of ancient philosophical and rhetorical works, such as those by Plato, Aristotle, Quintilian and Cicero. Also of great significance for the expanding legal profession was the outpouring of rhetorical manuals, the most popular of which (Sir Thomas Wilson’s The Arte of Rhetorique) was published in eight editions between 1553 and 1585 and studied by inner barristers at the Inns of Court.62 In the first section of Chapter 1, I examine the form and content of legal education at the Inns (based as it was on the rhetorical skills of forensic oratory). This leads me to discussion of a particular form of Elizabethan and Jacobean drama, which satirised an insular legal profession that was perceived to be acting in the interests only of its members, and actively seeking to exclude the laity from comprehension of its arcane language and practices. Included in this section is a discussion of a Jacobean, academic play by George Ruggle, entitled Ignoramus, performed before 58 

James I, ‘Speech to Parliament, 21 March 1610’ in ibid, 184; see Chapter 4, text to n 17, below. makes the important observation that the court masque was not merely ‘an elaborate frame for nothing more nor less than an aristocratic knees-up’, but rather that it was through ‘the intellectual seriousness of the programme underlying the text and its solid foundation of classical learning that it is able to reach transcendent truths’: D Lindley (ed), Court Masques: Jacobean and Caroline Entertainments, 1605–1640 (Oxford, Oxford University Press, 1995) Introduction, x–xi. See also, G Heaton, Writing and Reading Royal Entertainments: From George Gascoigne to Ben Jonson (Oxford, Oxford University Press, 2010). 60  On the correlation between masques and the form of Jacobean government, see Chapter 4, text to nn 178–86, below; also, Chapter 5, text to nn 170–212, below. 61  See Chapter 1, text to n 11, below. 62  See Chapter 1, text to n 5, below. 59  Lindley

Introduction

 13

James I at Cambridge in 1615. In the following section, I examine the medium of satire through analysis of the epigrams of Sir John Davies (lawyer, judge and poet). These pithy verses, which launched scathing attacks aimed at the mendacity and venality of his fellow barristers, were published in 1599, only to be burned in the same year following the Proclamation of the Bishops’ Ban. In the final section of Chapter 1, I examine the ‘little academe’ of Love’s Labour’s Lost (the only Elizabethan play of Shakespeare’s considered in the present study) in the context of the English legal institution, noting the extraordinary similarities between the enclosed and self-referential world of the King of Navarre’s court and the legal academy at the Inns of Court. In Chapter 2, the setting moves from the cloistered environs of the Inns of Court to the theatrical space of the courtroom, and specifically the ‘show trials’ for the offence of High Treason. I use the tragedy of Macbeth as a framework in which to investigate the themes of treason, tyranny, usurpation and regicide, concentrating on the manner in which the legal institution addressed these momentous issues of state. Macbeth was written in 1606, less than one year after the failed attempt to murder James I and the Royal Family (as well as prominent members of the Government) in the Gunpowder Plot. Central to my analysis is the subsequent trial of the plotters and references made therein to the unimaginable breach of ordo naturae, which would have eventuated had they succeeded in their attempt to assassinate an anointed king. Relevant also is the earlier trial (in 1586) of Mary Stuart, Queen of Scots, mother of the future King James I of England. Pejorative narratives of the Stuart queen’s tempestuous life may have provided inspiration for the characterisation of Shakespeare’s Lady Macbeth, a thesis that gains credibility from the depiction of Mary in George Buchanan’s imaginative account of the part played by Mary and the Earl of Bothwell in the murder of her second husband, Lord ­Darnley.63 In this chapter, I consider also the trial of Sir Walter Raleigh in 1603, which is noteworthy for legal historians insofar as it highlights issues concerning the status of evidence in treason trials of this period. I characterise the trial of Raleigh as a form of morality play, dramatising the pitiful and inevitable downfall of its tragic subject. In the final section of Chapter 2, I reflect on the significance of providential theories of kingship (as discussed comprehensively by Kantorowicz in The King’s Two Bodies) and attempt to reassess the relevance of late medieval political theology to changing perceptions of governance in Jacobean England. Prompted by the comparison made by Ronald Dworkin in Law’s Empire between the chain novel and the system of precedent in common law,64 the ­primary thesis

63  G Buchanan, Ane Detectioun of the duinges of Marie Quene of Scottes, touchand the murder of hir husband, and hir conspiracie, adulterie, and pretensed marriage with the Erle Bothwell (London, John Day, 1571). 64  ‘In this enterprise a group of novelists writes a novel seriatim; each novelist in the chain interprets the chapters he has been given in order to write a new chapter, which is then added to what the next novelist receives, and so on’: R Dworkin, Law’s Empire (London, Fontana, 1986) 229.

14 

Introduction

of Chapter 3 is that at the level of historiography the body of common law may reasonably be described as a collection of stories, linked to each other by their institutional history, and passed down by privileged storytellers or narrators. The title of The Winter’s Tale derives from a genre of stories, told around the fire to ward off the privations of winter. Traditionally, such ‘idle tales’ were unrealistic and possessed of a happy ending.65 Such is the ‘romance’ of The Winter’s Tale, in which the landlocked kingdom of Bohemia is given a coast and a desert, the god Apollo acts as witness and judge in the trial of Hermione, and the grisly death of Antigonus after his Exit, pursued by a bear (SD 3.3.57) invariably elicits uproarious laughter from the audience. The relationship between art and nature is a theme that I explore throughout Chapter 3, with reference to The Winter’s Tale. My starting point is the dialogue between Polixenes and Perdita, concerning the legitimacy of horticultural techniques, including that of grafting (4.4.79–108). The metaphor of budding scions being grafted onto existing rootstock had been of particular relevance to the business of political succession, as Elizabeth I approached the end of her reign, with no natural heir to the throne. In subsequent sections, I attempt to identify a symbolic correlation between law and horticulture, both of which enterprises, for early modern jurists and horticulturists alike, required the application of art to nature in order to produce an image of nature itself. I consider in some detail the case of Sharington v Strotton (1555–56), in which images drawn from the natural world (including allusions to the horticultural technique of grafting) were invoked by counsel for the defendant (one Edmund Plowden) in a dispute concerning an entailed interest in a manorial estate.66 Plowden’s imaginative advocacy proved successful, as the judges were unanimous in finding for the defendant. The final section of this chapter, on the arts of portraiture and politics, is related to the reappearance of Hermione (whom her husband Leontes believed to be dead), ‘standing like a statue’ (5.3.20). Leontes describes the warm-blooded ‘statue’ as ‘an art / Lawful as eating’ (5.3.110–111) because the particular aesthetic form which he apprehends appears to derive from nature itself. I consider here the relationship between law, art and kingship, by reference not to statuary, but rather to iconic royal portraiture of the late medieval and early modern periods. In Chapter 4, I turn my attention to the imagining of nationhood, and the manner in which the arts of law, poetry and theatre played a crucial role in furthering the Jacobean project of creating a unified Britain from the kingdoms of England, Wales and Scotland (in Chapter 5, I consider the status of Ireland as a colony of

65 In The Winter’s Tale, Mamillius states that ‘A sad tale’s best for winter.’ (2.1.25) In George Peele’s The Old Wives Tale, Anticke claims that ‘a merry winters tale would drive away the time trimly’, to which the Old woman replies: ‘I am content to drive away the time with an old wives winters tale’: G Peele, The Old Wives Tale (London, Raph Hancocke and Iohn Hardie, 1595) sig. B.r. The plot of The Winter’s Tale derives mainly from Robert Greene’s Pandosto, published in 1588, and Euripides’ Alcestis, written in 438 BC. The story of Pygmalion in Book X of Ovid’s Metamorphoses was a source for the ‘statue’ scene (5.3). On the reshaping of sources by Shakespeare, see W Shakespeare, The Winter’s Tale, J Pitcher (ed) (London, The Arden Shakespeare, 2010) Introduction, 93–102. 66 Plowden, Sharington v Strotton, Commentaries, 1: 298.

Introduction

 15

Jacobean England). The symbolism of the epic journey is central to my analysis of the embryonic British state, for which reason I incorporate Virgil’s Aeneid (as well as Shakespeare’s Cymbeline) into the title of the chapter: ‘Cymbeline: Empire, Nationhood and the Jacobean Aeneid’. The mythography of Troy and the associated legend of a British nation rising from the Trojan ashes is an underlying motif of this chapter. In juridical terms, the attempt by the Jacobean crown to create a British state from the separate kingdoms of England and Scotland found its apotheosis in Postnati. Calvin’s Case, heard in 1608.67 The case concerned the status under English law of an individual, born in Scotland after the accession of James VI to the English throne. Was the plaintiff an alien or a subject of English law? Such was the political and constitutional importance of this case that I dedicate most of the middle section of the chapter to its analysis, interweaving the theme of rival jurisdictions that is a central feature of Cymbeline. This chapter, more than any other in the book, is concerned with the mythical foundations of the British nation and the imaginative power of unwritten law to influence the shape of a political landscape. It is in this respect that Shakespeare presents myth in terms that Nietzsche was to describe as ‘the concentrated image of the world’.68 As Coke and his contemporary Sir John Davies noted, a law written only in the heart was better than all the written laws in the world,69 precisely because it was an imaginary phenomenon, capable of infinite interpretation and unconstrained by the inflexible boundaries of imperial edict or lex scripta. In Chapter 5, I address the theme of imperial expansion with reference to The Tempest. My intention is not to provide a post-colonial critique of Shakespeare’s last sole-authored play (written in 1610–11), but is rather to analyse the work in its contemporaneous setting, identifying the expansionist ambitions of the English legal institution as much as the more general Jacobean project of imperial conquest in Ireland and the New World.70 I return to some of the ideas explored in earlier chapters, considering these in the context of developments that had 67 

Coke, Postnati. Calvin’s Case, 7 Reports, 4: 1a. Nietzsche, The Birth of Tragedy, S Whiteside (trans), M Tanner (ed) (London, Penguin, 2003) 109. 69  J Davies (Sir), Le Primer Report des Cases & Matters en Ley resolves & adiudges en les Courts del Roy en Ireland (Dublin, Iohn Franckton, 1615) ‘A Preface Dedicatory’, sig. *2.r; Coke, Postnati. Calvin’s Case, 12b. 70  Among the vast literature on colonialism, post-colonialism, and The Tempest, see: P Brown, ‘“This thing of darkness I acknowledge mine”: The Tempest and the discourse of colonialism’, in J Dollimore and A Sinfield (eds), Political Shakespeare: Essays in Cultural Materialism (Manchester, Manchester University Press, 1994) 48–71; B Fuchs, ‘Conquering Islands: Contextualizing The Tempest’ (1997) 48 Shakespeare Quarterly 45–62; TR Griffiths, ‘“This island’s mine”: Caliban and Colonialism’ (1983) 13 Yearbook of English Studies 159–80; P Hulme, Colonial Encounters: Europe and the Native Caribbean, 1492–1797 (London, Routledge, 1992); JG Singh, ‘Caliban versus Miranda: Race and Gender Conflicts in Postcolonial Rewritings of The Tempest’ in V Traub, ML Duncan, D Callaghan (eds), Feminist Readings of Early Modern Culture: Emerging Subjects (Cambridge, Cambridge University Press, 1996) 191–209; MA Skura, ‘Discourse and the Individual: the Case of Colonialism in The Tempest’ (1989) 40 Shakespeare Quarterly 42–69. See also, Césaire’s 1969 play, Une Tempête: Aimé Césaire, A Tempest: based on Shakespeare’s The Tempest, R Miller (trans) (New York, Ubu Repertory Theatre Publications, 1992). 68 F

16 

Introduction

taken place by the time Shakespeare completed The Tempest. Foremost of these is the role played by common lawyers in the governance of the state (I develop also the theme of resistance to tyranny, which I discuss in Chapter 2 in relation to Macbeth). The Inner Temple was described by the Elizabethan lawyer Gerard Legh as an island, metaphorically washed by the inspirational waters of the ­Hippocrene.71 Legh heralded the birth of a new empire of laws in the west; a sovereign English state, independent from Rome and Roman law, which embraced rather than denied its classical forebears.72 I develop the idea of a Jacobean empire of English laws, moving from the ‘island’ of law at the Inns of Court to the colonisation of Ireland and the New World (specifically, the colony of Virginia). Of especial interest in this chapter is the idea of the island as microcosm of the state, and in a section headed ‘Utopia and the Legal Imagination’ I make extensive reference to Microcosmos: The Discovery of the Little World, with the Government Thereof, by John Davies of Hereford. Written in 1603, and dedicated to James I, Microcosmos gives the reader a useful insight into early seventeenth-century opinion on the art of government (it has parallels in this respect with Basilicon Doron and The Trew Law of Free Monarchies, both written at the end of the sixteenth century). The emphasis placed by Davies of Hereford on the importance of action and resolution to the successful ruler; and conversely, on the dangers of excessive intellectual engagement, has especial significance to The Tempest, where Prospero admits to being distracted from ‘worldly ends’ (1.2.89) by his obsession with ‘bettering of my mind’ (1.2.90). This was considered (notably, by Davies of Hereford and James I) to be a fault in a temporal ruler, and was one that cost Prospero the dukedom of Milan. In the final section of the chapter, I reflect on the response of the Jacobean legal profession to the project of imperial conquest. I consider first the description by Sir John Davies of his experience in Ireland as Attorney-General, and conclude with reference to the stylised depiction of the New World and its indigenous population, in two masques presented by members of the Inns of Court at the Banqueting House in Whitehall.

71  According to Legh, the Hippocrene ‘washte over tholde forworen Temples, dedicate to Godes, as places meete for Pallas Muses’, and the Inner Temple was an ‘Iland, wherein are the store of Gentilmen of the whole Realme, that repaire thither to learne to rule, and obeye by lawe, to yeelde there fleece to there prince and common weale’: G Legh, The Accedens of Armory (London, Rychard Tottel, 1576) ff 118.v, 119.v. 72  See P Raffield, ‘Metamorphosis, Mythography, and the Nature of English Law’ in P Goodrich and V Hayaert (eds), Genealogies of Legal Vision (London, Routledge, 2015) 79–103, 101–103.

1 ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast I.  Oratory, Empire and Common Law Sir Thomas Wilson was in no doubt about the matter: ‘For if the worthinesse of Eloquence maie moove us, what worthier thing can there bee, then with a word to winne Cities and whole Countries?’1 So begins Wilson’s The Arte of Rhetorique. In this chapter I consider the significance of rhetoric to the emergence and development of a sovereign English jurisprudence, following the Henrician Reformation of the 1530s. Wilson’s encomium to eloquence provides a clue to understanding and interpreting the early modern project of English imperial expansion in the New World, which was launched during the reign of Elizabeth I, and intensified under James I (as discussed in Chapter 5, below). I start this chapter by examining the centrality of classical, rhetorical skills to legal education at the late Elizabethan Inns of Court. The insularity and exclusivity of common law and common lawyers is a principal theme of my analysis. The ethical and scholarly shortcomings of forensic, rhetorical techniques as acquired at the Inns, were cited by Abraham Fraunce in his critique of English law, entitled The Lawiers Logike, but the failings of common lawyers were not the concern only of an intellectual elite. The Elizabethan era was a litigious age and legal disputes were enacted on a stage to which members of the public had ready access: the courts of common law at Westminster.2 With so obvious a target, it was perhaps inevitable that the English legal profession would feature to a greater or lesser extent as a subject of satire in late ­Elizabethan and Jacobean comic drama. The carnivalesque energy of the plays

1  T Wilson, The Art of Rhetorique, for the use of all such as are studious of Eloquence (London, George Robinson, 1585) ‘The Epistle’, sig. A.ii.v. In his study of the history of land ownership, Linklater quotes from the Elizabethan royal charter, which empowered Sir Richard Gilbert to claim as his own any territories that he discovered in the New World: A Linklater, Owning the Earth: The Transforming History of Land Ownership (London, Bloomsbury, 2014) 2. 2  On the expansion of the Elizabethan law courts, the rivalry between the court of Common Pleas and the court of King’s Bench, and the threat posed to the jurisdiction of these by the court of Chancery, see P Raffield, ‘The Trials of Shakespeare: Courtroom Drama and Early Modern English Law’ (2014) 8 Law and Humanities 53–76.

18  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast under discussion in this chapter is directed towards critique of a self-interested institution that appeared to abandon adherence to the Aristotelian virtue of justice and commitment to the construction of cohesive political community. Through analysis of these subversive, satirical texts, it is my intention to identify an alternative, ethical jurisprudence to that offered by traditional legal discourse, which was characterised by the self-referential, exclusive terminology of common lawyers. Following this appraisal of satirical drama, I turn from general to particular, examining the theme of satire and the law with reference to the eminent lawyer and poet Sir John Davies. I pay particular attention to his experiences while a young barrister at the Middle Temple in the 1590s, and to the satirical epigrams that he wrote on the subject of his fellow common lawyers. In the final section of this chapter I consider the ‘little academe’ in Love’s Labour’s Lost as a fictional analogue of the Inns of Court. The early history of this play is intertwined with the legal community at the Inns in the 1590s, notably with the Candlemas revels of Gray’s Inn, held between December 1594 and February 1595. In the court of Navarre, Shakespeare depicts an enclosed society of young men, for whom rhetoric is a tool with which to beguile and bedazzle, rather than an art by means of which community may be established and enhanced. The parallels with a legal academy, the primary objective of which was the assimilation and employment of self-referential rhetorical skills, are clear and compelling.

II.  Rhetoric, Method and the English Lawyer The English Lawyer is a title shared by an academic primer for law students, barristers and judges, published in 1631, and a satirical drama that was performed at the Theatre Royal, Drury Lane in 1677. The former was written by a Judge of the King’s Bench, Sir John Dodderidge; the latter by Edward Ravenscroft, a playwright. Ravenscroft adapted his play from an earlier work by George Ruggle, entitled Ignoramus, first performed in 1615 at Trinity College, Cambridge in the presence of James I. These works share not only a title, but also a theme: forensic rhetoric and its manipulation in the service of common law. Dodderidge sought to bring order and clarity to English law, the study of which in the late sixteenth and early seventeenth century was notoriously haphazard and unstructured. The scholar, poet and barrister Abraham Fraunce described legal education at the Elizabethan Inns of Court as ‘hard, harsh, unpleasant, unsavory, rude and barbarous.’ Further to this, Fraunce explained that the Law is in vaste volumes confusedly scattered and utterly undigested: so was all other learning not long agoe: yet herein blame not the Law, if it bee darke, but Lawyers themselves that had no light: blame not the Lawe, I say, which was out of order, but Lawyers themselves that never knew Methode …3 3 A Fraunce, The Lawiers Logike, exemplifying the præcepts of Logike by the practise of the common Lawe (London, Thomas Gubbin and T Newman, 1588) sigs. 2.v, 3.v. In The Interpreter (1607),

Rhetoric, Method and the English Lawyer

 19

Incorporating the metaphor of luminosity, employed in the above passage by Fraunce, Dodderidge’s The English Lawyer was originally published in 1629 as The Lawyer’s Light. This work was intended to provide a methodical basis to the study of law, thereby attempting to rectify the deficiencies identified by Fraunce more than 40 years earlier. The subtitle of The English Lawyer is ‘A Method for the managing of the Lawes of this Land’ and Dodderidge’s stated objective was to define ‘what course were most convenient to be holden for the better and more full accomplishment of that which is, and must be expected.’4 It is less a work of juristic scholarship (although in passing, the author discusses the seminal works of Glanvill, Bracton, Fortescue, St German, et al) than a rhetorical handbook for law students, barristers and judges. In this context, it may be regarded as a specialist addition to the genre of English-language rhetorical manuals that flourished in the sixteenth century. These included The Arte or Crafte of Rhetoryke (1529) by Leonard Cox, The Arte of English Poesie (1589) by George Puttenham, The Garden of Eloquence (1593) by Henry Peacham, and most notably The Art of Rhetorique by Thomas Wilson, which ran to eight editions between 1553 and 1585.5 The English Lawyer was a laudable attempt by an eminent judge to address the unscholarly use of rhetoric at the Inns of Court. The shortcomings of English legal education had been energetically attacked by Fraunce, who described common lawyers as ‘so many upstart Rabulæ Forenses, which under a prætence of Lawe, become altogeather lawlesse.’6 Dodderidge’s good intentions notwithstanding, The English Lawyer reduced the practice of law to a set of rhetorical exercises, albeit of a sophisticated type. Chapters on the requisite rhetorical skills of the lawyer (for example, ‘Of Sharpnesse of wit and judgement’, ‘Of Memory’, ‘Of ready

John Cowell described the common law as ‘darke and melancholy’; on the affronted response of Sir Edward Coke to this pejorative depiction, see Chapter 4, text to nn 88–91, below. See also, George Gascoigne: ‘Next that, he shot to be a man of lawe, / And spent sometime with learned Litleton, / Yet in the end, he proved but a dawe, / For lawe was darke and he had quickly done’, ‘Gascoignes woodmanship’ in The Posies of George Gascoigne Esquire (London, Richard Smith, 1575) 156–57. Gascoigne (a member of Gray’s Inn) was the author of two plays, performed at Gray’s Inn in 1566: Supposes and Jocasta. On the relationship between Gascoigne’s Supposes and Shakespeare’s The Comedy of Errors, performed at Gray’s Inn in 1594, see L Hutson, ‘The Evidential Plot: Shakespeare and Gascoigne at Gray’s Inn’ in JE Archer, E Goldring and S Knight (eds), The Intellectual and Cultural World of the Early Modern Inns of Court (Manchester, Manchester University Press, 2011) 245–63. 4  J Dodderidge (Sir), The English Lawyer. Describing A Method for the managing of the Lawes of this Land (London, I More, 1631) 1–2. 5 These books were intended to instil in students of rhetoric the fundamental skills that were required of the classical orator, described by Wilson as: ‘i. Invention of matter. ii. Disposition of the same. iii Elocution. iiii Memorie. v. Utteraunce’: Wilson, Art of Rhetorique, 6. Of the 20 manuals ­published in English during the sixteenth century, only four were printed more than twice: Thomas Wilson’s The Rule Of Reason (1551) and The Art of Rhetorique (1553); William Fulwood’s The Enimie of Idlenesse (1568); and Angel Day’s The English Secretorie (1586). See P Mack, Elizabethan Rhetoric: Theory and Practice (Cambridge, Cambridge University Press, 2002) 76; also, more generally, P Mack, A History of Renaissance Rhetoric 1380–1620 (Oxford, Oxford University Press, 2011). 6 Fraunce, The Lawiers Logike, sig. 4.r. For a discussion of Fraunce and the ‘failure’ of common law, see P Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London, Weidenfeld and Nicolson, 1990) 15–52; also, P Raffield, Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (Oxford, Hart Publishing, 2010) 155–56.

20  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast speech’) were followed by explanations of the derivation of words, and definitions and descriptions of legal terms. The section on equity, in which Dodderidge referred extensively to St German’s Doctor and Student (the leading work on the subject throughout the sixteenth century) was notable for the aphoristic style in which equitable principles were explained. Maxims were expressed in the form of fables. Marginal notes recorded the statute to which the relevant principle applied; the principle was then stated in law-French, followed by the English translation, as for example: (24.H.8.1.b) Si jeo mit mon chival in votre stable & vous ne voiles ceo deliver a moy, & jeo enter & enfrend votre stable, jeo sera puny pur l’entry, & le refreinder del stable, mes nemy pur le prisel del chival. If I put my horse into your stable, and you will not deliver him unto me; if I enter and breake your stable, I shall bee punished for entring and breaking the stable, but not for taking my horse.7

The word ‘conscience’ would have figured in the imagination of the reader of the above passage, as it would in any study of equity during this period. There was a subliminal connection made in these juridical fables between moral teaching (or ethics) and narrative, a relationship with which most lawyers would have been familiar through their education at grammar schools. As Peter Mack has noted, schoolboys studied Aesop’s Fables from a very early age, some schools even specifying that this was the first text to be read in Latin by pupils.8 The educational influence of neo-classical humanism is evident throughout Dodderidge’s book, and especially in the section on equity; never more so than when he cites Cicero, in support of the communitarian claim: ‘Le Common wealth est destre prefer devan ascun private wealth.’ [‘The Common wealth is to be preferred before any private wealth.’]9 The renaissance of classical rhetoric in the sixteenth century was contingent upon advances in printing technology, which facilitated the mass production of texts relevant to the general curricula of law students at the Inns of Court.10 With reference to the effect of this renaissance on the legal system in early

7 

Dodderidge , The English Lawyer, 216. Elizabethan Rhetoric, 35. On St German, see J Guy, Christopher St German on Chancery and Statute (London, Selden Society, 1985). For analysis of equity during this period, see DR Klinck, Conscience, Equity and the Court of Chancery in Early Modern England (Farnham, Ashgate, 2010); also, G Watt, Equity Stirring: The Story of Justice Beyond the Law (Oxford, Hart Publishing, 2009) 47–76. 9 Dodderidge, The English Lawyer, 218. On renaissance humanism in Tudor England, see A Fox and J Guy, Reassessing the Henrician Age: Humanism, Politics and Reform, 1500–1550 (Oxford, ­Blackwell, 1986); also, J Kraye (ed), The Cambridge Companion to Renaissance Humanism (Cambridge, ­Cambridge University Press, 1996). 10 See EL Eisenstein, The Printing Press as an Agent of Change: Communications and Cultural ­Transformations in Early-Modern Europe, 2 vols (Cambridge, Cambridge University Press, 1980). On the ritualistic form of legal education at the Elizabethan Inns of Court, see P Raffield, Images and ­Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge, ­Cambridge University Press, 2004) 20–42. 8 Mack,

Rhetoric, Method and the English Lawyer

 21

s­ ixteenth-century England, FW Maitland noted that ‘medieval books poured from the press’.11 These included works of jurisprudential importance, which hitherto had been available only in manuscript form. Maitland included in this category Littleton’s Tenures and The Old Tenures, Statham’s Abridgment and St German’s Doctor and Student; but the list extended to the political, philosophical and rhetorical texts of the ancient world: Plato, Aristotle and (especially, regarding the acquisition of rhetorical skills by early modern common lawyers) Cicero.12 The extraordinary increase in the availability of mass-produced printed texts, combined with the establishment of a sovereign English jurisprudence, following the Henrician Reformation of the 1530s, provided the means and motivation for the legal profession to expand in unprecedented manner. The institutional expansion of English law was accompanied, as Peter Goodrich has observed, ‘by a comparable discursive imperialism.’13 The symbolic heart and soul of this putative empire, pitted against the rival empires of civil law and canon law, were located at the Inns of Court. Here, technical knowledge of common law was acquired and rhetorical skills were honed. The language of English law was exclusive; it was largely ­incomprehensible to lay people, and could be interpreted only by those entrusted with a profound understanding of its arcana, derived from years of schooling. In the words of Dodderidge, the study of law ‘is the worke of many yeares, the attaining whereof will waste the greatest part of the verdour and vigour of our youth’.14 To complicate matters further, the discourse of English law was conducted in three languages: English, Latin and law-French. Following enactment of a statute in 1363 (36 Ed.3 cap.15), English replaced law-French as the language of pleadings, oral argument and disputations. While Latin was the formal language in which judgments were recorded, law-French was a bastardised and inelegant form of Norman French, unique to the quotidian practice of common law since the ­thirteenth century, and described by JH Baker as ‘the foremost of the three languages of English law’ during the period under discussion.15 Baker reminds the reader that it was Maitland who noted the paradox that common law, arguably the most robustly nationalist of all jurisprudences, ‘was hardly expressible in the national language’.16 Law-French remained a useful form of shorthand (as well as

11 FW Maitland, English Law and the Renaissance (Cambridge, Cambridge University Press, 1901) 29. 12  Dodderidge described Cicero as ‘the Prince of Oratours’: Dodderidge , The English Lawyer, 260. Gascoigne remembered in verse his acquaintance as a student with the works of classical rhetoric: ‘In Aristotle somewhat did I learne, / To guyde my manners all by comelynesse, / And Tullie taught me somewhat to discerne / Betweene sweete speeche and barbarous rudenesse.’ In the next two lines, he was less complimentary about the authors of seminal juristic texts: ‘Olde Parkyns, Rastall, and Dan Bractons bookes, / Did lende mee somewhat of the lawlesse Lawe’: ‘Gascoignes woodmanship’, 159. See G Austen, ‘Self-portraits and Self-presentation in the Work of George Gascoigne’ (May 2008) 14(1) Early Modern Literary Studies Special Issue 18: purl.oclc.org/emls/14-1/article1.htm. 13 Goodrich, Languages of Law, 71. 14  Dodderidge , The English Lawyer, 29. 15  JH Baker, ‘The Three Languages of the Common Law’ (1998) 43 McGill Law Journal 5–24, 16. 16  Quoted in ibid, 24.

22  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast being the language of juridical debate and pleading, prior to the Edwardian statute of 1363), facilitating quick and easy communication between common lawyers and judges. Davies provided the following apologia for the use of law-French: And this is the true & onely cause, why our Reports & other books of the lawe for the most part, are not sett forth in English, Latine, or the moderne french, for that the proper & peculiar phrase of the common lawe cannot bee so well exprest, nor any case in lawe bee so succinctly, sensibly, & whithall so fully reported, as in this speech, which is in deede mixte & compounded of all these three languages. Which reason hath not beene well understood by those, who obiect it as a fault to the Professors of our lawe, that, forsooth, they write their Reports and bookes of the lawe in a straunge unknowne tongue which none can understand but themselues, to the end, that the people, being keept in ignorance of the lawe, may the more admire their skill & knowledge, & esteeme & value it at a higher price.17

The linguistic limitations of law-French were obvious and the hybrid language was a source of ridicule and irritation to those who, unlike Davies, were untutored in its idiosyncrasies. Hence, Fraunce referred to the language of English law as ‘that Hotchpot French, stufft up with such variety of borrowed words, wherein our law is written’.18 In his Rede Lecture for 1901, entitled English Law and the Renaissance, Maitland insisted that there was ‘nothing better’ than the marginal note in the 1688 edition of Sir James Dyer’s Reports, which narrated the story of Sir Thomas Richardson (Chief Justice of the Common Pleas, 1626–31) being assaulted by a prisoner who, when convicted of a felony: Que puis son condemnation ject un Brickbat a le dit Justice que narrowly mist, & pur ceo immediately suit Indictement drawn per Noy envers le prisoner, & son dexter manus ampute & fix al Gibbet sur que luy mesme immediatement hange in presence de Court.19

Apart from its inherent risibility to lay readers, as instanced in the above quotation, Dodderidge (and others) noted that law-French was ‘a badge of the Norman Captivity’, and that the main objective of the statute 36 Ed.3 cap.15 was further to anglicise common law, confining the use of law-French for the most part to ‘such French Arguments as are used for exercise in the Houses, and Societies of Court and Chancery’.20 According to Davies, the least accomplished law student was able easily to master the hybrid language with minimal effort and within a short space of time: ‘the meanest witt that ever came to the study of the lawe, 17  J Davies (Sir), Le Primer Report des Cases & Matters en Ley resolves & adiudges en les Courts del Roy en Ireland (Dublin, Iohn Franckton, 1615) ‘A Preface Dedicatory’, sig. *3.v. 18 Fraunce, The Lawiers Logike, sig. 3.v. 19  J Dyer (Sir), Les reports des divers matters & resolutions des reverend judges & sages del ley (London, Samuel Keble, 1688) 188b. See Maitland, English Law and the Renaissance, 18. Obviously, the above marginal note was not included by Dyer, who had died in 1582. The title page of the 1688 edition of Dyer’s Reports includes the following explanation: ‘A que est Novelment addes mult Mille de References al plusirs Livers de Common Ley cybien Auncient come Modern ovesq; grande nombre de Cases ne unques devant Imprimeè’. 20  Dodderidge , The English Lawyer, 51.

Rhetoric, Method and the English Lawyer

 23

doth come to understand it almost perfectly within ten dayes without a Reader’.21 The statutory attempt to extricate English law from the Norman yoke palpably failed. Law-French was still used in exercises at the Inns of Court and Chancery throughout the fifteenth and sixteenth centuries. As Sir William Dugdale noted of the Grand Vacation Moots undertaken by inner barristers, these were ‘pleadyd and declared in homely Law-french’;22 but the use of this arcane (and far from homely) language extended beyond the Inns of Court and Chancery. Law-French was the language of the law reports throughout the Elizabethan period,23 and (as the above extract from the 1688 edition of Dyer’s Reports instances) it was still in widespread use in the late seventeenth century. From even the slightest acquaintance with the above, brief history of the several languages of English law, it should be obvious that common lawyers were likely to become the subjects of satirical drama in the Elizabethan and Jacobean period. The development of a dramatic genre that enthusiastically mocked the venality of lawyers may be understood partly as an expression of public resentment at the failure of an emergent, secularised legal profession to live up to its promise in the post-Reformation world as the rational and incorruptible successor to a degraded priesthood, whose members had previously fulfilled the roles of advocates and legal advisers.24 Much later, Jeremy Bentham was to argue that theology had provided the bogus intellectual foundations for theories of natural rights, which he famously condemned as ‘rhetorical nonsense,—nonsense upon stilts’.25 In which case, the Henrician ban on the teaching of canon law,26 and statutory recognition of the professional status of barristers, should have gone some way to enabling the emergence of a rational, secular legal system. As Max Weber noted, the idea of a vocational calling or ‘life-task’ was conterminous with the Reformation. It is an idea 21 Davies, Le Primer Report, ‘A Preface Dedicatory’, sig. *3.v. According to Prest, students at the Inns of Court attained mastery of law-French in ‘no more than ten to a mere two days’: WR Prest, The Rise of the Barristers: A Social History of the English Bar 1590–1640 (Oxford, Clarendon Press, 1991) 109; see also, JH Baker, Manual of law-French (Amersham, Avebury, 1979). 22  W Dugdale (Sir), Origines Juridiciales, or Historical Memorials of the English Laws (London, F and T Warren, 1666) 193. 23  See for example, the Reports of Edmund Plowden, published in 1571 as: Les comentaries, ou les reportes de Edmunde Plowden vn apprentice de le comen Ley, de dyuers cases esteantes matters en ley, & de les Argumentes sur yceux, en les temps des Raygnes le Roye Edwarde le size, le Roigne Mary, le Roy & Roigne Phillipp & Mary, & le Roigne Elizabeth. In Ædibus Richardi Tottelli, Octobris. 24. 24  Brand notes that ‘From Henry II’s reign to the end of the thirteenth century, kings regularly recruited trained canon lawyers and trained Roman lawyers for their service and on occasion employed them among their judges’: P Brand, The Origins of the English Legal Profession (Oxford, Blackwell, 1992) 155. In the reign of Henry II, those of the king’s judges in holy orders included: Master Jocelin, Archdeacon of Chichester; Richard Barre, Archdeacon of Ely; Master Simon (later Bishop of Norwich), ibid. On the Ordinance of 1292, which prohibited members of the clergy from acting as pleaders in secular actions, see Raffield, Images and Cultures, 12. 25  The full quotation reads: ‘Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense,—nonsense upon stilts’: J Bentham, ‘Anarchical Fallacies; being an examination of the Declaration of Rights issued during the French Revolution’ (1843) in J Waldron (ed), ‘Nonsense upon Stilts’: Bentham, Burke and Marx on the Rights of Man (London, Methuen, 1987) 46–76, 53. 26 See HR Helmholz, Roman Canon Law in Reformation England (Cambridge, Cambridge University Press, 2004) 35, 153.

24  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast that was articulated with especial clarity by Martin Luther, for whom application to a particular ‘calling’ represented the expression of brotherly love.27 Instead, the secularised legal profession became increasingly introspective and insular, cocooning itself within the protective walls of the Inns of Court while seeking an expansionist role in the governance of the state. In short, the secularisation, standardisation and self-regulation of the legal profession were concomitant with self-interest and self-aggrandisement. The legal education that was provided by the early modern Inns of Court, with its emphasis on the development of rhetorical skills and the acquisition of technical knowledge through the repetition of oral exercises, created a class of lawyers to whom ethics were at best of intellectual interest only and at worst irrelevant. Goodrich attributes the ethical vacuum in which lawyers at the end of the ­sixteenth century practised their craft to this ‘spuriousness of legal learning’.28 Also, it appears that the self-proclaimed ‘virtue’ of common lawyers in the early modern period related more directly to the acquisition of personal wealth than it did to a particular code of moral conduct. Sir George Buck (Master of His ­Majesty’s Office of the Revels, and a Middle Templar), for example, asserted that lawyers, ‘chiefely by their due serving of God (who is the only and best rewarder of vertue, and honest industry) get much wealth … and become rich, and famous.’29 And for all the emphasis the Elizabethan lawyer, jurist and poet William Fulbecke placed on the central importance of ‘true knowledge, and feare of God’ to the aspiring lawyer, the rewards of a successful career at the Bar were of a distinctly temporal nature, described by him as ‘dignitie, credit, and ample fortune.’30 The twin commodities of virtue and wealth were conflated to imply the unassailable probity of an altruistic profession, but the truth sat uncomfortably with the preferred image. The archetype of the virtuous lawyer, selflessly serving God and his fellow man, was distinctly at odds with the perception held by many of a legal profession the members of which were predisposed toward self-interest and greed. Lawyers in this period were highly conspicuous, not only in and around the Inns of Court but at the playhouses on the south bank of the Thames. Thomas Dekker noted the attendance of lawyers—‘the Templer’—who had made the short boat ride across the river to Southwark’s Bankside, situated opposite the Temple.31 ‘Why this going to a play is now all in the fashion’, explains one of the lawyers in John Marston’s Histrio-Mastix Or, The Player Whipt!32 In this play, Marston 27  M Weber, The Protestant Ethic and the Spirit of Capitalism, T Parsons (trans) (London, Routledge, 2001) 39–41. 28 Goodrich, Languages of Law, 22. 29  G Buck (Sir), ‘The Third Universitie of England’ in J Stow, The Annales, or Generall Chronicle of England (London, T Adams, 1615) 975. 30  W Fulbecke, A Direction or Preparative to the Study of the Lawe (London, T Wight, 1600) sigs. C.2.r, C.v. 31  T Dekker, The Guls Horne-booke (London, RS, 1609) 28; on the social range of audiences for public performances of plays during this period, see A Gurr, The Shakespearean Stage, 1574–1642 (Cambridge, Cambridge University Press, 1992) 212–22. 32  J Marston, Histrio-Mastix Or, The Player Whipt! (London, T Thorp, 1610) (1.1) sig. B.v.

Rhetoric, Method and the English Lawyer

 25

c­ reated the roles of Fourcher and Vourcher, two members of the Inns of Court who fulfilled the adjectival stereotype of lawyers as venal, mendacious and avaricious. At the first entrance of Fourcher and Vourcher, the character of Pride exclaims: ‘O these be Lawyers! Concords enemies’, before enjoining them to ‘use your wisdome to enrich your selves’.33 It is noteworthy that Marston was the son of a successful lawyer and member of the Middle Temple. His father, John, became a Reader at the Middle Temple in 1592. John Marston junior was admitted to the Inn in 1595, after graduating from Brasenose College, Oxford. He was never called to the Bar, much to the regret of his father. In his will, Marston senior lamented the reluctance of his son to enter the legal profession, as the following passage testifies: To my second son John my furniture &c. in my chambers in the Middle Temple my law books &c. to my second son whom I hoped would have profited by them in the study of the law but man proposeth and God disposeth …34

Marston junior shared chambers with his father until the latter’s death in 1599, after which (according to the record of a Middle Temple Parliament held on 8 ­February 1600), ‘Mr. John Marston was readmitted to the chamber to which his father was lately admitted with Mr. Haule’.35 In his biography of Marston, Philip J Finkelpearl argues convincingly that ­Histrio-Mastix was first performed in the winter of 1598. This seems likely when the play is read in the context of the 1598 ban on unlicensed companies of actors (An Acte for Punishment of Rogues Vagabondes and Sturdy Beggars (39 Eliz. cap.4)), as it is just such a troupe of players that makes up one group of characters in the play: ‘Sir Oliver Owlet’s men’. It is probable that the play was first performed at one of the Inns of Court during the Candlemas revels of 1598–99. It was not performed in any of the public playhouses at this time. The topical subject matter of rebellion and the satirical treatment of this theme by Marston was highly contentious and it would not have been licensed for performance.36 The main reason for supposing Histrio-Mastix to have been performed at one of the Inns of Court was the size of the cast, which was somewhere in the region of 120. Marston’s intimate links with the Middle Temple makes this the most likely venue—with about 150 inner barristers at this time, it was able to provide the manpower required to fill the cast.37 But the satirical treatment of lawyers is a peripheral theme in Histrio-Mastix, the topical plot of which is principally concerned with the civic rebellions of the 33 Marston, Histrio-Mastix, (3.1)

sig. D.v. in PJ Finkelpearl, John Marston of the Middle Temple: An Elizabethan Dramatist in His Social Setting (Cambridge, Mass, Harvard University Press, 1969) 84. For an abstract of the will, see AB Grosart (ed), The Poems of John Marston (Manchester, Manchester University Press, 1879) x–xi. 35  CH Hopwood (ed), Calendar of the Middle Temple Records, 4 vols (London, Butterworth, 1904) 1: 401. 36  On the regulation of Elizabethan theatre, see R Dutton, Mastering the Revels: The Regulation and Censorship of English Renaissance Drama (London, Macmillan, 1991). 37 Finkelpearl, John Marston, 119–22. See also, GL Geckle, John Marston’s Drama: Themes, Images, Sources (New Jersey, Fairleigh Dickinson University Press, 1980), 34; TF Wharton (ed), The Drama of John Marston: Critical Re-Visions (Cambridge, Cambridge University Press, 2000) 30–31; A Caputi, John Marston, Satirist (Ithaca, New York, Cornell University Press, 1961). For the argument that 34  Quoted

26  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast 1590s.38 Marston chose humorously to indulge the specious rhetoric of the two lawyers, Fourcher and Vourcher, rather than attack it as symptomatic and emblematic of a defiled and ignorant legal profession. Marston was hardly a disinterested observer and critic of the legal profession, and his own self-interest is likely to have prevented him from an unrestrained polemic directed at the institution in whose heart he resided. No such informal, institutional constraints on the polemical power of satire applied to John Day, whose Law-Trickes or, Who Would Have Thought It was first performed by the Children of the Revels in 1604.39 In this work, Day poked fun at the absence of scholarship that characterised legal education at the Inns of Court. Day’s signal contribution to the genre was memorably to differentiate between the ideal of law, upon which the polity of every just state should be based, and the ­quotidian baseness of legal practitioners. The character of Polymetes, son to the Duke of Genoa, describes the law in Aristotelian terms, articulating the link between law, order, and community: ‘tis divine: / And ile compare it to a golden chaine, / That linkes the body of a common-wealth, / Into a firme and formall Union.’40 Despite this solemn affirmation of law as the primary unifying factor in the just governance of the state, the venality of lawyers is derided throughout the play, self-interest contrasting vividly with the ideal of justice that their calling suggests they should promote. The following lines of fantastical dialogue reflect a popular belief that lawyers had betrayed their sacerdotal role,41 succumbing instead to the deadly sins of pride, gluttony and avarice: ADAM:  I knew one of that facultie in one terme eate up a hole Towne, Church, Steeple and all. JULIO:  I wonder the Bels rung not all in his belly. ADAM:  No sir, he solde them to buy his wife a Taffety Gowne, and himselfe a velvet Jacket.42

Dekker commented, with an exuberant stylistic flourish, that ‘Good Cloathes are the embrodred trappings of pride, and good cheere the very Eringo-roote of gluttony: so that fine backes, and fat bellies are Coach-horses to two of the seven Histrio-Mastix was performed at the Middle Temple revels of 1599–1600, in response to an early performance of Shakespeare’s Troilus and Cressida at the Middle Temple during the revels of 1598–99, see JL Hotson, ‘Love’s Labours Won’ in Shakespeare’s Sonnets Dated (London, R Hart-Davis, 1949) 37–56. 38 

On rebellion and Histrio-Mastix, see Raffield, Shakespeare’s Imaginary Constitution, 150–52. the probable date of its first performance, see EK Chambers, The Elizabethan Stage, 4 vols (Oxford, Clarendon Press, 1967) 3: 285–86. 40  John Day, Law-Trickes or, Who Would Have Thought It. As it hath bene divers times Acted by the Children of the Revels (London, Richard More, 1608) (Act 1) sig. B.v. On depictions of common lawyers in early modern drama, see EFJ Tucker, Intruder into Eden: Representations of the Common Lawyer in English Literature 1350–1750 (Columbia, SC, Camden House, 1984). 41  ‘We, who are the Ministerial Officers, who sit and preside in the Courts of Justice, are therefore not improperly called, Sacerdotes (Priests): The Import of the Latin Word (Sacerdos) being one who gives or teaches Holy Things’: J Fortescue (Sir), De Laudibus Legum Angliae, J Selden (ed) (London, R Gosling, 1737) 4–5. 42 Day, Law-Trickes, (Act 2) sig. C.3.v. 39  On

Rhetoric, Method and the English Lawyer

 27

deadly sins.’43 In representing an insuperable, ethical gulf between law and lawyers, Day appears to articulate a pre-Kantian dilemma, in which moral law and individual desire are polarised and (at least in the fictive world of Law-Trickes) incompatible. The lawyers of Day’s drama lack any sense of obligation or duty. They act without rationality and therefore, in Kantian terms, cannot be described as free, autonomous subjects.44 In Law-Trickes, Polymetes is ‘A parlous youth, sharpe and sattyricall, / Would a but spend some study in the law, / A would prove a passing subtle Barrister.’ Polymetes is distinguished from most lawyers because ‘a speakes Latin too, / Truly and so few Lawyers use to doe.’45 Those barristers who had not undergone a scholarly, classical education are described by the same character as ‘lackeLatin Advocates’.46 The audience gets the point, but the playwright does not take the opportunity to represent the object of his scorn, the common lawyer himself. As EFJ Tucker has noted, the law-Latin of common law writs had not changed since the medieval period. It required of the common lawyer only the most basic grounding in the Latin language, because the Latin of the English courts was ­formulaic and debased.47 Often, words of Norman origin were latinised, as the following extract from a writ of right patent (Præcipimus Tibi) demonstrates: Præcipimus tibi quod sine dilatione plenum rectum teneas A. de B. de uno mesuagio et ­viginti acris terrae cum pertinentiis in I., quae clamat tenere de te per liberum servitium unius denarii per annum, pro omni servitio, quod W. de T. ei deforciat.48

In the above example, mesuagio and acris (translated into English, respectively as ‘messuage’ and ‘acres’) are latinised versions of words whose linguistic origins are French (‘mesure’ and ‘acre’). Obviously, those lawyers who graduated from Oxford or Cambridge prior to studying at the Inns of Court would have had a more comprehensive knowledge of Latin than inner barristers who had not attended either of the universities. By no means all members of the Inns had enrolled at Oxford or Cambridge prior to embarking on their legal studies. According to a survey conducted by Wilfrid R Prest, only slightly more than half of all barristers between 1590 and 1640 had attended either Oxford or Cambridge.49 Dodderidge acknowledged that there had been many great English lawyers, who were ‘of deepe j­udgement … and yet no Schollers at all’,50 but he saw the advantages of a u ­ niversity education in 43 Dekker, The

Guls Home-Booke, 6. See H Staten, ‘The Deconstruction of Kantian Ethics and the Question of Pleasure’ in P Goodrich and DG Carlson (eds), Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence (Ann Arbor, University of Michigan Press, 1998) 53–73. 45 Day, Law-Trickes, (Act 1) sigs. A.4.v, B.r. 46  ibid, (Act 1) sig. B.v. 47  EFJ Tucker, ‘Ruggle’s Ignoramus and Humanistic Criticism of the Languages of the Common Law’ (1977) 30 Renaissance Quarterly 341–50, 344. 48  ‘We command you that without delay you do full right to A. of B. in respect of one messuage and twenty acres of land with the appurtenances in J. which he claims to hold of you by the free service of one penny a year for all service, and of which W. of T. deforces him’, quoted in JH Baker, An Introduction to English Legal History (London, Butterworths, 2002) 538, 539. 49  The exact figure given, of barristers who attended either Oxford or Cambridge as students, is 54.8 per cent: Prest, Rise of the Barristers, 112. 50 Dodderidge, English Lawyer, 28. 44 

28  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast the liberal arts. Those lacking the tenets of logic and rhetoric, the twin foundations of humanist education at the universities, were (he wrote) wanting in ‘perspicuity and brevity, their arguments although deeply learned and full of excellent matter, yet have oftentimes beene tedious, confused and perplexed’.51 A similar argument had been propounded by Sir Thomas Elyot a hundred years earlier in The Boke Named the Governour. Whilst claiming that he did not intend to reproach lawyers for their lack of learning, Elyot was emphatic that the commonwealth would be the ultimate beneficiary were young men to attend Oxford or Cambridge prior to embarking on their legal studies at the Inns of Court: I thinke verily if children were brought uppe as I have written and continually were retayned in the right study of very philosophy untyll they passed the age of xxi. yeres and than set to the lawes of this realme (being ones brought to a more certayne and compendiouse studie and either in englisshe/latine/or good french written in a more clene and elegant stile) undoughtedly they shuld become men of so excellent wisedom that throughout all the worlde shulde be founden in no commune weale more noble counsaylours …52

His criticism may have been muted, but it is fair to infer from the above quotation that Elyot shared the opinion of many that most common lawyers lacked erudition, in whichever language they chose to speak. This impression notwithstanding, it was not until George Ruggle wrote Ignoramus in 1615 that an English common lawyer (the eponymous, comic anti-hero of the play) was to be depicted in a leading dramatic role as an ill-educated, risible charlatan. Ignoramus belonged to the dramatic genre known as ‘academic plays’: dramatic entertainments, usually but not always written in Latin, performed at the Universities of Oxford and Cambridge by members of their respective colleges.53 Ignoramus is unique among academic plays, both for its longevity and its commercial success. It was first staged in Hall at Trinity College, Cambridge, on 8 March 1615 in the presence of James I. The King enjoyed the play so much that despite its excessive length he requested a second performance, which he attended on 13 May 1615.54 The play was published in 1630 under the title, Ignoramus Comœdia coram Regia Maiestate Iacobi Regis Angliae, &c. and ran to several editions. It went on to enjoy a life on the

51 

ibid, 31. Elyot (Sir), The boke named the Governour (London, Tho Bertheleti, 1531) fo 55.r. In the ­sixteenth century, undergraduates often matriculated long before the age of eighteen. For example, the poet and courtier Philip Sidney (b 1554) was enrolled as a member of Gray’s Inn at the age of 12. He was admitted to the Inn during the Candlemas revels of 1566/67. In February 1568, aged 13, he started his undergraduate career at Christ Church, Oxford. See K Duncan-Jones, Sir Philip Sidney: Courtier Poet (London, Hamish Hamilton, 1991) 39, 47–48. 53  Examples of academic plays of this period include Richardius Tertius by Thomas Legge (1579) and Bellum Grammaticale by Leonard Hutten (1581); see Chambers, The Elizabethan Stage 4: 350, 407–408. On the genre of academic plays, see FS Boas, University Drama in the Tudor Age (Oxford, Clarendon Press, 1914). 54  John Chamberlain wrote that the play ‘was full of mirth and varietie … but more than halfe marred with extreme length’: quoted in AH Nelson (ed), Records of Early English Drama: Cambridge, 2 vols (Toronto, University of Toronto Press, 1989) 1: 540. 52  T

Rhetoric, Method and the English Lawyer

 29

London stage, when it was adapted by Edward Ravenscroft and produced at the Theatre Royal in 1677 as The English Lawyer. Ruggle’s Ignoramus is a well-crafted farce with a classical comic structure. The plot derives from both La Trappolaria (1596) by Giambattista Della Porta and Pseudolus by Plautus. Ruggle, a Fellow of Clare College, wrote most of the play in Latin, with a smattering of French (the play is set in Bordeaux) and English: this at least, according to the first published edition of the play. A contemporary account records the play as ‘Ignoramus ye Lawyer latine and part english’.55 The convoluted narrative, involving the thwarted attempts of an impecunious young man Antonius to marry his beloved Rosabella (the ­Moroccan ‘ward’ of a Portuguese merchant), whom her ‘guardian’, the pander Torcoll, has resolved will marry the English lawyer Ignoramus (engaged on business in Bordeaux), serves as an improbable but highly effective farcical framework for a play whose central theme is the misuse of language and specifically its misuse by common lawyers. The following is a typical example of the macaronic gibberish, spoken throughout by the English lawyer: IGNORAMUS: Fy, Fy; Tanta pressa, tantum Croudum, utsui penè trusus ad mortem; Here is so great a presse, so great a Crowd, that I am even thrust to death. I will have an Action of Intrusio against all and every one of them: Aha Mounsiers, will you thrust par joinct Tenaunt. It is a plain Case, Il est point droite de la bien seance, I sweat extremely …56

Such were the reverberations of Ignoramus beyond Cambridge that the play was supposed to have caused offence at the Inns of Court. It was reported that the Chief Justice of the King’s Bench, Sir Edward Coke, was angered by the attack on his fellow lawyers (the character of Ignoramus was supposed to have been based on the Recorder of Cambridge, Francis Brackyn).57 Contemporary, anecdotal evidence of Coke’s displeasure was recorded by John Chamberlain, who wrote to his friend Sir Dudley Carleton that Ignoramus hath so netled the Lawiers that they are almost out of all patience, and the Lord cheife Iustice, both openly at the Kings bench and divers other places hath galled and glaunced at schollers with much bitterness, and there be divers ynne of court men have made rimes and ballades against them …

Regarding any offence taken by the lawyers, Chamberlain was dismissive: ‘they are too partiall to thinck themselves so sacrosancti that they may not be touched.’58 After the second performance in the presence of the King a member of the audience wrote that ‘a post’ galloped into Cambridge, leapt onto the stage, and ‘commanded the Comedians to forebeare, for that my Lord cheif Iustice Was 55 

Dering Manuscript CUL: Add 2677 (Art 1) fo 3*, quoted in Nelson (ed), Cambridge, 1: 538. G Ruggle, Ignoramus: A Comedy As it was several times Acted with extraordinary Applause, Before The Majesty of King James, R Codrington (trans) (London, W Gilbertson, 1662) (1.3) sig. D.2.r–sig. D.2.v. 57  Tucker describes Brackyn as ‘a constant adversary of the university’: Tucker, ‘Ruggle’s Ignoramus’, 341. 58  Quoted in Nelson (ed), Cambridge, 1: 542. For instances of the ‘rimes and ballades’, written by members of the Inns of Court, in response to Ignoramus, see ibid, 2: 873–78. 56 

30  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast enformed that they had made a knavish peice of worke to disgrace the Lawyers’. At this, the King was supposed to have risen from his seat and said to the actors: ‘Goe on Goe on, I Will beare you out.’59 The above account was written in 1634, nearly 20 years after the event, so the narrator may have forgotten that the intervention of the post-boy was a staged event, rather than a real one. In honour of the King’s appearance at the second performance of the play on 13 May 1615, a prologue was written, which included the startled entrance of a post-boy, who exclaimed: ‘veredarius ego sum, Londino huc qui vobis missus ut renuntiem, quod iam IGNORAMUS nec agitur, nec potest agi’ [‘I am a post dispatch, from London hither to inform you that Ignoramus neither is, nor can be acted’].60 No reference was made in the prologue to the displeasure of the Lord Chief Justice, although it seems that the prologue to the second performance was written in response to reports of annoyance at the Inns of Court following the first performance in March 1615. There are allusions in the play to the Inner Temple, of which Coke was a member. The character of a talking horse (described as Musarum Caballus: the Horse of the Muses) informs the audience that ‘I have washed my mouth in the Cabal’in Fountain, and well can sing a pegaseian melody’.61 The ‘Cabal’in Fountain’ is the Hippocrene, the sacred stream on Mount Helicon, formed by the hooves of the mythical horse Pegasus: since the early 1560s, Pegasus had been the institutional emblem of the Inner Temple.62 Also, Ignoramus refers to the writ of Habeas ­Corpus: ‘Oh that I had one Habeas Corpus now, Ha, he.’63 Throughout his tenure as Chief Justice of the Common Pleas (from 1606 to 1613), Coke had played a central role in confounding the efforts of the Ecclesiastical Court of High ­Commission to imprison subjects indefinitely and without justification or explanation. The ­juridical instrument despatched from the courts of common law to demand explanation from the imprisoning tribunal for incarceration of subjects was the writ of Habeas Corpus.64 This possible allusion aside, there is no direct reference to Coke in Ignoramus. Nor is there any indisputable, documentary evidence that Coke was offended by the pejorative depiction of common lawyers in Ruggle’s play. He had, after all, been a student at Trinity College, Cambridge, and so would have been ­familiar

59 

Quoted in ibid, 2: 862–63. G Ruggle, Ignoramus Comœdia coram Regia Maiestate Iacobi Regis Angliae, & c (London, IS, 1630), Prologus Posterior. Ad secundum Regis adventum habitus, 7; Codrington (trans), Ignoramus, ‘The Second Prologue spoke before the KING. May 6. 1615’, sig. B.3.v. 61  ibid, (1.1) sig. B.3.r. 62  See P Raffield, ‘The Inner Temple Revels (1561–62) and the Elizabethan Rhetoric of Signs: Legal Iconography at the Early Modern Inns of Court’ in J Archer, E Goldring and S Knight (eds), The Intellectual and Cultural World of the Early Modern Inns of Court (Manchester, Manchester University Press, 2011) 32–50, 34–36. 63  Codrington (trans), Ignoramus, (1.4) sig. E.r. 64  For historical analysis of Habeas Corpus, see PD Halliday, Habeas Corpus: From England to Empire (Cambridge, Mass, Belknap Press, 2010). On Coke, the Ecclesiastical Court of High Commission and the writ of Habeas Corpus, see Chapter 4, text to nn 92–122, below. 60 

Rhetoric, Method and the English Lawyer

 31

with the rumbustious and satirical form of academic plays.65 Of greater relevance to contemporaneous political and juridical debate was that Cambridge was the location in which Ruggle mocked the practice of common law. The university town might reasonably have been described as the adopted home of civil law in ­England. Until his resignation in May 1611, John Cowell, the outspoken critic of common law and apologist for the introduction of the civilian code into English law,66 had been Regius Professor of Civil Law at Cambridge. The perceived predilection of James I for the civilian jurisdiction of his native Scotland remained a source of suspicion and contention for those convinced that he was embarked on a path to absolutism.67 It is noteworthy in this respect that the English translation of Ignoramus by Robert Codrington (published in 1662) was prefaced by a statement that sought to deny any ill intention on the part of its original author George Ruggle towards the common law: The Translator’s Advertisement to the Ingenious Readers. Who are to understand that the intent of our Author in the Originall, was no wayes to traduce the Reverend Authority of the English Laws, nor any of the Honourable, or other subordinate professors of them, but only to reflect on those persons who being possessed with as much Impudence as Ignorance, doe pretend to the highest knowledge of the Laws, when indeed they deserve not the appellation of Apprentices therein. If the Latine tongue were ever the Language of the Beast, it is in the Mouths of these persons. In the English Translation we have all along inserted the Latine Barbarismes, not only to render these Solœcismes to be the more abandoned and ridiculous, but withall to satisfie the method of Ingenuity, which is to give Light as well as Delight unto her Readers.68

As Codrington noted, Ruggle was not satirising the law itself, but rather he was attacking the meretricious use of language by those who professed knowledge of the law, but were wanting in genuine scholarship. Coke had written extensively about the use of law-Latin in his report of James Osborn’s Case (1613), less than two years before the first performance of Ignoramus. At the thematic heart of the case was the issue of words and their meaning in a juridical situation. More specifically, the case exemplified the problems of

65  Brinkley argues that, following the performance of Ignoramus in 1615, Coke was ‘irate’ because ‘Ignoramus was costumed as Coke with even his beard cut like Coke’s, so that the satire was very obvious’: RF Brinkley, Arthurian Legend in the Seventeenth Century (London, Frank Cass, 1967) 36. Aubrey wrote of the same performance: ‘they dressed Sir Ignoramus like Chief Justice Coke and cut his beard like him and feigned his voice’; ‘Sir Edward Coke, 1552–1634’ in J Aubrey, Brief Lives (London, Folio Society, 1975) 84. On Coke’s antipathy towards actors, see Introduction, n 13, above. 66  See J Cowell, The institutes of the lawes of England digested into the method of the civill or imperiall institutions, WG (trans) (London, Jo Ridley, 1651). 67  On Cowell and the clash of jurisdictions during the reign of James I, see Chapter 4, text to nn ­82–122, below. 68 Codrington (trans), Ignoramus, ‘The Translator’s Advertisement to the Ingenious Readers’, unpaginated. The title page included the following note: ‘With a Supplement which (out of respect to the Students of the Common Law) was hitherto wanting’.

32  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast interpretation that beset a legal system the processes of which were conducted in at least two languages simultaneously (law-Latin and English), and when one of those languages (law-Latin) contained numerous words and phrases unknown to the language from which it derived (Latin). The case concerned the purchase by the plaintiff of a bed: unum fulcri lecti, translated in the writ of assumpsit issued by the plaintiff as ‘a field bedstead with a testern and curtain’.69 Later in the same report, Coke explained that where the Latin used was unknown to grammarians and scholars of that language, but was known ‘to the sages of the law’,70 then such law-Latin was valid and (according to Coke) legitimised by the statute of 1363 (36 Ed.3. cap.15), which intended to anglicise court proceedings. Where such words were ‘no Latin’, but had ‘the countenance of Latin’, he suggested that ‘it is wisely done’ to add the word Anglicè, followed by the English translation.71 Hence, in James Osborn’s Case: ‘unum fulcrum lecti, (a) Anglicè a field bedstead with a testern and curtain of say’. At first instance, judgment was given for the plaintiff, after which the defendant issued a writ of Error. The problem at issue was whether the above English translation was an accurate version of the original law-Latin. The defendant argued that unum fulcrum lecti referred only to the bedstead itself, and not to the testern [tester] and curtains as well. The facts of the case were trivial, concerning a quotidian issue: the purchase of a bed and its accoutrements. But the problem that Coke unintentionally highlighted was that it was the judges themselves who determined the meaning of words and phrases which, as he conceded, were ‘not allowed by grammarians, nor having any countenance of Latin’, as well as in cases where the language was ‘false Latin, or no Latin’. In other words, the law was a law unto itself. Coke was singularly unconcerned about the misuse of language by the courts. As he stated, false Latin in a judicial writ, count, pleading or judgment could always be amended subsequently.72 Given this tacit support for the linguistic infelicity and grammatical impurity of much juridical discourse, it is unsurprising that the practice of common law was derided with such enthusiasm by Ruggle and subsequently in his adaptation of Ruggle’s play by Edward Ravenscroft. The English Lawyer by Edward Ravenscroft was presented at the Theatre Royal, Drury Lane, in 1677. In the Prologue to the 1678 edition of the play, Ravenscroft acknowledged Ruggle’s original play: ‘This was a Cambridge piece, there first / Brought forth’. He went on to inform readers that the primary source of comedy in the play was the adulterated language of common law: ‘in th’ Lawyers Latine

69  James Osborn’s Case in Part 10 (1614) of The Reports of Sir Edward Coke, Knt. In English, G Wilson (ed), 7 vols (London, Rivington, 1777) 5: 130a. For a discussion of this case in the context of Ruggle’s play, see Tucker, ‘Ruggle’s Ignoramus’, 347–48. 70  Coke gives as examples the following terms: ‘messuagium, toftum, gardinum, bruera, jampna, maremium’, Coke, James Osborn’s Case, 133a. 71  ibid, 133b. Coke gives the example of ‘operimentum, Anglicè a rug, there being no Latin word for a rug.’ Operimentum translates literally as a ‘covering’ or ‘lid’. 72  ibid, 133a.

Rhetoric, Method and the English Lawyer

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lay the jest.’73 That a play with this narrow theme should have been a commercial success at the Theatre Royal, Drury Lane, was perhaps surprising, but it is indicative of extensive lay interest during the seventeenth century in the arcane practices of the legal profession. The translation into English of numerous law reports and their distribution by commercial publishers throughout the 1650s suggests that there was a popular readership for juridical arcana beyond the confines of the Inns of Court. For example, in 1651 Matthew Walbancke and Henry Twyford published a collection of reports from the early seventeenth century (gathered by the Chief Protonotary of the court of Common Pleas, Richard Brownlow), including judgments of Coke, Warburton, Walmesley, Yelverton and Dodderidge. The title page of this edition included the following testimony, apparently aimed at an educated, lay public: ‘Very beneficiall for all such who are Studious to know LAW, in its Power, Act, and Limitation’.74 In the theatre, The English Lawyer may have played a small part in disseminating knowledge to ‘such who are Studious to know LAW’. The non-lawyers in the audience of The English Lawyer probably harboured little or no desire to ‘know LAW’ in its technical sense, but the success of the play suggests that they were curious to understand why the language of law was unintelligible and impenetrable. Ravenscroft was undeterred from using the hybrid language of English law to ridicule Ignoramus. The following four lines of nonsensical dialogue between the lawyer and his clerk Dulman manage to incorporate each of the three languages of common law: IGNORAMUS:  Fy, fy; where are my Clerks? Dulman! Dulman! DULMAN:  Here, Master, here. Vous avez Dulman. IGNORAMUS:  Meltor, Dulman, meltor: rubba me cum Towallio, rubba. Rub me with a Towel, Dulman; I am melted to death.75

In the mouths of common lawyers, the language of scholarship and reason (Latin) transmuted into the nonsensical language of falsehood and irrationality (lawLatin). It is a mark of Ravenscroft’s confidence in the erudition of his audience that he not only made jokes in Latin, but that the content of the jokes often concerned technical phrases usually understood only by lawyers. For example, as part of his ludicrous and lewd efforts to woo Rosabella (Ignoramus has paid six hundred crowns in consideration of Torcall’s consent that Rosabella should return to England with Ignoramus and marry him), Ignoramus composes an obscene love-poem in honour of his inamorata, including the line, ‘Et dabo Fee-Simple,

73 

E Ravenscroft, The English Lawyer; A Comedy (London, James Vade, 1678) sig. A2.r. R Brownlow, Reports: (a second part.) of diverse famous cases in law, as they were argued, as well upon the bench, by the reverend and learned judges, Coke, Flemming, Hobard, Haughton, Warburton, Winch, Nicholls, Foster, Walmesley, Yelverton, Montague, Dodridge, and diverse others (London, Matthew Walbancke and Henry Twyford, 1651) title page. 75 Ravenscroft, The English Lawyer, (1.1) 2–3. 74 

34  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast si monstres Love’s pretty dimple,’ which he translates for her benefit as: ‘I’ll give thee my Fee-Simple, If thou’lt show thy Love’s pretty dimple.’76 The plot of The English Lawyer is convoluted and formulaic, incorporating conventional farcical devices of disguise, deceit and mistaken identity. But the single theme to emerge most clearly from the contrived theatrical tricks employed by Ravenscroft (and Ruggle before him) is the unethical use of forensic rhetoric. In the previous century, Abraham Fraunce had levelled the same charge against common lawyers. Ruggle and Ravenscroft made only passing reference to the misery caused litigants by the protracted, incomprehensible practices of English law. When a character introduces himself to Ignoramus as ‘A poor man, Sir, that hath spent all his Estate in Law,’ he is shunned by the lawyer: ‘Oh, oh, In forma pauperis; abi via, abi via; away, go.’77 More than two centuries after Ruggle’s original play was performed at Cambridge, the thesis that litigation enriched lawyers but impoverished and destroyed litigants was fully developed by Charles Dickens in Bleak House. He coined a neologism to describe the exploitative, self-interested, and incomprehensible world of the English legal profession: ‘Wiglomeration’.78

III.  Our English Martiall: John Davies of the Middle Temple Among the more scurrilous entries recorded in his Diary by the late Elizabethan Middle Templar John Manningham is the following description of the barrister, poet, and future Chief Justice of the King’s Bench, John Davies: ‘Jo. Davys goes wadling with his arse out behinde as though he were about to make every one that he meetes a wall to pisse against.’79 Not the most sophisticated of put-downs, but we get the point: John Davies was a young man of unprepossessing physical appearance. The above passage was considered to be so shocking by John Bruce, editor of a Victorian edition of the Diary of John Manningham, that it was ‘omitted on account of its grossness’. Bruce replaced Manningham’s satirical vignette with the prosaic observation that Davies was ‘extremely awkward in his gait’.80

76 

ibid, (1.1) 7. ibid, (2.1) 22. 78  ‘The whole thing will be vastly ceremonious, wordy, unsatisfactory, and expensive, and I call it, in general, Wiglomeration’: C Dickens, Bleak House, N Bradbury (ed) (London, Penguin, 1996) 121. For an introduction to the shared themes of law and literature, in which Bleak House is a subject of discussion, see R Weisberg, Poethics: And Other Strategies of Law and Literature (New York, Columbia University Press, 1992) 67–73. On the character of Dickens’s Esther Summerson as the personification of equity, see Watt, Equity Stirring, 169–94. 79  BL, MS Harleian 5353, fo 127.v. The passage continues: ‘(B. Rudyerd or Th. Overbury). He never walkes but he carries a clokebag behind him. His arse sticks out soe farre’, ibid. 80  Diary of John Manningham, of the Middle Temple, J Bruce (ed) (London, Camden Society, 1868), 168, fn 1. 77 

Our English Martiall: John Davies of the Middle Temple

 35

After a faltering start, a highly successful career awaited Davies. The future ­Solicitor-General for Ireland, Attorney-General for Ireland, Sergeant-at-Law and Chief Justice of the King’s Bench81 was not only one of the most eminent lawyers and jurists of the late Elizabethan and Jacobean period, but one of its most successful poets, the author of Orchestra, or a Poem of Dancing; Hymnes of Astraea; and Nosce Teipsum. The coincidence of these two career paths, the lawyer and the poet, allows the critic to observe the close correlation between law and poetry, suggesting that the indivisibility of these aesthetic forms was a salient feature of the early modern legal institution. Davies was one of several students admitted to the Middle Temple in the late 1580s and early 1590s the aspirations of whom were concerned as much with heeding the poetic muse as they were with studying the law. Prior to their admission to the Inn, all of these young men had attended Winchester College and Oxford University. In addition to Davies, they included John Owen (who joined the Inner Temple, but remained in contact with his friends at the Middle Temple), John Hoskins, and the future English Ambassador to Venice, Henry Wotton.82 Their literary ambitions were to manifest themselves in numerous poems written in a variety of styles,83 but despite the shared interests of the group it seems that Davies was something of an outsider. Leaving aside the grotesque description by John Manningham of Davies’s ungainly physique, there is strong evidence to suggest that although Davies may not have been universally disliked by his contemporaries at the Middle Temple he was (to say the least) the subject of sustained derision by an articulate few. In his record of events at the Candlemas revels of 1597–98, entitled Le Prince d’Amour, or the Prince of Love, the principal author of the festivities and another Oxford-educated member of the above literary circle, Benjamin Rudyerd, made unflattering reference to Davies throughout. It is extensively documented that Davies’s erstwhile friend Richard Martin (one of only two barristers to be honoured with an effigy in Temple Church, the other being Edmund Plowden) played the eponymous hero of the revels.84 Davies himself played the lesser role of ‘Stradilax, a Templarian’, 81  Davies died suddenly, on the night of 7 December 1626; the next day, he was to have been inaugurated as Chief Justice of the King’s Bench. 82 Finkelpearl, John Marston, 46. While in office in Venice, Wotton described an ambassador as ‘an honest man sent to lie abroad for the good of the country’. He wrote the comment in Latin (in the ­commonplace book of Christopher Flecamore, according to Izaak Walton) as: Legatus est vir bonus peregre missus ad mentiendum rei publicae causa. The pun on ‘lie’ (meaning ‘reside’) was lost in the Latin translation, causing James I to ostracise Wotton and comment that ‘yt was no jesting matter’, The Letters of John Chamberlain, NE McClure (ed), 2 vols (Philadelphia, The American Philosophical Society, 1939) 1: 385 (the letter from Chamberlain is dated 3 November 1612). 83 Among the best known of these are Absence, Hear thou my Protestation, by John Hoskins (originally attributed to John Donne), and The Character of a Happy Life, by Henry Wotton. On the contribution of junior members of the early Elizabethan Inns to a specific literary culture, see J Winston, Lawyers at Play: Literature, Law, and Politics at the Early Modern Inns of Court, 1558–1581 (Oxford, Oxford University Press, 2016). 84  See Finkelpearl, John Marston, 45–61; also, A Arlidge, Shakespeare and the Prince of Love: The Feast of Misrule in the Middle Temple (London, Giles de la Mare, 2000).

36  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast although he had campaigned unsuccessfully at the Middle Temple to be elected Prince d’Amour.85 Of ­Graeco-Roman provenance, the pseudonym ‘Stradilax’ honoured a late ­Elizabethan literary tradition of renaming the subject of satire as a personage from classical antiquity, thus preserving (ostensibly, at least) his anonymity. That Stradilax was Davies there can be no doubt. We learn from Rudyerd’s account that on the night of 27 December 1597 the ‘Poet Matagonius’ presented Stradilax with a shield, on which was depicted ‘the Monster Sphinx’. The Sphinx was probably a reference to Davies’s size and appearance, as well as an allusion to his lack of self-knowledge.86 The pictorial device of the Sphinx was accompanied by the following text: Davus sum, non Oedipus. Following the presentation, Stradilax was saluted ‘to the Tune of the Tanner and the King.’87 It appears that this parody of the grant of heraldic arms was a satirical intimation of Davies’s social pretensions. ‘Davus sum’: ‘I am Davus’—the Latinised version of Davies’s name being that of a slave in the comic drama Andria, by the Roman playwright, Terence.88 Davies was ‘non Oedipus’: he was Terence’s slave, rather than Sophocles’ king. The Middle Temple revellers would not allow Davies to forget that he was the son of a tanner (albeit a wealthy tanner), and not a ‘gentleman of bloud and coate-armour’ (as John Ferne, a member of the Inner Temple, had generically described members of the Inns of Court in 1586);89 hence, the salute given Davies to the tune of ‘the Tanner and the King.’ The account given by Ferne in The Blazon of Gentrie of the flawless genealogy of members of the Inns is qualified by the author’s declaration that the hegemony of the landed gentry within those august institutions was increasingly threatened by the incursion of yeomanrye and Merchauntes, [who] set their broode, to the studye of common lawes: that faculty is so pestered, yea many worthy offices, and places of high regarde, in that vocation, (in olde time, left to the support of gentle linage) are now preoccupated, and usurped by ungentle, and base stocke.90

It is worth noting in light of the above statement that Ferne’s grandfather was a yeoman (from Uttoxeter, Staffordshire), and that his father acquired the 85  Rudyerd commented parenthetically that Stradilax/Davies ‘was in great danger to have been Prince himself ’, before adding the qualification: ‘if any man had thought him fit’; B Rudyerd, Le Prince d’Amour, or the Prince of Love (London, William Leake, 1660) 78–79. 86  Discussing Davies and the 1597 revels, JR Brink notes that ‘The sphinx was traditionally used to signify ignorance of self ’: JR Brink, ‘The Composition Date of Sir John Davies’ “Nosce Teipsum”’ (1973) 37 Huntington Library Quarterly 19–32, 25. 87 Rudyerd, Prince d’Amour, 83. 88 Finkelpearl, John Marston, 53. In an earlier article, Finkelpearl argues that the relevance of ‘Stradilax’ to Davies is explained by ‘Manningham’s description of Davies’s waddling gait’: PJ ­ ­Finkelpearl, ‘Sir John Davies and the “Prince d’Amour”’ (1963) 10(8) Notes and Queries 300–302, 302. 89  J Ferne, The Blazon of Gentrie (London, Toby Cooke, 1586) 92. On the depiction by Ferne of nobility at the Elizabethan Inns of Court, see Raffield, Images and Cultures, 35–36, 79–82. On the early life of Davies, see HS Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge, Cambridge University Press, 1985) 15–33. Grosart claimed incorrectly that Davies’s brother, and not his father, was a tanner: AB Grosart (ed), The Complete Poems of Sir John Davies, 2 vols (London, Chatto and Windus, 1876) 1: Memorial-Introduction, xv–xvi. 90 Ferne, Blazon of Gentrie, 93.

Our English Martiall: John Davies of the Middle Temple

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f­ amily’s land in Lincolnshire as recently as the 1570s.91 Ferne insisted that the late ­Elizabethan Inns ‘have much ado, to conserve the estate of their former honor’.92 In so doing, he was harking back nostalgically to a literary portrait of the Inns, painted in the late fifteenth century by Sir John Fortescue in De Laudibus Legum Angliae, according to which: ‘Knights, Barons and the Greatest Nobility of the Kingdom, often Place their Children in those Inns of Court.’93 Fortescue’s claim that members of the Inns were necessarily members also of the English gentry or nobility is dismissed by Prest as ‘an extravagant boast’,94 but the myth was perpetuated by lawyers and historians, well into the seventeenth century. Sir George Buck, writing in 1615, expounded on the ‘style and name of Gentlemen’, by which members of the Inns were formally acknowledged. For Buck, members were ‘of blood, and of discent, from gentile and noble parents, and auncesters’. He expressed none of the qualms, raised by Ferne thirty years earlier, concerning the threat posed to immutable hierarchy by the intrusion of merchants’ and yeomen’s sons into the rarefied social atmosphere of the Inns. Buck dismissed the social and professional significance of entry into the Inns by sons of ‘Graziers, Farmers, Marchants, Tradesmen, and artificers’, solely on the grounds that ‘It is an error to thinke that [they] can be made Gentlemen, by their admittance or Matriculation in the Buttrie Role, or in the Stewards Booke’.95 ‘Gentility’, in the sense of the innate nobility of a gentleman ‘of blood’, was for Ferne inseparable from the priestly office of the lawyer. With a wistful glance at an indefinite and imaginary past, he praised ‘our auncient Governors in this land’, who determined that only gentlemen of blood ‘should be admitted into the houses of Court being Seminaries’.96 Indeed, in equating the sacerdotal role of the legal profession with the gentility of its members, Ferne made the surprising observation that ‘Christ was a Gentleman, as to his flesh, by the part of his mother’. In addition, he claimed that ‘The Apostles also … were Gentlemen of bloud’.97 That jurisprudence should be regarded as a form of theology was for common lawyers of the late medieval period a sine qua non. Fortescue had been emphatic that the study of municipal law was nothing less than ‘to study the Laws of God.’98 The medieval common law had developed along lines firmly demarcated by canon law: itinerant justices of the common law in that period were 91 S Healy, ‘Ferne, Sir John (c.1560–1609)’, Oxford Dictionary of National Biography, Oxford University Press, 2004: www.oxforddnb.com/view/article/9350. 92 Ferne, Blazon of Gentrie, 92. 93 Fortescue, De Laudibus, 111–12. 94 Prest, Rise of the Barristers, 94. 95  Buck, ‘Third Universitie’, 968–69. 96 Ferne, Blazon of Gentrie, 24. 97  ibid, 97–98. 98 Fortescue, De Laudibus, 5. Fortescue described the costume of a sergeant-at-law as ‘a long Robe, not unlike the Sacerdotal Habit’. The following is an extract from a speech made to newly appointed sergeants-at-law by Sir Edward Montague (Lord Chief Justice, 1545–52): ‘First, your white coif containinge and coveringe your supreme and principall part, the hed. For, as appereth Apocalip. 7, thos which shall assend to heaven shalbe clothed with white, signifiinge puritye of lif: which is verye necessarye in potentates and minesters of the lawe’, quoted in JH Baker, The Order of Serjeants at Law (London, Selden Society, 1984) 296.

38  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast invariably prelates of the Church, and (according to Dugdale) those in monastic orders ‘were ­persons so expert in the Laws, that others in divers parts did easily submit to their judgment.’99 Regarding Davies and his contemporaries at the Middle Temple in the 1590s, these young members of the Inn were beneficiaries of institutional expansion by the legal profession, following statutory recognition of the Bar in 1531. The Statute of Sewers (23 H.8. cap.5) acknowledged the Bar as an independent body of practitioners whose members were qualified for public office. Three years later, The Act of Supremacy of 1534 (26 H.8. cap.1) created a sovereign English jurisprudence, independent from interference by Rome, and the foundations of a secularised legal profession were thereby laid. Throughout the sixteenth century, the infrastructure of the Inns of Court expanded at an extraordinary rate: ‘the B ­ enchers have Builded many very faire Lodgings, and Chambers, and will continue in building, and enlarging, and beautifying of it’,100 wrote Buck concerning the architectural development of Lincoln’s Inn during this period. The Elizabethan age was litigious: ‘There is not a word in the Law, but it is a grote in the Lawiers purse’, was the approving comment of Sir Thomas Wilson.101 Following the Henrician Reformation of the 1530s, the expansion of the Tudor state during the remainder of the sixteenth century had generated unprecedented levels of work for common lawyers. Demand for barristers was high and as Prest has noted, despite the best efforts of the judiciary to restrict the number of annual calls to the Bar, by the start of the seventeenth century entry to the profession was ‘regulated by market forces alone’.102 The days of the lawyer as sacerdos, enacting a divinely ordained role, in effect were over.103 So too was the notion that only gentlemen of blood were eligible for membership of the Inns, despite the best efforts of Ferne (and later, Buck) to convince his readers that such a modus operandi was either possible or desirable, or both. Members from less august familial and social backgrounds were ‘simply upgraded’ to the formal status of ‘gentlemen’.104 Prest conducted a survey into the social backgrounds of students called to the Bar between 1590 and 1640. The results were based on roughly five per cent of the 2,293 men whom he estimated became barristers during this period.105 According to the statistics adduced in the survey, there were no sons of peers in the sample five per cent called to the Bar between 1590 and 1640, and only 6.1 per cent of those surveyed were the sons of knights. ‘Sons of gentlemen’ (as recorded in the admissions’ registers of the Inns) made up the largest constituency of 24.3 per cent. The sons of merchants consti99 Dugdale, Origines Juridiciales, 21; also, F Pollock and FW Maitland, The History of English Law Before the Time of Edward I, 2 vols (Cambridge, Cambridge University Press, 1898) 1: 133–34, 155–56. 100  Buck, ‘Third Universitie’, 973. 101 Wilson, Art of Rhetorique, 39. 102 Prest, Rise of the Barristers, 75. 103 On the secularisation of the legal profession in the sixteenth century, see P Raffield, ‘The ­Elizabethan Rhetoric of Signs: Representations of Res Publica at the Early Modern Inns of Court’ (2011) 7 Law, Culture and the Humanities 244–63. 104 Prest, Rise of the Barristers, 88. 105  ibid, 84.

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 39

tuted seven per cent, although Prest included in this category ‘sons of merchants, aldermen, citizens, clothiers’ and (relevant to John Davies’s background) sons of tanners.106 Prest’s cautious conclusion was that the survey provided evidence of ‘the broadening of the bar’s social composition over the early modern period as a whole.’107 The increased breadth of social composition may have fulfilled a need in satisfying the evident demand for barristers, but as far as John Davies was concerned his social rank was a matter for public ridicule at the hands of his peers. Benjamin Rudyerd’s account of the 1597–98 Candlemas revels suggests that it was the perceived lowly status of a tanner’s son that provided Davies’s tormentors with most (though not all) of the comic material for their satirical jibes. Stradilax/Davies was mocked for his low-born wit when he uttered two proverbs: ‘the one borrowed from a Smith, the other from a Clown’. He was next derided for his prolixity, the effect of a reportedly long-winded speech made on the steps of Middle Temple Hall being to send his audience to bed before he had finished speaking.108 On the next page, we learn that ‘there was a great Libel set up against him’ in various parts of the city, although the specific nature of the libel was not specified (it is fair to assume that allusion was probably made to his low social status, his ambition, his verbosity, and his physical appearance). The ‘Marmelad-Colour-Taffata Gown’ (worn by Stradilax on Christmas Eve 1597) ‘was never seen after’,109 presumably because it was another source of ridicule. On New Year’s Eve, his personal contribution to that night’s masque was adjudged a failure, ‘because it wanted Applause.’110 By Sunday 8 January 1598, Davies had taken to the bottle. He ‘fell drunk without a Rival’, made an obscene oration ‘to the dispraise of noble Women’ and on the way back to his chambers ‘he went to sleep upon a Stall, where the B ­ ellman found him’.111 On the night of Thursday 12 January, it was alleged that Davies had created enmity between the Prince d’Amour and his guests from Lincoln’s Inn. On the night after that, he was found guilty of being ‘puft up with a poor-witted ambition’ and of imitating the Earl of Essex.112 To complete Davies’s humiliation, Rudyerd’s account of the revels concluded with a description of Richard Martin’s demeanour and temperament, which could not have contrasted more starkly with Davies’s own. Martin was ‘of a cheerful and gracious countenance; black haired; tall bodied, and well proportioned’, his conversation was ‘sweet and fair’, he was

106  ibid, 89. For a comprehensive survey of members of the Inns of Court between 1440 and 1550, see J Baker (Sir), The Men of Court, 1440 to 1550: A Prosopography of the Inns of Court and Chancery and the Courts of Law, 2 vols, (London, Selden Society, 2012). 107 Prest, Rise of the Barristers, 95. 108 Rudyerd, Le Prince d’Amour, 79. 109  ibid, 82. 110  ibid, 84. 111  ibid, 87. 112  ibid, 88. A possible source of resentment among the principal revellers of 1597–98 was Davies’s seniority: at this time, Rudyerd and Martin were inner-barristers while Davies was an utter-barrister, having been called to the Bar in July 1595.

40  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast ‘of a noble and high spirit’, and ‘He was very fortunate and discreet in the love of Women’.113 The response of the tanner’s son to his prolonged and excessive humiliation was swift and violent. On 9 February 1598, one week after the revels had ended, Davies entered Middle Temple Hall during commons, concealing a dagger and a ‘bastinado’ or cudgel under his gown. He was accompanied by two sword-bearing attendants. Davies approached Martin, who was sitting at ‘the lower part of the second table for Masters of the Bar … quietly dining.’114 Davies then hit Martin over the head with the bastinado, so hard apparently that the weapon broke. Davies drew one of his attendants’ swords and flourished it above his head, before exiting Hall, running down to the water-steps, and fleeing by boat across the Thames. In February 1598, a Parliament of Middle Temple expelled him from the Inn. Nearly four years later, on 30 October 1601, Davies submitted a ‘Humble Petition’ to Middle Temple’s Parliament, in which he begged the governing body ‘to pardon myne offence upon this my submission, proceeding from my hartye repentance, promising hereafter to conforme myself in duetye and obeydience as a socialle Fellowe of soe reverend a Fellowshippe.’115 Parliament was moved to readmit him to the Inn. Thence began his rise to eminence within the legal institution. If the entertainment and events surrounding Le Prince d’Amour were to be described in terms of literary genres, then the category of satirical drama would seem to be the most appropriate. And it was through satire that Davies was to exact revenge on his tormentors, in the form of the epigram. The intrinsic violence of his satirical poems was probably more effective and (to judge by the response of the state authorities) definitely more far-reaching than that which he inflicted upon Richard Martin through the crude medium of a bastinado. From the mid1590s until the end of the decade, Davies wrote at least 44 epigrams, some of which were written after the Candlemas revels of 1597–98 (when he was kicking his heels as a barrister, following his expulsion from the Middle Temple in February 1598). The collection was published in 1599 under the title Epigrammes and Elegies:116 Davies’s epigrams were coupled to a translation by Christopher Marlowe of Ovid’s Elegies. Some of the epigrams were circulated in manuscript form prior to publication, as Sir John Harington, writing in 1596, revealed: My good friend M. Davies sayd of his Epigrams, that they were made like dublets in Birchen lane, for every one whom they will serve: so if any man finde in these my lines

113 

ibid, 89–90: entry for Candlemas Night (Thursday 2 February 1598). CH Hopwood (ed), Calendar of the Middle Temple Records, 4 vols (London, Butterworth, 1904) 1: 379–80. On commons, or the order of dining at the Inns, see Dugdale, Origines Juridiciales, 193. 115  ‘The Humble Petition of John Davies, Gent’, quoted in Lord Stowell, ‘Observations on, with a Copy of, the Proceedings had in the Parliament of the Middle Temple, respecting a Petition of Sir John Davies to be restored to the degree of Barrister, A.D. 1601’ (1827) 21 Archaeologica 107–112, 112. 116  The numeration of the epigrams in the published collection suggests that at least four poems are missing. Each epigram has a title, followed by a number. The last poem in the collection is ‘Ad 114 

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any raiment that sutes him so fit, as if it were made for him, let him weare it and spare not, and for my part I would he could weare it out.117

Like the doublets made by the tailors of Birchen Lane in the City of London, Davies’s epigrams were bespoke. They were craftily suited to fit the individual indiscretions, peccadilloes, pretensions and general shortcomings of his peers at the Middle Temple.118 The Latinised pseudonyms of Davies’s subjects render these men difficult or even impossible to identify for the modern reader; but at the time he composed them, names such as Quintus, Severus, Comus and Geron were not intended to prevent members of the Inns of Court from immediately identifying the real-life targets of the satires. Davies’s principal tormentor at the 1597–98 revels, Benjamin Rudyerd, is probably the ‘lowsie Ponticus’ of ‘Ad Musam 48’, the final epigram in the 1599 edition of Davies’s work. The gist of this epigram is that Ponticus was envious of Davies’s ‘fame’: ‘Yet Bankes his horse is better knowne then he, / so are the Cammels & the westerne hog’.119 Rudyerd himself wrote four epigrams about Davies, in which he mocked the subject for his social and professional pretensions and ambitions (the same, ‘poor-witted ambition’ which was publicly ridiculed in the Candlemas revels). Thinly disguising Davies as ‘Mathon’, Rudyerd described him thus: ‘Mathon hath got the barr and many graces / by studdyinge, noble men, newes, and faces’.120 John Manningham made a similar observation about Davies in the entry to his Diary for 10 April 1603: ‘Jo. Davis reports that he is sworne the Kings Man, that the King shewed him greate favors. Inepte. (He slaunders while he prayses.)’.121

Musam 48’, but only 44 poems are included. Numbers 3–6 are not included: the sequence jumps from ‘Of a Gull 2’ to ‘In Faustum 7’ in Epigrammes and Elegies. By I.D. and C.M. (Middleborugh, 1599) sig. A.3.v–sig. B.r. 117  J Harington (Sir), A New Discourse of a Stale Subiect, Called the Metamorphosis of Aiax (London, R Field, 1596) 117. On the poetry of Davies in manuscript form by the mid-1590s, see R Krueger, ‘Sir John Davies: Orchestra Complete, Epigrams, Unpublished Poems’ (1962) 13 The Review of English Studies 17–29. Wilkes argues that several of Davies’s epigrams were ‘written about 1594’: GA Wilkes, ‘The Poetry of Sir John Davies’ (1962) 25 Huntington Library Quarterly 283–98, 283. 118  On the metaphor of costume and the satirical treatment of law, the definitive treatise is S ­ artor Resartus, by Thomas Carlyle: ‘the Pomp and Authority of Law, the sacredness of Majesty, and all inferior Worships (Worthships) are properly a Vesture and Raiment’, T Carlyle, Sartor Resartus: the Life and Opinions of Herr Teufelsdröckh (London, Chapman & Hall, 1885) 183. On the semiotics of clothes, see A Hunt, Governance of the Consuming Passions: A History of Sumptuary Law (Basingstoke, ­Macmillan, 1996) 58; also P Goodrich, ‘Signs Taken for Wonders: Community, Identity, and A History of Sumptuary Law’ (1998) 23 Law and Social Inquiry 707–28; G Watt, Dress, Law and Naked Truth: A Cultural Study of Fashion and Form (London, Bloomsbury, 2013). 119  Davies, ‘Ad Musam 48’ in Epigrammes and Elegies, sig. D.3.v. 120  B Rudyerd, ‘In eundem. 9’, quoted in JL Sanderson, ‘Epigrames P[er] B[enjamin] R[udyerd] and Some More “Stolen Feathers” of Henry Parrot’ (1966) 17 The Review of English Studies 241–55, 252. In ‘In eundem’, Rudyerd responded acerbically to the claim that Davies’s epigrams were ‘made like dublets in Birchen lane’: ‘Thy stuff is made so ill it will not sell / none take thy epigrams wt then ensu’th / fayth weare them out thy selfe. they fitt thee well’, quoted in ibid, 245. See Finkelpearl, John Marston, 54; also, Pawlisch, Sir John Davies, 18–19. 121  BL MS Harleian 5353, fo 127.v.

42  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast The details of the faults, misdeeds and personal traits of the miscreant subjects of Davies’s epigrams are so specific that their real names would immediately have been obvious to an informed readership. For example, the true identity of ‘The fine youth Ciprius’, who is (we are told) ‘more tierse and neate, / Then the new garden of the olde Temple is’, who ‘weares a hat now of the flat crown-block, / The treble ruffes, long cloake, & doublet french’, and ‘Takes Tobacco, and doth weare a locke, / And wastes more time in dressing then a Wench’, would have been known to those at the Temple who were acquainted with ‘this new-fangled youth, made for these tim[e]s’.122 Other members of the Inn readily identifiable by their peers would have included the deluded Brunus, who ‘thinkes himself a faire sweet youth’, but is in fact ‘Thirtie nine yeeres of age at least’;123 and the depraved Francus, who, when he ‘comes to solace with his whoore / He sends for rods and strips himself stark naked: / For his lust sleepes, and will not rise before, / by whipping of the wench it be awaked.’124 Davies professed the didactic purpose of these poems in the first epigram of the collection, addressed in Latin ‘To the Muse’ (‘Ad Musam’). He defined the intended function of the epigrammatic form thus: ‘Which Taxeth under a particular name, / A general vice which merits publique blame’.125 The subjects were to be named and shamed, even if the individual in question were to be identified only by a Latin pseudonym. The style and subject matter of the epigrams are scabrous: the mise-en-scène for attacks on his peers being the licentious playhouses, brothels and taverns on the south bank of the Thames. As already noted,126 commentators of the late Elizabethan period recorded the conspicuous attendance of lawyers at the public theatres. In 1592, Thomas Nashe wrote that the ‘afternoon’s men’ at the playhouses comprised ‘Gentlemen of the Court, the Innes of Courte, and the number of Captaines and Souldiers about London’.127 The lawyers who make up the cast of Davies’s epigrams followed the fashion in going to the plays, but they were often distracted by pleasures of a more intimate, carnal nature than those offered on the stage. For example, Fuscus: ‘Then sees he a play till sixe, and sups at seaven … Save that sometimes he comes not to the play, / But falls into a whoore house by the way.’128 As Goodrich has noted in his study of satire and the law, satirical legal studies aim to link law and life, and in order to achieve that end ‘the satire must attach itself to a figure or a person … it needs a narrative and specifically it requires

122 

Davies, ‘In Ciprium 22’ in Epigrammes and Elegies, sig. B.4.r. ibid, ‘In Brunum 32’, sig. C.2.v. 124  ibid, ‘In Francum 33’, sig. C.3.r. 125  ibid, ‘Ad Musam’, sig. A.3.r. 126  See text to n 31, above. 127  Quoted in Gurr, The Shakespearean Stage 217. See WJ Lawrence, The Elizabethan Playhouse and Other Studies (Stratford-upon-Avon, Shakespeare Head Press, 1912); also, RA Foakes, ‘Playhouses and Players’ in AR Braunmuller and M Hattaway (eds), The Cambridge Companion to English Renaissance Drama (Cambridge, Cambridge University Press, 2003) 1–52. 128  Davies, ‘In Fuscum 39’ in Epigrammes and Elegies, sig. D.r. 123 

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dramatization, actors, and action.’129 Davies’s epigrams provide all of the above. But the role enacted by the lawyers of his satirical poems is emphatically not the sacerdotal one described by Fortescue, and nor is the setting for these microcosmic dramas the idyllic gardens of the Temple. Philo the lawyer, Davies tells us, mingles with fortune-tellers, schoolmasters, midwives, bawds and conjurors in the bustle of Temple Bar on Fleet Street, where a ballad-singer charms porters, oyster-wives, prostitutes, and constables, while a cutpurse stands ‘ready with a Knife … Thus Orpheus to such hearers giveth Musique’.130 In the lawless, ­Rabelaisian world inhabited by Philo the lawyer, the ironic reference to Orpheus is apt only in a satirical context.131 It was of course the harmony of Orpheus’s lyre that charmed wild beasts and exceeded in beauty and persuasive power the song of the idolatrous sirens, recording through metaphor the moment when law was introduced into society.132 But the law, which Philo the lawyer and his legal brethren introduce into the society depicted in Davies’s epigrams, induces discord rather than harmony. In another epigram, we are told that Publius (a student of common law) often abandons his books. He casts aside the law reports of Plowden, Dyer and Brooke, for the more immediate and obvious pleasures of Paris Garden in Bankside: ‘Where he is ravisht with such delectation / as downe amongst the Beares & dogges he goes’.133 The lawyers of Davies’s epigrams are not rabbinical ministers, expounding the tenets of a divinely ordained jurisprudence to a grateful congregation. Rather, they are legal technocrats like the Crassus of ‘In Crassum 37’, who ‘tel[s] his lies so rife’ simply because ‘He is a lawyer’.134 Lying, lawyering, and whoring: in the 44 epigrams of the collection,

129  P Goodrich, ‘Satirical Legal Studies: From the Legists to the “Lizard”’ (2004) 103 Michigan Law Review 397–517, 422; see also G Leung, ‘The Efflorescent Nihilism of Laughter: An Existential ­Supplement to Satirical Legal Studies’ (2010) 4 Law and Humanities 275–89. 130  Davies, ‘In Philonem 38’ in Epigrammes and Elegies, sig. C.4.v–sig. D.r. 131  On the carnivalesque distinction between reality and illusion, and the liminal zone between life and art, see M Bakhtin, Rabelais and His World, H Iswolsky (trans) (Bloomington, Indiana University Press, 1984) 7. 132  In his preface to the Irish law reports, published in 1615, Davies incorporated the myth of Orpheus into his encomium to law: ‘like Orpheus harpe or Noahes Arke, it [law] charmeth the ­fierceness of the Lion & the Tiger, so as the poore lambe may ly in safety by them’, Davies, Le Primer Report, ‘A Preface Dedicatory’, sig. 9*.r. Puttenham wrote that ‘Orpheus assembled the wilde beasts to come in heards to harken to his musicke, and by that meanes made them tame, implying thereby, how by his discreete and wholsome lessons uttered in harmonie and with melodious instruments, he brought the rude and savage people to a more civill and orderly life’: G Puttenham, The Arte of English Poesie (London, Richard Field, 1589) 4. See also, Cicero: ‘What the musicians call harmony in song is concord in a State, the strongest and best bond of permanent union in any commonwealth’, MT Cicero, De Re Publica in De Re Publica, De Legibus, CW Keyes (trans) (Cambridge, Mass, Harvard University Press, 1928) 183, Bk II.XLII.69. On the political metaphor of the harp in the late Elizabethan period, see R Hooker: ‘where the King doth guide the state and the law the King, that commonwealth is like an harp or melodious instrument’, R Hooker, Of the Laws of Ecclesiastical Polity, AS McGrade (ed) (Cambridge, Cambridge University Press, 1989) 146, Bk VIII.3.3. 133  Davies, ‘In Publium 43’ in Epigrammes and Elegies, sig. D.2.r. This epigram refers to the two most famous bears of the Elizabethan ‘Beargarden’ in Paris Garden: ‘Leaving olde Ployden, Dier & Brooke alone, / To see olde Harry Hunkes & Sacarson’, ibid, sig. D.2.v. 134  ibid, ‘In Crassum 37’, sig. C.4.v.

44  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast these transgressions are inseparable. The cumulative effect of the poems is not merely to associate lawyers and liars with prostitutes, it is also to bind them into an unholy trinity of corruption, venality and decay. Davies spared his readers no realistic detail in describing the objects of the young lawyers’ lust. One such prostitute, Gella, had a dull dead eye, a saddle nose, An ill shapte face, with morphew overspread, and rotten Teeth which she in laughing showes. Brieflie she is the filthiest wench in Towne, of all that do the art of whooring use: But when she hath put on her sattin gowne, Her out lawne apron, & her velvert shoes. Her greene silk stockings, and her peticoate, Of Taffatie, with golden frindge a-rounde: And is withall perfumed with civet hot, which doth her valiant stinking breath confounde Yet she with these addicions is no more, Then a sweete, filthie, fine ill favored whoore.135

The same may well have been said of the practice and practitioners of common law. Concealing their mendacity with fine words and fine clothes, by the end of the sixteenth century lawyers were seen by many as no more than manipulative peddlers of an antique art, as ancient at least as the craft of the prostitute. The art in question was that of forensic oratory. I have noted already the observation of Sir Thomas Wilson that ‘There is not a word in the Law, but it is a grote in the Lawiers purse’,136 the words of the law alchemically transformed into base coinage. By way of encouragement to his audience of law students, Wilson further observed that ‘the Lawyer can never want living till the earth want men and all be voyde’.137 Plying their trade in and around the Temple and the courts of Westminster, lawyers ensured that the analogy with ‘the art of whooring’ was persuasive. The lawyer had become the antithesis of that which he was meant to represent: Sacerdotes had mutated into Rabulæ Forenses,138 law had transformed into lawlessness. The claim made by Fortescue (more than a century earlier) that the study of municipal law was synonymous with the study of divine law was in late Elizabethan England palpably absurd, despite protestations to the contrary.139

135 

ibid, ‘In Gellam 26’, sig. C.r –sig. C.v. See text to n 101, above. 137 Wilson, Art of Rhetorique, 38. 138  ‘Wrangling lawyers of the market place’ or ‘forensic rabble’, depending on which translation is preferred; on Fraunce’s use of the phrase Rabulæ Forenses, see text to n 6, above. 139  See, for example, the advice to prospective law students, given by Fulbecke in 1600: ‘though the charge and calling be seculer, yet it must be religiously handled. For God is the author of the Law’, Fulbecke, A Direction or Preparative, sig. B.2.v. 136 

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Even before the publication in 1599 of his epigrams, Davies was being compared to the great satirical poet of ancient Rome, Martial (Marcus Valerius Martialis). Everard Guilpin (poet and member of Gray’s Inn) published his own collection of epigrams in 1598, and described Davies in one of these as ‘Our English Martiall’.140 The praise for Davies was not undiluted: alluding to Davies’s epigram, ‘Of a Gull’, Guilpin’s epigram ends with the acerbic comment that although Davies ‘Thinkes al men guls, ther’s none more gull than he.’141 The subjects of Davies’s satires (his contemporaries at the Inns of Court) represent at one level a paradigmatic shift in English jurisprudence: from sacred to profane, from divine to secular, from spiritual to temporal: Fortescue had mutated into Fraunce. The young men of the Temple who populate Davies’s epigrams were (to paraphrase and subvert the legal definition of the ‘reasonable man’, provided by Lord Radcliffe) the anthropomorphic conception of misrule.142 In rhetorical terms, the satirical epigrams of Davies are a type of antirrhesis, the antithetical form of the apology. In The G ­ arden of Eloquence, Henry Peacham argued that antirrhesis ‘doth specially belong to confutation and is most apt to repell errors and heresies, and to reiect evill counsel and lewd perswasions.’143 Where antirrhesis attacked the vacuous, the idolatrous and the specious; apologia stood for exactness, truth, and the iconic. Davies’s apology for law, and his exegesis of the ideal of law, is to be found not in the satirical ­epigrams, but in another (arguably the greatest) of Davies’s poetic works, Nosce Teipsum, published in 1599, the same year as the epigrams.144 While the ­epigrams may be said to satirise the secular and profane in the legal institution, Nosce ­Teipsum eulogises the divine and sacred in the law itself. Nosce Teipsum was a hit with the public, running to three editions between 1599 and 1608. The same could not be said of Davies’s epigrams, which were banned in the year of their publication. On 1 June 1599, the two pre-eminent bishops of the Anglican Church, John Whitgift (Archbishop of Canterbury) and Richard Bancroft (Bishop of London) issued a Proclamation, prohibiting the Stationers’ Company from publishing any satirical works without the prior approval of the

140  E Guilpin, ‘To Candidus. 20’ in Skialetheia. Or, A shadowe of Truth, in certaine Epigrams and Satyres (London, N Ling, 1598) sig. A.6.r. 141  ibid, sig. A.6.v. 142 ‘And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the court itself ’, Davis Contractors Ltd v ­Fareham UDC [1956] AC 686, per Lord Radcliffe, 728. There are parallels between the satirical ­epigrams of Davies and the claim made by Goodrich for satirical legal studies of the twentieth century: ‘The bad man arrived upon the last-but-one turn-of-the-century jurisprudential scene as something of a ludic scourge upon the vacuity of legal science’. For Goodrich (as for Davies) ‘The bad man’ of satire embodies the secularisation of jurisprudence: ‘He represents a move away from the vagaries of conscience and the dogma of divine or at least sovereign dictates of pristine legal rules’, Goodrich, ‘Satirical Legal Studies’, 480, 481. 143  H Peacham, The Garden of Eloquence (London, H Iackson, 1593) 89. On apology, antirrhetic, and the representation of law, see P Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Los Angeles, University of California Press, 1995) 41–76. 144  For detailed analysis of Nosce Teipsum, see Chapter 4, text to nn 30–38, below.

46  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast two prelates. The Proclamation included a list of satires, already published, which were to ‘bee presentlye broughte to the Bishop of London to be burnte’. One of the nine satires included in the list was ‘Davyes Epigrams, with marlowes Elegyes’.145 On the Monday following publication of the Bishops’ Ban, Davies’s epigrams were burned.146 The episcopal status of Bishops Whitgift and Bancroft should not be allowed to confuse the issue: the purpose of the ban was temporal rather than spiritual. Whitgift and Bancroft played important roles in the secular governance of the realm, Whitgift as a member of the Privy Council and Bancroft as Head of the Ecclesiastical Court of High Commission (the principal, institutional rival to the juridical hegemony of the courts of common law).147 There was at least one obscene work in the Bishops’ Ban: Caltha Poetarum, by Thomas Cutwood, but the primary target of the ban was satire rather than lewdness. No reference was made in the ban to morals, religion, or public decency. It did, however, include the following stark injunction: ‘That noe Satyres or Epigramms be printed hereafter That noe Englishe historyes bee printed excepte they bee allowed by somme of her majesties privie Counsell’.148 Whilst a primary objective of the Privy Council throughout this period was the enforcement of religious conformity, it concerned itself only peripherally with moral and religious objections to alleged sexual misconduct, and was generally content to leave the prosecution of such offences to the ecclesiastical courts, rather than devolve them to the courts of common law. The Privy Council steadfastly refused to introduce into municipal law the draconian sentences demanded by writers such as Philip Stubbes (author of The Anatomie of Abuses), for whom all prostitutes, adulterers and fornicators ‘should drinke a full draught of Moyses cuppe, that is, tast of present death’.149 Throughout the 1590s, the Privy Council demonstrated especial concern with the maintenance of public order and the potential threat to the governance of the realm that was posed by incipient rebellion. In late Elizabethan, rural England, rebellion was not uncommon. The principal subjects of public protest were the enclosure of common land and the shortage of affordable corn. The organisers of the Enslow Hill Rebellion in Oxfordshire were charged with High Treason under the Treason Act 1571 (13 Eliz. cap.1). They were tried (the prosecution was conducted by Sir Edward 145  The Stationers’ Register, Register C, ff 316.r, 316.v, quoted in RA McCabe, ‘Elizabethan Satire and the Bishops’ Ban of 1599’ (1981) 11 The Yearbook of English Studies 188–93, 188. See also, CS Clegg, Press Censorship in Elizabethan England (Cambridge, Cambridge University Press, 1987). The 1599 edition of Epigrammes and Elegies contains very few publication details: the place of publication is given only as ‘At Middleborugh’ (see n 116, above); neither the date of publication nor the name of the publisher is included on the title page, suggesting that the work may not have been licensed for publication by the Stationers’ Company. 146  McCabe, ‘Elizabethan Satire’, 190. 147 For a study of Bancroft and his role in enforcing religious conformity, see P Collinson, ­Richard Bancroft and Elizabethan Anti-Puritanism (Cambridge, Cambridge University Press, 2013). On ­Whitgift, see G Paule (Sir), The life of the most reuerend and religious prelate Iohn Whitgift, Lord ­Archbishop of Canterbury (London, Thomas Snodham, 1612). 148  McCabe, ‘Elizabethan Satire’, 188; see also, Chambers, The Elizabethan Stage, 3: 168-69, fn 4. 149  P Stubbes, ‘The horrible vice of Whoredome in Ailgna’ in The Anatomie of Abuses (London, R Iones, 1583) sig. H.6.r.

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  47 Coke) and convicted in June 1597.150 As Richard A McCabe noted, among the ­satires included in the Bishops’ Ban were Joseph Hall’s Byting Satyres. In one of these poems, Hall attacked those responsible for the enclosure of land in ­Oxfordshire, describing them as ‘pety Tyrants’.151 In London, apprentices rioted in 1590, and in 1595 there was a series of riots in protest at the high price of food. The possibility of violent rebellion against proposed monopolies was not discounted by the City Fathers of London. In 1592, concerning one such proposal, the Privy Council was warned that ‘popular multitudes being once incited and assembled together can hardly be suppressed and kept within obedience by any authority of magistrate whatsoever’.152 Misrule was the subject of all satire: misrule of self, certainly; but misrule also by the magistracy. Davies’s satirical epigrams pitched the personification of law—the barrister—into a lawless state, embodied in the poems by the Liberty of the Clink on Bankside and the commercial bustle of Temple Bar. His literary vignettes provide vivid portraits of an ungoverned and ungovernable realm in which the lawyer engendered discord rather than harmony and through his patronage of the brothels, taverns and playhouses, appeared to lend succour to those outside the law. The satirical subject matter of these poems was suggestive of an inversion of law and therefore the epigram became an obvious target for state censorship. Davies’s epigrams shared with their theatrical equivalent, satirical drama, an implicit egalitarian objective, which was reform of a legal system that had abandoned its ethical foundations for the specious contentment of rhetoric. Ridicule was thereby intended to serve the best interests of the common-weal. The capacity of both literary forms—epigrams and satirical drama—to appeal to a broad audience was self-evidently a source of concern to state authorities.

IV.  Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric The realm of law is invoked in the first speech of Love’s Labour’s Lost. Ferdinand, King of Navarre, and his attendant Lords—Berowne, Dumaine and Longaville— have sworn an oath. They will keep the ‘statutes’ recorded in the ‘schedule’ (1.1.17–18). They are pledged to live and study in the royal court for three years, fasting, rising early and forswearing the company of women (this last injunction 150  On the Enslow Hill Rebellion of 1596, see RB Manning, Village Revolts: Social Protest and Popular Disturbances in England, 1509–1640 (Oxford, Clarendon Press, 1988), 221–29; also, J Walter, ‘A “Rising of the People”? The Oxfordshire Rising of 1596’ (1985) 107 Past & Present 90–143. 151  McCabe, ‘Elizabethan Satire’, 191. 152 Quoted in IW Archer, The Pursuit of Stability: Social Relations in Elizabethan London (Cambridge, Cambridge University Press, 1991) 8; for a general perspective on the government of late Tudor London, and rebellions therein, see P Williams, The Later Tudors: England 1547–1603 (Oxford, Oxford University Press, 1998) 162–75; on the late Elizabethan apprentices’ riots in London and its suburbs, see Manning, Village Revolts, 200–19.

48  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast providing the impetus of the ensuing comic plot). The court will become ‘a little academe, / Still and contemplative in living art.’ (1.1.13–14)153 But to what end? To ‘live’ art? Does an educational institution such as that proposed by Navarre have any real purpose if the subjects of study are, as Berowne asks, ‘Things hid and barred, you mean, from common sense?’ (1.1.57). Paradoxically, the quest for intellectual enlightenment can bedazzle and even blind the student, as Berowne argues in a glittering example of his virtuosic wordplay: ‘Light seeking light doth light of light beguile; / So, ere you find where light in darkness lies, / Your light grows dark by losing of your eyes.’ (1.1.77–79) AD Nuttall has described Berowne as being ‘trapped in a bright bubble of art’,154 and it is this aspect of the play on which I concentrate in the final section of this chapter. It is, as I endeavour to explain, a bubble that similarly entrapped students of law at the early modern Inns of Court, for whom the mastery of rhetorical skills was the cornerstone of legal education. Berowne has much in common with the archetypal lawyer of the early modern period, whose ‘first and chiefest Naturall gift’, according to Dodderidge, ‘is sharpnesse, and dexterity of wit’.155 Berowne cannot help himself, which perhaps explains his willing self-entrapment in Navarre’s bubble of art; but he is acutely aware of the absurd position in which this places him, detached from the natural and real world: ‘Come on then, I will swear to study so / To know the thing I am forbid to know’ (1.1.59–60). While Dodderidge refers to law as a science—‘the Science which we mean to professe’156—it is in the sense of philosophical knowledge or sapientia, rather than a systematic study of the material and physical universe, that he intends the reader to understand the word. As he goes on to argue: ‘there are words of Art in the lawes’.157 The emphasis placed by Dodderidge on the interdependence of art and nature is as relevant to any discussion of law and forensic rhetoric as it is to consideration of the ‘sweet smoke of rhetoric’ (3.1.51) in Love’s Labour’s Lost. Although it was an indispensable condition of early modern, English jurisprudence that common law was derived from the law of nature, its reception in a juridical context was dependent on the logical application of artificial reason.158 A balance needed to be struck between art and nature, as Dodderidge explained: For Nature (though of her selfe excellent) yet without Art or Exercise is as the Gold in the drosse, or as the precious stone taken out of the bowels of the earth, rude, and 153  All references to the text of the play are from W Shakespeare, Love’s Labour’s Lost, WC Carroll (ed) (Cambridge, Cambridge University Press, 2009). On the significance of oaths in Love’s Labour’s Lost, see J Kerrigan, Shakespeare’s Binding Language (Oxford, Oxford University Press, 2016) 67–124. 154  AD Nuttall, Shakespeare the Thinker (New Haven, Yale University Press, 2007) 93. 155  Dodderidge , The English Lawyer, 4–5. 156  ibid, 3. 157  ibid, 50. 158  On the law of nature as the foundation of English law, see Fortescue, De Laudibus, 29; also, Coke, Postnati. Calvin’s Case, 7 Reports (1608) 4: 1a, 12b. On Coke and the artificial reason of law, see Introduction, text to n 11, above. See also, AD Boyer, ‘Understanding, Authority, and Will: Coke’s “Artificial Reason”’ in AD Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, Stanford University Press, 2003) 83–107.

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  49 unpolished: Art without Nature, bare, barren, and defective (as being indeed nothing else but an observation of Nature) And both without Exercise, voide of fruit: Nature resembleth the soile; Arte or Method whereby wee are directed, the Husbandman …159

The above analysis finds its post-Enlightenment equivalent in Nietzsche’s The Birth of Tragedy, where art (which for the purpose of the present analysis is taken to include the practice and application of common law) ‘derives its continuous development from the duality of the Apolline and Dionysiac’.160 In the aesthetic scheme imagined and related by Nietzsche, these two opposing artistic powers ‘spring from nature itself ’.161 The Apolline represents the ordered dreamland of artistic illusion, creating aesthetic artefacts that are based on observation of natural phenomena. Regarding the court of Navarre in Love’s Labour’s Lost, the bubble of art in which the four young men have agreed to encapsulate and incarcerate themselves is burst, the still and contemplative little academe infiltrated, almost as soon as they have put their signatures to the schedule. If the formal process of law is central to the opening action of the play, with its oaths, statutes and schedules, then the theme of law as an instrument to control natural, human behaviour is reinforced by the entry, halfway through this scene, of an officer of the law and his prisoner. Constable Anthony Dull has arrested the rustic clown Costard for the offence of being ‘taken with a wench’ (1.1.264–65), in contravention of the edict issued by Navarre: ‘Item, that no woman shall come within a mile of my court’. (1.1.119–120) The wench (the dairymaid Jaquenetta) is in the custody of Don Adriano de Armado, who is keeping her ‘as a vessel of the law’s fury’ (1.1.254) until she is brought to trial. In a letter that he has sent to the King, concerning the offence allegedly committed by Costard, Armado states that Costard ‘Sorted and consorted, contrary to thy established proclaimed edict and continent canon’ (1.1.242–43). It is not certain whether sexual intercourse has taken place between Costard and Jaquenetta on the occasion in question, the evidence being less than conclusive:162 Armado describes what he witnessed in the park as ‘that obscene and most preposterous event’ (1.1.229–30).163 Costard admits that he ‘was seen with her in the “manor” house, sitting with her upon the “form”, and taken ­“following” her into the park’

159 

Dodderidge , The English Lawyer, 3. Nietzsche, The Birth of Tragedy, S Whiteside (trans), M Tanner (ed) (London, Penguin, 2003) 14. 161  ibid, 18. 162  Nuttall is in no doubt that ‘Costard the clown has been caught copulating with Jaquenetta’: Nuttall, Shakespeare the Thinker, 90. Hutson argues that while the offence may seem unambiguous, ‘the precise manner in which he has offended nevertheless remains hilariously elusive’: L Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford, Oxford University Press, 2007) 297. 163  In an article the thesis of which is founded in this line from the play, Parker argues that the high-flown rhetoric of Don Armado ‘introduces into the play the problem of the separation rather than the fit between verba and res, words and things’: P Parker, ‘Preposterous Reversals: Love’s Labor’s Lost’ (1993) 54 Modern Language Quarterly 435–82, 436. Kerrigan refers to the study of ‘words and not 160 F

50  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast (1.1.198–200). There is no shortage of sexual innuendo and euphemism, as the above lines of Costard indicate, but these are dressed in the formal language of law. ‘The matter is to me, sir, as concerning Jaquenetta’ (1.1.195), Costard informs the King: the ‘matter’ having connotations of a sexual nature, as (more explicitly) in Hamlet’s reference to ‘country matters’.164 When asked by Berowne ‘In what manner’ (1.1.197) he was ‘taken’ with Jaquenetta, Costard replies in the formulaic, juridical language of will-making: ‘In manner and form following, sir’ (1.1.198).165 But the language of law, as deployed by Costard, is obfuscatory: forensic rhetoric is used here to obscure truth, rather than to expose it.166 Much later in the play, Costard reveals that Jaquenetta is pregnant: ‘She is two months on her way’ (5.2.654), he informs Armado, adding that ‘She’s quick, the child brags in her belly already. ’Tis yours.’ (5.2.657–58) Whether Costard or Armado is the father of Jaquenetta’s child is uncertain, despite Armado’s outraged protestation of innocence: ‘Dost thou infamonise me among potentates? Thou shalt die!’ (5.2.659).167 The transgression committed by Costard and Jaquenetta has a peculiar consonance with a later play of Shakespeare’s, Measure for Measure, in which Claudio impregnates Julietta and is convicted of the crime of fornication. Indeed (as has been noted by at least one critic), Armado, like Angelo, finds himself subjected to the same impulses that in others he would see punished.168 There are both thematic and textual echoes of Love’s Labour’s Lost in the later play. Rosaline’s lines, ‘The blood of youth burns not with such excess / As gravity’s revolt to wantonness’ (5.2.73–74), seem more apt when applied to Angelo than to any of the four courtly suitors in Love’s Labour’s Lost,169 none of whom can reasonably be described as being especially grave or wanton. Specific lines in this play point us towards M ­ easure for Measure, Berowne’s ‘And justice always whirls in equal ­ atter … letting the verba drift away from the res’: J Kerrigan, ‘Love’s Labour’s Lost and the ­Circling m Seasons’ (1978) 28 Essays in Criticism 269–87, 283. On the assertion of Sir Francis Bacon that verba (words) are secondary to res (things), see DB Altegoer, Reckoning Words: Baconian Science and the ­Construction of Truth in the English Renaissance (New Jersey, Fairleigh Dickinson University Press, 2000) 19. 164  Parker notes in connection with Costard’s ‘matter’, not only Hamlet’s ‘country matters’ (3.2.116), but also ‘women’s matters’ (Julius Caesar, 1.1.22) and ‘the “matter” that Iago in Othello explicitly ­sexualizes as a female res or “thing” (3.3.301–2)’: Parker, ‘Preposterous Reversals’, 437. 165  The usual formula is as follows: ‘I John Smith of Blackacre do make, publish and declare this my last will and testament in the manner and form following.’ 166  On the importance of forensic rhetoric to Shakespeare’s creative process, see Q Skinner, Forensic Shakespeare (Oxford, Oxford University Press, 2014). 167  Kerrigan argues that Armado is the father of Jaquenetta’s as yet unborn child: ‘the result of fun at the lodge’ [‘I will visit thee at the lodge’ (1.2.109), Armado tells Jaquenetta], and that ‘its parentage implies that it “brags” of language in a proper state, res in balance with verba’: Kerrigan, ‘Love’s Labour’s Lost and the Circling Seasons’, 285. For the argument that Costard is the father, see D Kehler, ­‘Jaquenetta’s Baby’s Father: Recovering Paternity in Love’s Labour’s Lost’ in F Hardison Londré (ed), Love’s Labour’s Lost: Critical Essays (New York, Routledge, 2001) 305–312. 168 C Hoy, ‘Love’s Labour’s Lost and the Nature of Comedy’ (1962) 13 Shakespeare Quarterly 31–40, 33. 169  The line recalls Lucio’s comment about Angelo: ‘a man whose blood / Is very snow-broth, one who never feels / The wanton stings and motions of the sense’ (Measure for Measure, 1.4.57–59). All references to the text of the play are from W Shakespeare, Measure for Measure, NW Bawcutt (ed) (Oxford, Oxford University Press, 1991).

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  51 measure’ (4.3.353) being the most obvious. Berowne goes so far as to paraphrase the Gospel According to St Matthew from which the title of Measure for Measure derives: ‘You found his mote, the King your mote did see, / But I a beam do find in each of three.’ (4.3.153–54)170 In this play about words—their use, misuse, and limitations—it is almost inevitable that Berowne should here employ a pun on the word ‘mote’, meaning not only a speck, but also the French ‘mot’—meaning ‘word’—in which (in early modern English) the final ‘t’ was sounded: the accepted ­pronunciation also of the character of Moth [‘Mote’] in Love’s Labour’s Lost.171 The frivolity of the pun is an unexpected counterpoint to the severity of the ­Biblical injunction against hypocrisy. The ‘dark corners’ of Shakespeare’s Vienna are a world away from the ‘forbidden gates’ of Navarre’s court, but the themes of justice, hypocrisy and transgression are common to both locations. The trial of Costard for sorting and consorting with Jaquenetta bears comparison with the trial in Measure for Measure of the ‘two notorious benefactors’ (2.1.49)—Froth and Pompey—who are brought before Angelo and Escalus by the constable Elbow. The charges against these characters are unspecified but relate variously to Pompey’s illicit trade as a pimp for Mistress Overdone’s brothel, the patronage by Froth of the brothel, and the offence caused by Froth to Elbow’s wife, who (according to Pompey) had ventured into the ‘hot-house’ (2.1.64) because of her longing ‘for stewed prunes.’ (2.1.87) Elbow belongs to the same theatrical stable as Dull (and Dogberry in Much Ado About Nothing): well-intentioned citizens, performing their municipal duties as constables, whose earnest dispositions and portentous modes of expression are undermined (for comic purposes) by their propensity for malapropism.172 And in this particular scene in Measure for Measure, Pompey performs a similar function to that of Costard in the opening scene of Love’s Labour’s Lost. Pompey’s parody of forensic rhetoric obscures the truth and bewilders witnesses and judges alike, as when he gives evidence concerning Elbow’s wife and the incident of the stewed prunes: No indeed, sir, not of a pin, you are therein in the right; but to the point. As I say, this Mistress Elbow, being, as I say, with child, and being great-bellied, and longing, as I said,

170  ‘And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?’ Matthew 7.3. The title of Measure for Measure derives from Matthew 7.1–2: ‘Judge not, that ye be not judged. For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again’. The ‘measure for measure’ passage recurs in Luke 6.37–38. References to the Bible are from the Authorised King James Version. On the inter-relationship between the early modern state, religious belief and theology in the context of Measure for Measure, see Raffield, Shakespeare’s Imaginary Constitution, 182–217. 171  See Kerrigan, ‘Love’s Labour’s Lost and the Circling Seasons’, 286, fn 6. As Kerrigan notes, ‘“Word(s)” occurs more often in LLL than in any other of Shakespeare’s plays (48 times, about twice the average)’, ibid, 286, fn 3. In the First Quarto edition of the play, published in 1598, Berowne’s lines are printed as follows: ‘You found his Moth, the King your Moth did see: / But I a Beame do finde in each of three’: W Shakespere, A Pleasant Conceited Comedie Called Loves labors lost (London, Cutbert Burby, 1598) sig. E.4.v. I discuss the significance of the character of Moth in the play, as Le Mot[e]—‘the Word’—below; see text to nn 208–27. 172  For a contemporaneous account of the duties of constables, see W Lambard, The Dueties of Constables, Borsholders, Tythingmen, and such other lowe and Lay Ministers of the Peace (London, Thomas Wight, 1602). Constables were empowered to arrest ‘suspected persons, which walke in the night, &

52  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast for prunes; and having but two in the dish, as I said, master Froth here, this very man, having eaten the rest, as I said, and, as I say, paying for them very honestly—for, as you know, master Froth, I could not give you three pence again—(2.1.93–100)

In their respective trial scenes, Pompey and Costard play the role of satirists, mocking the prolix language of law. But the other crucial function that they share is to bring a sense of reality, of the world outside and beyond, to the rhetoric of the courtroom. Both of these characters threaten the insular discourse of juridical process through their stylised use of vernacular and demotic;173 their vocal and highly articulate presence ensuring that the refined aesthetics of law are challenged by the rude intrusion of the commonwealth.174 After pronouncing sentence on Costard, the King exits, with his companions Dumaine and Longaville, leaving Costard alone with Berowne. Costard articulates the kind of ‘common sense’ or reality that Berowne knows to be absent from Navarre’s academy, despite which (and against his better judgement) Berowne agrees to append his name ‘to the strictest decrees’ (1.1.117).175 It is Costard’s engagement with reality, in the form of Jaquenetta—‘a true girl’ (1.1.284)—that has led to his arrest and conviction. As he accurately comments to Berowne: ‘I suffer for the truth, sir’ (1.1.283). The same realism afflicts Pompey in Measure for Measure: ‘Does your worship mean to geld and splay all the youth of the city?’ (2.1.219–20), he asks Escalus, regarding the Viennese law against fornication. The identical, realistic question might be asked of Navarre, concerning his edict forbidding the presence of women within a mile of his court: verba and res are at irremediable odds with each other. Whereas Angelo sentenced Claudio to death for his offence, Navarre was content, in Costard’s case, to commute the mandatory sentence of ‘a year’s imprisonment to be taken with a wench’ (1.1.264–65) to fasting for ‘a week with bran and water.’ (1.1.273–74) Navarre’s edict was intended not to instil terror in his subjects, nor to enforce a code of personal morality, but rather to facilitate the means through which his humanist academy could flourish. In this respect, his fictional little academe had much in common with the actual colleges of Oxford and Cambridge. As Nuttall reminds us in his discussion of Navarre’s edict against

sleepe in the day: or which do haunt any house, where is suspicion of bawdrie’, ibid, 6. Further to this very broad power, ‘if information be given to any such officer, that a man and a woman bee in adulterie, or fornication together, then the officer may take companie with him, and that if he finde them so, hee may carry them to prison’, ibid, 18; see JR Kent, The English Village Constable 1580–1642: A Social and Administrative Study (Oxford, Clarendon Press, 1986). 173  Exasperated by the inconsequential and elongated evidence given by Pompey and Froth, Angelo departs mid-trial, muttering: ‘This will last out a night in Russia, / When nights are longest there.’ (2.1.128–29). 174  Boyet, reporting the approach of Costard, says (possibly intending a double-entendre on the word ‘member’): ‘Here comes a member of the commonwealth’ (4.1.41). The same phrase is used by the curate Nathaniel to describe the schoolmaster Holofernes: ‘You are a good member of the commonwealth.’ (4.2.67–68) In Measure for Measure, Elbow announces his entrance with the line: ‘Come, bring them away. If these be good people in a commonweal, that do nothing but use their abuses in common houses, I know no law.’ (2.1.41–43). 175  Nuttall describes Berowne as Costard’s ‘natural ally’: Nuttall, Shakespeare the Thinker, 90.

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  53 the admittance of women to his court, it was only in the nineteenth century that Oxford and Cambridge dons were allowed to marry.176 But given the placement of juridical procedure in the narrative foreground of the play, it is reasonable to suggest that if the institutional location of the play has an imaginary analogue, then it is not Oxford or Cambridge; rather, it is the Third University: the Inns of Court.177 This seems a more plausible, alternative mise-en-scène, especially given the elaborate plot device of the disputed mortgage, steeped in legal niceties, which Shakespeare employs to introduce the Princess of France and her attendant Ladies to the court of Navarre: Madam, your father here doth intimate The payment of a hundred thousand crowns, Being but the one half of an entire sum, Dispursed by my father in his wars. But say that he or we, as neither have, Received that sum, yet there remains unpaid A hundred thousand more, in surety of the which One part of Aquitaine is bound to us, Although not valued to the money’s worth. (2.1.125–134)

The dramatic foundations are laid for a complex legal dispute. The father of the current King of Navarre lent the King of France 200,000 crowns in support of ‘his wars’. Security for the loan was provided in the form of Aquitaine, part of the kingdom of France. Thus, a mortgage was created, with the King of France as mortgagor and the King of Navarre (father of the present King) as mortgagee. A dispute has arisen because the King of France (in ‘a paper’ sent to Navarre, via his daughter the Princess) claims to have repaid 100,000 crowns of the original debt. Navarre counterclaims that this sum has not been paid. The Princess insists that she can prove that the money was repaid, by producing ‘acquittances / For such a sum from special officers’ (2.1.158–59). But the King of France complicates matters further by demanding the repayment of the 100,000 crowns, which he claims already to have paid, and a concomitant extension to the term of the mortgage on Aquitaine. The issue of whether or not the debt has been paid by the King of France advances a range of technical legal issues, which would have

176  ibid, 89. The first colleges to admit women undergraduates at Oxford and Cambridge were, respectively, Lady Margaret Hall (1878) and Girton College (1869). See C Brooke and R Highfield, Oxford and Cambridge (Cambridge, Cambridge University Press, 1988). 177  Written in 1612, and published in 1615 as an appendix to a new edition of The Annales, or Generall Chronicle of England by John Stow (first published in 1592), The Third Universitie of England by Sir George Buck does not refer exclusively to the four Inns of Court. As the alternative title of Buck’s short book explains, it is A Treatise of the Foundations of All the Colledges, Auncient Schooles of Priviledge, and of Houses of Learning, and Liberall Arts, Within and About the Most Famous Cittie of London. In common parlance, the phrase ‘Third University’ was taken to mean the Inns of Court; see P Raffield, ‘Metamorphosis, Mythography, and the Nature of English Law’ in P Goodrich and V Hayaert (eds), Genealogies of Legal Vision (London, Routledge, 2015) 79–103, 81–82.

54  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast been of interest to an audience of late Elizabethan common lawyers (as well as to students at the Inns of Court, used to participating in oral exercises involving disputes concerning property law and contract law, such as the one presented here). These include the possible relevance of writs of debt, wagers of law, and writs of assumpsit super se.178 The scene would have also raised more general questions among the lawyers regarding mortgages, equity and the jurisdiction of the court of Chancery.179 Whether or not Love’s Labour’s Lost was initially intended for performance in front of an audience made up almost exclusively of lawyers is not known. There is no record extant of a performance of the play at any of the Inns of Court, while the performances of The Comedy of Errors (on Innocents’ Day, 28 December 1594, at Gray’s Inn) and Twelfth Night (on Candlemas Day, 2 February 1602, at the Middle Temple) are both well documented.180 The performance of Twelfth Night is noted only briefly in the Diary of John Manningham, but there is a comprehensive record of the 1594–95 Gray’s Inn revels, during which The Comedy of Errors was performed, thanks to the Gesta Grayorum, published nearly 100 years after the event, in 1688. This edition was printed for William Canning, who had presumably acquired a manuscript of the events, written by a participant at the 1594 revels. The Gesta is in part a diary, narrating on a daily basis the activities of the ‘Prince of Purpoole’ and his court. But it also contains the text of The Masque of Proteus by Francis Davison, which was performed in Hall on Shrovetide, 11 F ­ ebruary 1595, the last night of the revels.181 Traditionally, the seasonal revels at the Inns of Court lasted for ­approximately three weeks. That the Gray’s Inn revels of 1594 lasted 178  For a discussion of developments in contract law in the sixteenth century, including all of the above technical terms, see Raffield, Shakespeare’s Imaginary Constitution, 55–73. The leading case in the late 1590s concerning non-payment of debt was Slade’s Case: see Coke, Slade’s Case (1602), 4 Reports (1604) 2: 95a. On the immense significance of this case to the development of modern contract law, see: JH Baker, ‘New Light On Slade’s Case’ in JH Baker, The Legal Profession and the Common Law: ­Historical Essays (London, Hambledon, 1986) 393–432; D Ibbetson, ‘Sixteenth Century Contract Law: Slade’s Case In Context’ (1984) 4 Oxford Journal of Legal Studies 295–317; DH Sacks, ‘The Promise and the Contract in Early Modern England: Slade’s Case in Perspective’, in V Kahn and L Hutson (eds), Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001) 28–53. 179  On the relevance of the ‘mortgage’ in Love’s Labour’s Lost to late Elizabethan law, see CF Huws, ‘What is the Significance of the Mortgage in Love’s Labour’s Lost?’ (2011) 5 Law and Humanities 385–99. Hutson interprets the dispute over the alleged debt as ‘the archetypal case of “conscience” which defined the limits of the common law with relation to Chancery’: Hutson, Invention of Suspicion, 298. See WJ Jones, The Elizabethan Court of Chancery (Oxford, Clarendon Press, 1967) 236–63. 180  In the entry to his account of the revels for 28 December 1594, the author of Gesta Grayorum records that ‘a Comedy of Errors (like to Plautus his Menechmus) was played by the Players’: ­Anonymous, Gesta Grayorum: Or, The History of the High and Mighty Prince of Purpoole (London, W Canning, 1688) 22. In the entry to his diary for 2 February 1602, John Manningham records that ‘At our feast wee had a play called “Twelve Night, or What you Will,” much like the Commedy of Errores, or Menechmi in Plautus, but most like and neere to that in Italian called Inganni’: BL MS Harleian 5353, fo 12.v. 181  See D Bland (ed), Gesta Grayorum or The History of The High and Mighty Prince Henry Prince of Purpoole Anno Domini 1594 (Liverpool, Liverpool University Press, 1968) Introduction ix–xi. Bland notes that the printed version of The Masque of Proteus is an extremely corrupt version of the manuscript version (in BL 541). Bland has therefore printed the manuscript version of the masque in his edition. For this reason, I refer throughout to Bland’s edition of Gesta Grayorum.

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  55 for nearly two months (from 20 December 1594 to 11 February 1595) may be ­attributed to the fact that, due to outbreaks of plague in London, revels had not been staged at the Inn for several years.182 Scholarship concerning the Gray’s Inn revels of 1594 has concentrated to a great extent on the events of 28 December (the night of the performance of The Comedy of Errors), when the formal attendance by the ambassador of Frederick Templarius (‘Emperor’ of the Inner Temple) and his train was disrupted by a ‘disordered Tumult and Crowd upon the Stage’, which precipitated the indignant departure of the ambassador. Gesta records that the night ‘was ever afterwards called, The Night of Errors.’183 The connection between these revels and Love’s Labour’s Lost is marked by events that succeeded the night of 28 December. The visit at the start of Act Two by the Princess of France as an ambassador of her father to the court of Navarre and the sudden, unexpected departure in Act Five of the Princess and her attendant Ladies, have parallels with the arrival and departure on 28 December of the Templarian ambassador to Gray’s Inn. But it was on Twelfth Night (6 ­January 1595) that events at Gray’s Inn proved almost identical to a specific scene in Love’s Labour’s Lost. Once again, an ambassador arrived at the court of the Prince of Purpoole, this time not from the Inner Temple, but from ‘the mighty Emperor of Russia and Moscovy.’ He ‘came in Attire of Russia, accompanied with two of his own Country, in like Habit.’184 We learn that the ‘Russian’ visitors to Purpoole had fought many battles and won many victories against the enemies of R ­ ussia. These included a ‘number of Bigarian Tartars’ and ‘another Army of Ne-gro-­ Tartars’.185 In Love’s Labour’s Lost, Navarre and his friends attempt to entertain the Princess and her companions by disguising themselves ‘Like Muscovites or Russians’ (5.2.121). The relevant stage direction to the 1598 Quarto edition of the play reads: ‘Enter Black-moores with musicke, the Boy [Moth] with a speech, and the rest of the Lordes disguised [as Russians].’186 Whether the Muscovites at the Gray’s Inn revels provided inspiration for Shakespeare’s Masque of Muscovites or vice versa is unknown, although the comment by Berowne that their ‘merriment’ was dashed ‘like a Christmas comedy’ (5.2.461–62) may allude to the disastrous ‘Night of Errors’ that preceded the arrival of the Muscovites at Gray’s Inn.187 In similar

182  ‘Such Pass-times had been intermitted by the space of three or four Years, by reason of Sickness and Discontinuances’: Bland (ed), Gesta Grayorum, 5. On the form and content of Elizabethan revels, see Raffield, Images and Cultures, 84–123. 183  Bland (ed), Gesta Grayorum, 31–32. On The Night of Errors, see Raffield, Shakespeare’s Imaginary Constitution, 51-52; also Raffield, Images and Cultures, 111–23; B Cormack, ‘Locating The Comedy of Errors: Revels Jurisdiction at the Inns of Court’ in Archer, Goldring and Knight (eds), The Intellectual and Cultural World of the Early Modern Inns of Court, 264–85; WN West, ‘“But this will be a mere confusion”: Real and Represented Confusions on the Elizabethan Stage’ (2008) 60 Theatre Journal 217–33. 184  Bland (ed) Gesta Grayorum, 59. The emperor is described as ‘Theodore Evanwhich, the great and mighty Emperor of all Russia, Valderomia, Muscovia and Nevogordia’, ibid. 185  ibid, 61. 186 Shakespere, Loves labors lost, sig. G.2.v. 187  Earlier in the play, Berowne states that ‘revels, dances, masques and merry hours / Forerun fair Love’ (4.3.348–49). On the probable dates of composition and first performance of Love’s Labour’s Lost,

56  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast fashion, the reference by the Princess to ‘A mess of Russians’ (5.2.361) ­resonates with the order of dining at the Inns of Court, at which inner barristers sat in ‘messes’, made up of three or four members: The Clerks commens are such young men as are admitted to the fellowship of the House, who during two of the first years, or thereabout after their admission, shall dyne and sup together, and syt one more at a Mess than the Masters commens doth …188

Possible in-jokes aside, there is a matter of greater interest than the question of who borrowed what from whom (did Shakespeare plunder the Gray’s Inn revels or did the authors of the Gray’s Inn revels plunder Shakespeare?), and that is the theme (shared by Love’s Labour’s Lost and the Gray’s Inn revels) of male friendship and its relevance to the foundation and maintenance of community. There is unmistakable stylistic conformity between the legalistic ‘itemisation’ of Navarre’s edict—‘Item, That no woman shall come within a mile of my court’ (1.1.119–120)—and the ‘Articles of the Orders’ relating to the ‘Knighthood of the Helmet’, read aloud at the Gray’s Inn revels on 3 January 1595, which incidentally refer to another probable source for Love’s Labour’s Lost, Pierre de la Primaudaye’s The French Academy: Item, Every Knight of this Order shall endeavour to add Conference and Experience by Reading; and therefore shall not only read and peruse Guizo, the French Academy, ­Galiatto the Courtier, Plutarch, the Arcadia …189

The French Academy was first published in 1577 and was translated into English by Thomas Bowes in 1586. Primaudaye dedicated the book to ‘The Most Christian King of France and Polonia, Henrie the third of that name’.190 The French Academy is striking for the strong emphasis its author places on the theme of male friendship in an institutional setting. The conceit employed is identical to that of Love’s Labour’s Lost: four young men in self-imposed exile from the world for the purposes of study. In the dedication, Primaudaye informs Henry III that the book was see Carroll (ed), Love’s Labour’s Lost, Introduction, 23–29; also GR Hibbard (ed), Love’s Labour’s Lost (Oxford, Oxford University Press, 1994) Introduction, 42–47. 188 Dugdale, Origines Juridiciales, 193. The possible connection between the ‘mess of Russians’ and the order of dining at the Inns of Court was noted in FA Yates, A Study of Love’s Labour’s Lost ­(Cambridge, Cambridge University Press, 1936) 156. See also, Berowne’s line to the three young men: ‘That you three fools lacked me fool to make up the mess.’ (4.3.198) 189 Bland (ed), Gesta Grayorum, 41. Magnusson notes several similarities between the juridical ­jargon of the edict in Love’s Labour’s Lost and ‘the satirical articles to which knights of the newly constituted Order must swear’: L Magnusson, ‘Scoff Power in Love’s Labour’s Lost and the Inns of Court: Language in Context’ (2004) 57 Shakespeare Survey 196–208, 203. Sir Francis Bacon was a major contributor to the Gray’s Inn masque, and Barbara Shapiro argues that it was through this medium that Bacon ‘brought his codification proposals directly to a legal audience’: B Shapiro, ‘Codification of the Laws in Seventeenth Century England’ (1974) (No 2) Wisconsin Law Review 428–65, 436. 190 P de la Primaudaye, The French Academy, T Bowes (trans) (London, G Bishop and Ralph ­Newbery, 1586) ‘The Authors Epistle dedicatorie to the King’, sig. A.v. Henry III died in 1589, and was succeeded as King of France by Henry IV, who reigned until his death in 1610. Henry IV was also King of Navarre between 1572 and 1610. For further commentary on The French Academy as a source for Love’s Labour’s Lost, see Carroll (ed), Love’s Labour’s Lost, Introduction, 29–30.

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  57 a dish of divers fruits, which I gathered in a Platonicall garden or orchard, otherwise called an ACADEMIE, where I was not long since with certaine young Gentlemen of Anjou my companions, discoursing together of the institution in good maners, and of the means how all estates and conditions may live well and happy.191

In the late fifteenth century, Fortescue had described the Inns of Court in the same idyllic manner: in De Laudibus, the Lord Chancellor informs the Prince that the Inns of Court are ‘in a private Place, separate and distinct by it self, in the Suburbs’. Like Primaudaye’s Platonic garden, the Inns provide ‘a Sort of an Academy, or Gymnasium’.192 There are allusions throughout The French Academy to the Ciceronian ideal of friendship, as both precursor and symbol of a political pactum or social contract.193 The bond of friendship on which (according to Aristotle) the ideal polis was founded manifested itself at the Inns of Court in an exclusively male community.194 There is an overriding and distinct homoerotic tone to the Gray’s Inn revels of 1594, notably in the reconciliation between Gray’s Inn and the Inner Temple, following the ‘Tumult’ of the Night of Errors. On the same night on which the ‘Articles of the Orders’ were read aloud, members of the two Inns entered arm in arm, as archetypal, heroic friends from the classical world: Theseus and Perithous, Achilles and Patroclus, Pilades and Orestes, and Scipio and Lelius. ‘Lastly, were presented Graius and Templarius; and they two came lovingly, Arm in Arm, to the Altar, and offered their incense as the rest’.195 In The Freudian Subject, Mikkel Borch-Jacobsen analyses the ‘riddle’ of ‘political love’ or sociality by reference to an erotic bond between members of a group. The bond does not necessarily imply a sexual relationship, although it derives from a fundamental human tendency toward integration and self-sacrifice. In Borch-Jacobsen’s analysis, sociality is a ‘degree’ of Eros: a binding force, which joins individuals severally in the form of a group, rather than coupling them as pairs.196 The symbolic coupling of the above heroic archetypes represents the fusion or conjunction of Gray’s Inn and the Inner Temple within a single institution: the commonwealth of lawyers. The legal

191 Primaudaye, French

Academy, ‘The Authors Epistle dedicatorie to the King’, sig. A.i.r. Laudibus, 109, 111. is a communion of a perpetuall will, the end whereof is fellowship of life’: Primaudaye, French Academy, 138. See Cicero, De Amicitia, 6.20: ‘amicitia nihil aliud nisi omnium divinarum humanarumque rerum cum benevolentia et caritate consensio’ [‘friendship is nothing other than agreement about divine and human affairs, accompanied by good will and affection’]: Cicero, ‘Friendship’ in On Living and Dying Well, T Habinek (trans) (London, Penguin, 2012) 75–108, 82. Habinek makes the important observation that amicitia ‘often had the connotation of “political alliance”’, and that Cicero was commenting on misalliances in the late Roman Republic: ibid, Introduction, xviii. 194  On community as the basis of the state, see Aristotle, The Politics, TA Sinclair (trans) (London, Penguin, 1992) 58–59, 61, Bk I.II.1252b15–27, 1253a29–b1. Specifically on friendship and the foundation of the state, see Aristotle, The Nicomachean Ethics, JAK Thomson (trans) (London, Penguin, 2004) 200–201, Bk VIII.I.1155a1–32. On the bond of friendship as an Aristotelian virtue, see A MacIntyre, After Virtue: A Study in Moral Theory (Indiana, University of Notre Dame Press, 2007) 155. 195  Bland (ed), Gesta Grayorum, 36. 196  M Borch-Jacobsen, The Freudian Subject, C Porter (trans) (Stanford, Stanford University Press, 1988) 152–56. 192 Fortescue, De 193  ‘Friendship

58  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast ­ rofession was a fraternity predicated upon the image of masculine friendship, p from which women were automatically excluded. Women were admitted infrequently, on licence, and their exclusion from the environs of the Inns was the subject of legislation by the governing bodies. The edict in Love’s Labour’s Lost, prohibiting the presence of women within a mile of Navarre’s court, and the subsequent alleged misconduct between Costard and the dairymaid Jaquenetta, would have resonated strongly with the young men at the Inns of Court, who were forbidden to entertain women in their chambers. For example, a Council held at Lincoln’s Inn on 27 November 1550 recorded that ‘William Smyth [was] fined £5 for keeping naughty women in his chamber’.197 At Gray’s Inn, on 30 January 1581, there was an Order made, that no Laundresses, nor women called Victuallers, should thenceforth come into the Gentlemens Chambers of this Society, unless they were full fourty years of age: and not send their maid-servants of what age soever, into the said Gentlemens Chambers …198

Nor were women permitted in the kitchen. A Parliament at the Inner Temple, held on 5 July 1579, ordered ‘that the cooks or any other officer in the kitchen shall not have any woman or woman-kind to come or resort into the kitchen’.199 The quasimonastic, scholastic (and by implication, celibate) community of the Inns was emphasised in a letter sent on 27 April 1613 by the Treasurers of the Inner Temple and the Middle Temple to James I, concerning the appointment of his nominee, Reverend Alexander Simpson (a married man), to the post of lecturer to the Inner Temple and the Middle Temple. The nomination was rejected on the singular ground that ‘but for such as are married the customs of these societies have ever been against them, not enduring women and children to reside amongst us’.200 Lynne Magnusson has discussed the cult of masculinity at the early modern Inns of Court in an article that characterised the Inns of this period as an ‘elite male speech community’. She correlates the peculiar oral and rhetorical traditions of the English legal institution with a ‘nationalist linguistic polemic’, which she claims to identify in Love’s Labour’s Lost.201 Using Berowne’s line—‘By heaven, all dry-beaten with pure scoff ’ (5.2.263) —as a starting point, she investigates the idea of ‘scoff power’: a satirical idiom, intended to inflict ‘verbal injury’ and facilitate ‘social classification’, employed by members of the Inns of Court and shared by their fictional counterparts in Shakespeare’s court of Navarre.202 In the adversarial

197  WP Baildon, JD Walker, R Roxburgh (Sir) (eds), The Black Books of Lincoln’s Inn, 6 vols (London, Lincoln’s Inn, 1897) 1: 296. 198 Dugdale, Origines Juridiciales, 286. 199  FA Inderwick (ed), Calendar of the Inner Temple Records, 5 vols (London: H Sotheran, 1896) 1: 299. 200  ibid, 2: 73–74. 201  Magnusson, ‘Scoff Power’, 197, 200. 202  ibid, 197. In The Arte of English Poesie, Puttenham discusses ‘scoff ’ at some length: ‘Or when we speake by manner of pleasantery, or mery skoffe, that is by a kinde of mock, whereof the sence is

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  59 environment of the courtroom (and of the moots in Hall), the capacity to inflict such injury was an indispensable weapon in the armoury of the common lawyer. It is apparent that ‘scoff power’ was wielded to great comic effect, sometimes with dramatic consequences, at the Inns of Court revels: notably, during the ‘Night of Errors’ at Gray’s Inn on 28 December 1594 and throughout the Middle Temple’s Candlemas revels of 1597–98. Whilst Borch-Jacobsen’s Freudian analysis of ‘group psychology’ may be useful in deconstructing the peculiar rites of ‘homosociality’ that were an inherent aspect of the Inns of Court revels,203 Magnusson’s identification of ‘speech’ as the defining feature of the commonwealth of lawyers takes us to the symbolic heart of the legal community. It was in the Halls of the Inns of Court that revels were staged, food and drink were consumed, and law was spoken in the form of readings, moots and bolts. In theological terms, it was in Hall that law was eaten as a sacred act of communion, when human law and divine law were symbolically conjoined by the act of dining in Commons.204 It is perhaps not surprising in a play self-evidently concerned with the art of linguistics, and with the uses and limitations of language,205 that there should be numerous references in Love’s Labour’s Lost to the eating of words. Commenting on the lack of learning instanced by the constable Dull, and especially his ignorance of the Latin tongue, the curate Nathaniel remarks to the schoolmaster Holofernes: ‘He hath not eat paper, as it were; he hath not drunk ink.’ (4.2.23) Nathaniel and Holofernes exchange Latin dialogue, the latter correcting the former for his incorrect use of the language, a solecism for which common lawyers were often subjected to criticism: NATHANIEL:  Laus Deo, bone intelligo. HOLOFERNES:  Bone? ‘Bone’ for ‘bene’? Priscian a little scratched,’ twill serve. (5.1.23–25)206

farrefet, & without any gall or offence. The Greekes call it [Asteismus] we may terme it the civill iest, because it is a mirth very full of civilitie, and such as the most civill men doo use’, Puttenham, Arte of English Poesie, 158; elsewhere, Puttenham refers to the ‘merry skoffe called ironia’, ibid, 128. 203  The word ‘homosociality’ is used by Borch-Jacobsen to describe the nature of relationships in a professional or working environment. He uses the term ‘“political” zone’ to describe this location: an area occupied (he posits) predominantly by men; see Borch-Jacobsen, The Freudian Subject, 76, 78. On Freud and ‘group psychology’, see ibid, 153. 204  On the religious symbolism of dining at the Elizabethan Inns, see P Goodrich, ‘Eating Law: Commons, Common Land, Common Law’ (1991) 12 The Journal of Legal History 246–67; also, Raffield, Images and Cultures, 9–20. 205  Bate and Rasmussen describe Love’s Labour’s Lost as ‘a great feast of linguistic sophistication on the theme of the inadequacy of linguistic sophistication’; J Bate and E Rasmussen (eds), The RSC Shakespeare: The Complete Works (Basingstoke, Macmillan, 2007) 305. 206  Nathaniel intends to mean: ‘Praise be to God, I understand perfectly’. The First Quarto and the First Folio (1623) both have Nathaniel using the correct Latin: ‘Laus deo, bene intelligo’, ­Shakespere, Loves labors lost, sig. F.3.r. This renders senseless Holofernes’ subsequent correction; but in the First Quarto, Holofernes’ response is anyway completely unintelligible: ‘Bome boon for boon prescian’. In his edition of The Works of Shakespeare, first published in 1733, Lewis Theobald made the necessary

60  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast In this scene, English is mixed with good Latin and bad Latin, and there is an attempt (by Armado) to add a word of Greek to proceedings.207 The macaronic dialogue elicits the following response from Moth and Costard: MOTH [To Costard]:  They have been at a great feast of languages and stolen the scraps. COSTARD [To Moth]:  O, they have lived long on the alms-baskets of words. I marvel thy master hath not eaten thee for a word, for thou art not so long by the head as honorificabilitudinitatibus. Thou art easier swallowed than a flapdragon. (5.1.32–37)

The two realists, Moth and Costard, satirise the pedant and the priest, using the imagery of ingestion to convey the idea of language being eaten, or more precisely, of scraps of language being snatched, swallowed and spewed out. ­ As the scene ­proceeds, so the imagery becomes scatological, from references to ­‘dunghill’ (5.1.63), ‘Arts-man’ (5.1.65) (with the inevitable pun on ‘Arse-man’) and ­‘posteriors’ (5.1.72), to Armado’s extraordinary announcement that Navarre will be pleased to ‘dally with my excrement’ (5.1.84). The parallels with the incoherent mess of English legal language are obvious, and the imagery is apt: it was in Hall that food was eaten and law was spoken. There is a curious literary connection between honorificabilitudinitatibus,208 Moth (pronounced ‘Mote’)209 and common lawyers of the late Elizabethan period. In 1599, the year after the publication of the First Quarto of Love’s Labour’s Lost, the satirist and acknowledged master of ‘scoff ’ Thomas Nashe published Lenten Stuffe, subtitled ‘The prayse of the red Herring’. He wrote the pamphlet after fleeing London, following the furore caused by The Isle of Dogs, which he co-authored with Ben Jonson. This play was performed at one of the playhouses on Bankside in July 1597. There is no surviving copy of The Isle of Dogs, but its satirical subject matter sufficiently infuriated the state authorities that three of the actors (including Jonson) were imprisoned, Nashe’s lodgings were searched for incriminating papers,210 and the playhouses were closed by order of the Privy Council.211

emendations, both to Nathaniel’s and Holofernes’ lines, thereby making sense of Nathaniel’s grammatical error and of Holofernes’ corrective response. See Hibbard (ed), Love’s Labour’s Lost, 181, notes to lines 26 and 27. 207 On his entrance in this scene, Armado exclaims ‘Chirrah!’ (5.1.28). Thomson suggests that Armado is attempting the Greek salutation ‘chaere’: JAK Thomson, Shakespeare and the Classics (London, Allen & Unwin, 1952) 71. 208  Reputedly the longest word, it is the dative or ablative of a Latin word meaning ‘the state of being honoured’: Carroll (ed), Love’s Labour’s Lost, 134, note to line 36. 209  See text to nn 170–71, above. 210  On 15 August 1597, the Privy Council ordered the state interrogator Richard Topcliffe to ‘peruse soch papers as were fownd in Nash his lodgings’: PRO, Privy Council Register, Eliz. 1, fo. 436. 211  Nashe referred to ‘the tempestes that arose at his [The Isle of Dogs] birth, so astonishing outrageous and violent as if my braine had bene conceived of another Hercules’: T Nashe, Nashes Lenten Stuffe (London, Nicholas Ling and Cuthbert Burby, 1599) 2. That he was writing Lenten Stuffe in the autumn or winter of 1598 may be adduced from the opening sentence: ‘The straunge turning of the Ile of Dogs, fro a commedie to a tragedie two summers past’, ibid, 1. In his diary entry for 10 August 1597, Philip Henslowe records that the Admiral’s Men had been licensed to perform ‘at my howse [the

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  61 Nashe pre-empted arrest by fleeing London prior to the search of his lodgings and ­escaping to Great Yarmouth, where he arrived in the autumn of 1597. Here, he wrote an idiosyncratic history of Great Yarmouth, entitled Lenten Stuffe (the subtitle ‘In prayse of the red Herring’ refers to a local staple of the fishing industry, the kipper), completing it by the end of 1598 or early 1599. The work was published in 1599 by Nicholas Ling and Cuthbert Burby, the publisher of the First Quarto of Love’s Labour’s Lost. Nashe makes specific reference to Love’s Labour’s Lost through his use of the word honorificabilitudinitatibus: ‘Physitions deafen our eares with the Honorificabilitudinitatibus of their heavenly Panachea their ­soveraigne ­Guiacum’;212 and there is some similarity between the description of Moth as a ‘halfpenny purse of wit’ (5.1.60) and Nashe’s description of himself in Lenten Stuffe as Pierse Pennilesse.213 The editors of the 1923 Cambridge edition of Love’s Labour’s Lost (Sir Arthur Quiller-Couch and John Dover Wilson) made much of the possible allusions to Nashe in the character of Moth.214 In the Introduction to his edition of the play, GR Hibbard asks what these erudite cross-references have to do with Love’s Labour’s Lost.215 As he notes: ‘Plays do not work in the way the Cambridge editors seem to have imagined.’216 This statement is undoubtedly true: theatre operates upon the emotions as well as the intellect, affecting and manipulating the subjective response of its audience through the presentation and reception of visual and aural images. In this respect, theatre shares with law a rhetorical strategy, the persuasive power of which is intended to capture the imagination of the individual.217

Rose Playhouse] aforsayd & not in any other howsse publicke a bowt London for the space of iij yeares beginynge Immediately after this Restraynt is Recaled by the lordes of the cownsell wch Restraynt is by the menes of playinge the Ieylle of doogs’: RA Foakes (ed), Henslowe’s Diary (Cambridge, Cambridge University Press, 2002) 240. 212 Nashe, Lenten Stuffe, 24. For a study of Nashe and the genre of the pamphlet in late Elizabethan England, see L Hutson, Thomas Nashe in Context (Oxford, Clarendon Press, 1989). 213 Nashe, Lenten Stuffe, 2. On the puns in the play upon ‘purse’, ‘pen’, ‘penny’, and the possible ­allusions to Nashe, see A Quiller-Couch and JD Wilson (eds), Love’s Labour’s Lost (Cambridge, ­Cambridge University Press, 1923) Introduction, xxii. 214  The editors paid particular attention to Armado’s description of Moth as ‘tender juvenal’ (1.2.10), arguing that although there was some dispute over whether the ‘young Iuvenall, that byting Satyrist’ of Robert Greene’s A Groatsworth of Wit (1592) was Nashe, ‘there can be no question’ that Nashe was the ‘gallant young Juvenal’ of Francis Meres’ Wits Treasurie (1598). More obscurely, they argue that ‘Neshe’ was a variant of ‘Nashe’, and that ‘nesh’ (or ‘nash’) was a synonym of ‘tender’: ­Quiller-Couch and Wilson (eds), Love’s Labour’s Lost Introduction, xxii. On the identity of Greene’s ‘young Iuvenall’, see P Drew, ‘Was Greene’s “Young Juvenal” Nashe or Lodge?’ (1967) 7 Studies in E ­ nglish Literature, 1500–1900 55–66. 215  Hibbard (ed), Love’s Labour’s Lost, Introduction, 53. 216  ibid, 54. 217  On ‘the manipulation of subjective attachment through the play of images’ and ‘the capture of the subject by the institution’, see P Legendre, Law and the Unconscious: a Legendre Reader, P Goodrich (trans), with A Pottage and A Schütz, P Goodrich (ed) (Basingstoke: Macmillan, 1997) 258. See also, Goodrich, Languages of Law: ‘The entry of the individual into the symbolic … is the condition of institutional existence, the capture of the subject by law’, 282.

62  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast The ingenious erudition of the Cambridge editors of Love’s Labour’s Lost, regarding the connection between Nashe and Moth, unconsciously mimicked the pedantry of Holofernes and Nathaniel. But their academic conjecture is not without its merits, echoing as it does a major theme of the play: the meaning of words and the abstruseness of academic study. Also, if Moth were intended as a caricature of Nashe, then the act of imitation is illustrative of a mimetic and almost indivisible synergy or cross-fertilisation between theatre, satire and the legal community at the Inns of Court. Throughout Lenten Stuffe, Nashe alludes to the episode of the ‘Muscovites’ in both Love’s Labour’s Lost and the Gray’s Inn revels of 1594/95. There is a reference to Russia in ‘The Epistle Dedicatorie’, which may also subtly allude to feasting at the Gray’s Inn revels: ‘In Ruscia there are no presents but of meate or drinke’.218 This is followed by references to ‘blackamoors’ and ‘messes’: sailors, returning home from their travels, ‘tell of nothing but eating Tallow and yong black-amores, of five and five to a Rat in every messe’.219 It appears that Nashe created the idiomatic use of the phrase ‘red herring’, which in modern parlance refers to a diversionary tactic that distracts from the salient issue. He makes his subversive intention clear when he informs the reader that ‘to draw on hounds to a sent, to a redde herring skinne there is nothing comparable.’220 The ostensible theme of Lenten Stuffe—a history of Great Yarmouth and its kipper industry—is a distraction from Nashe’s latent purpose in this pamphlet, which is to satirise the legal institution that he claims wrongly criminalised him, following the performance of The Isle of Dogs in 1597. In a marginal note, he protests that ‘I having begun but the induction and first act of it [the play], the other foure acts without my consent, or the least guesse of my drift or scope, by the players were supplied, which bred both their trouble and mine to.’221 Thus began his troubles, and thereby the thematic origin of his polemic against the legal profession, thinly veiled as a history of the smoked (red) herring industry in Great Yarmouth. He asserts that he was not given ‘elbowe roome enough to explane’ himself, as a consequence of which: Out steps me an infant squib of the Innes of Court, that hath not halfe greased his dining cappe, or scarce warmed his Lawyers cushion, and he to approve hymselfe an extravagant statesman catcheth hold of a rush, and absolutely concludeth, it is meant of the Emperour of Ruscia, and that it will utterly marre the traffike into that country if all the Pamphlets be not called in and suppressed, wherein that libelling word is mentioned.222

218 Nashe, Lenten

Stuffe, sig. A.3.v. ibid, 28. ibid, 70. 221  ibid, 2. 222  ibid, 61. Nashe alludes to John Davies and the ‘bastinado’ incident at the Middle Temple in February 1598, suggesting that Davies’s pretensions to nobility—‘if but a head or a tayle of any beast, he boasts of in his crest or his scutcheon’—had led to his humiliation and his subsequent revenge, ‘to thresh downe the hayry roofe of that brayne Richard Martin’s that so seditiously mutined against hym with the mortiferous bastinado’, ibid. 219  220 

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  63 The young lawyers who, in January 1595, enacted the roles of ambassadors from the Emperor of Russia to the Prince of Purpoole are the ‘infant squibs[s] of the Innes of Court’: the same lawyers who might have prosecuted Nashe for the offence of seditious libel in 1597, had he been arrested.223 The realms of the actual and the imaginary are conjoined and synthesised in Nashe’s stylised depiction of a jurisprudence, at once fantastical and quotidian. Any thought of restraint is abandoned as he launches a full-scale attack on the spuriousness of legal education. The violence of Nashe’s diatribe exceeds by far the earlier censures of Abraham Fraunce. The focus of his impassioned critique is words, and their grotesque misuse by lawyers. For Nashe, lawyers ‘hath words inough to make fooles of tenne thousand’.224 He excludes from his excoriating criticism those whose consciences are ‘untaynted … wyth corruption’, but for the most part common lawyers are ‘Latinlesse dolts saturnine heavy headed blunderers’. He doubts whether Ovid and Aristotle, had they been alive when he wrote Lenten Stuffe, would ‘have consented to study this uncivill Norman hotpotch, this sow of lead’. In short, lawyers are nothing more than ‘self-conceited misinterpreters’.225 It is evident from the above that Nashe was obsessively concerned with the interpretation of words, especially in the context of the courtroom. Nashe’s preoccupation with the psychopathy of legal discourse was instanced in an earlier work of his, The Terrors of the Night, published in 1594. This pamphlet is noteworthy, if only for the purposes of the present analysis, because it draws together the themes of the legal profession, satire, and the ‘Moth/Mote’ motif. Nashe is unequivocal in associating the practice of common law with the powers of evil. In the following passage, he refers to the four law terms of the year, during which cases were heard at the law courts in Westminster Hall: If in one man a whole legion of divells have bin billetted? how manie hundred thousand legions retaine to a Tearme at London. If I said but to a Taverne, it were an infinite thing. In Westminster Hall a man can scarce breath for them: for in every corner they hover as thick as moates in the sunne.226

223  The sentence for seditious libel invariably involved the branding and mutilation of the convicted defendant, as well as public burning by the hangman of the offending book(s) or pamphlet(s): see Raffield, Images and Cultures, 190–91. Soon after the publication of Lenten Stuffe, all of Nashe’s works were suppressed (along with Davies’s Epigrams and Marlowe’s Elegies), following the Bishop’s Ban of 1599: ‘That all nasshes bookes and D Harvyes bookes be taken wheresoever they maye be found and that none of theire bookes bee ever printed hereafter’, quoted in McCabe, ‘Elizabethan Satire’, 188. For a biography of Nashe, see C Nicholl, A Cup of News: the Life of Thomas Nashe (London, Routledge & Kegan Paul, 1984). 224 Nashe, Lenten Stuffe, 63. 225  ibid, 64. 226  T Nashe, The Terrors of the night Or, A Discourse of Apparitions (London, William Iones, 1594) sig. B.4.r. The four law terms are Hilary, Easter, Trinity and Michaelmas. See H Spelman (Sir), ‘The Original of the Four Terms of the Year’ in The English Works of Sir Henry Spelman, Kt. Published in his life-time; together with his posthumous works, Relating to the Laws and Antiquity of England, 2 vols ­(London, D Browne, 1723) 2: 82–95; also, Raffield, Shakespeare’s Imaginary Constitution, 124–25.

64  ‘Fie, painted rhetoric!’ Common Law, Satire and the Language of the Beast The lawyers ‘hover’, not only like moths, but also like so many redundant words—‘moates’/‘motes’. The impression is one of dehumanisation. The hovering ‘moates’ in Nashe’s Westminster Hall have much in common with a much later ­literary incarnation, the attorney Mr Vholes in Dickens’s Bleak House, whose ‘black buttoned-up unwholesome figure’ glides rather than walks, devours his client, and has ‘something of the Vampire in him’.227 The lawyers depicted by Nashe (and later, by Dickens) are monstrous phantasms of a discredited profession: malevolent shades, rendered all the more terrible by their apparent human form. Towards the end of Love’s Labour’s Lost, Rosaline reproves Berowne for his ‘scoffing’, informing him that ‘the world’s large tongue / Proclaims you for a man replete with mocks, / Full of comparisons and wounding flouts’ (5.2.810–12). In order to win her love, he must undertake a very practical task. He must leave the cloistered court of Navarre, attend the sick and dying, and make them laugh, ‘With all the fierce endeavour of your wit’ (5.2.821). By this stage in the play, the outside world has intruded upon the little academe in the person of Marcadé, who arrives in Navarre to announce the death of the King of France. From this moment, the sunlit mood darkens, ‘The scene begins to cloud’. (5.2.696) Rosaline enjoins Berowne to burst the bubble of art and employ his rhetorical skills in the service of the commonwealth. Her peculiar injunction, that daily for 12 months he must ‘Visit the speechless sick’ (5.2.819) and ‘enforce the pained impotent to smile’ (5.2.822) serves as a reminder of the true purpose, the ethical imperative, of rhetoric. Language is the essential means through which social change may be effected. The form of language defines our relationship with others, and is therefore central to the creation of community. James Boyd White has written extensively on the subject of law not as a system of rules or institutional structure, but as a form of rhetoric. He describes rhetoric ‘not as a failed science nor as an ignoble art of persuasion’, but rather ‘as the central art by which culture and community are established, maintained, and transformed.’228 There was an ethical disjuncture between the Aristotelian ideal of rhetoric, as the means by which truth and justice were maintained, and the ‘ende of Rhetorique’, as determined by Sir Thomas Wilson, which was merely ‘To teach. To delight. And to persuade.’229 The underlying complaint—of Rosaline regarding Berowne, of Abraham Fraunce regarding the ‘brave Magnificoes’ of the Inns of Court,230 and of Thomas Nashe regarding

227 Dickens, Bleak

House, 976, 924. JB White, Heracles Bow: Essays on the Rhetoric and Poetics of the Law (Madison, The University of Wisconsin Press, 1985) 28. 229 Wilson, Arte of Rhetorique, 2. 230 Fraunce, The Lawiers Logike, sig.4.r. 228 

Love’s Labour’s Lost, the Inns of Court and the Sweet Smoke of Rhetoric  65 the ‘mercenary tongues’ of common lawyers231—was that where rhetoric lacked social context and ethical framework, then it was nothing more than a compendium of specious tricks. It is appropriate that the last word on the matter should go to Fraunce: ‘Woordes are lyke leaves, as Horace reporteth: leaves spring before Summer, and fall before Winter; and the same inconstancy is in words.’232

231  ‘…

(lie they never so lowdly)’, Nashe, Lenten Stuffe, 64. Lawiers Logike, sig. 2.r. Fraunce is referring here to lines from Horace’s Ars Poetica (lines 60–63): ‘Ut silvae foliis pronos mutantur in annos, prima cadunt, ita verborum vetus interit aetas, et iuvenum ritu florent modo nata vigentque’. Ben Jonson translated these lines as follows: ‘As woods whose change appears / Still in their leaves, throughout the sliding years, / The first borne dying; so the aged Fate / Of words decay, and phrases borne but late / Like tender Buds is shoot up, and freshly grow’, Horace, Quintus Horatius Flaccus, His Art of Poetry, B Jonson (trans) (London, John Benson, 1640) sig. B2.v. 232 Fraunce, The

2 Princes Set Upon Stages: Macbeth, Treason and the Theatre of Law I.  Compassing or Imagining Regicide ‘Between the acting of a dreadful thing / And the first motion, all the interim is / Like a phantasma, or a hideous dream.’ (2.1.63–65) So muses Brutus in Julius ­Caesar. He has not slept since Cassius first ‘whet’ him against Caesar. He has been ­contemplating and imagining not only the awful act of murder, but also the ultimate betrayal of his ‘dear friend’ (3.2.18) Caesar. On his return to Denmark, following an attack by pirates on the ship bearing him to England, Hamlet informs H ­ oratio that ‘The interim is mine’ (5.2.73), referring presumably to the time between the present and the moment at which the Prince will exact his revenge against Claudius. After the weird sisters vanish, having told Macbeth that he ‘shalt be king hereafter’ (1.3.50) and that Banquo ‘shalt get kings’ (1.3.48), Macbeth tells Banquo that at a future time, ‘The interim having weighed it’ (1.3.155), they will speak openly to each other about the prophesies of the weird sisters. The ‘interim’ to which each of the above characters refers constitutes the period from which the initial thought of assassination was engendered to the moment when the deadly plan was either executed or set in motion.1 This was the time in which treason was hatched and plotted; this was the ‘interim’ that comprised the subject of examination and inquisition in trials for High Treason throughout the early modern period, as prosecutors sought to reveal the character, as well as the actions and intentions, of the accused. In this respect at least, the form and structure of these trials bore more than a passing resemblance to Shakespearean tragedy. All three of the above Shakespearean protagonists—Brutus, Hamlet, and Macbeth—not only contemplate murder; they compass or imagine the death of the sovereign ruler, thereby committing the heinous crime of High Treason.2 Whether the deposition 1  Frank Kermode notes of Macbeth that ‘The action before the murder is situated in this “interim”’: F Kermode, Shakespeare’s Language (London, Penguin, 2001) 202. Of the Porter’s joke about drink being ‘an equivocator with lechery’ (2.3.29–30), because of the tendency of alcohol to stimulate sexual desire but impair performance, Kermode notes that ‘his words have a more general application; it [drink] comes between desire and performance, the position of Macbeth in the interim time’; ibid, 211. 2  Hale offered the following definition of ‘compassing’ the death of a king, thereby equating his demise with deposition or imprisonment: ‘Declaring by an open act a design to depose or imprison

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of a supreme magistrate might ever be lawful was of course a contentious issue: the subject provided material for extensive philosophical, political and theological debate in early modern England. It is a topic that I address in the final section of this chapter. Any one of these plays—Julius Caesar, Hamlet or Macbeth—would have served as a suitable framework within which to examine the law of treason in early modern England, but only one of these has especial resonance with a particular act of treason, the object of which was to kill the King of England in a spectacular explosion of violence. It is mainly for this reason that of the above three plays I refer almost exclusively to Macbeth throughout this chapter, a play that Shakespeare wrote in the immediate aftermath of the 1605 ‘Powder Treason’: the Gunpowder plot to blow up the Houses of Parliament, the principal intention being to kill James I, Queen Anne and Henry, Prince of Wales.3 In the course of my analysis, I examine the form and process of criminal trials for the offence of High Treason. Obviously, the trial of the Gunpowder plotters in January 1606 is of self-evident importance, and closely related to these proceedings is the trial of Father Henry Garnet SJ (Superior of the Jesuits in England), who received information about the Gunpowder plot while under the seal of the sacrament of Confession, in July 1605. Relevant also (especially to the issue of a contested right to the throne, which is a peripheral but distinct theme in Macbeth) is the earlier trial (in 1586) of Mary Queen of Scots. There are parallels between the depiction by Shakespeare of Lady Macbeth and Mary’s alleged ‘pretending Title to the Crown of this Realm of England’ (although of course it was to the crown of Scotland that Lady Macbeth aspired, a crown that Mary had worn until her abdication in 1567).4 The sense that pejorative (and contentious) narratives of the Stuart queen’s tempestuous life provided inspiration for the characterisation of Lady Macbeth is compounded by the depiction of Mary Queen of Scots in George Buchanan’s imaginative narrative (translated into English in 1571, having originally been written in Latin) of the part played by Mary and James Hepburn, Earl of Bothwell, in the murder of her second husband, Henry Stuart, Lord Darnley. Buchanan’s lurid account (entitled Ane Detectioun of the duinges of Marie Quene of Scottes, touchand the murder of hir husband, and hir conspiracie, adulterie, and pretensed marriage with the Erle Bothwell) of the alleged involvement of Mary in the murder of a king (albeit a king consort) is rendered all the more extraordinary by the knowledge that Buchanan acted as her tutor and official court poet in the early

the King, is an Overt act to manifest a compassing of His Death’: M Hale (Sir), Pleas of the Crown: Or, A Methodical Summary of the Principal Matters relating to that Subject (Savoy, Dan Brown, J Walthoe, M Wotton, 1716) 11. On treason in early modern England, see J Bellamy, The Tudor Law of Treason: an Introduction (London, Routledge, Kegan & Paul, 1979). 3  The editor of the Oxford edition of Macbeth argues that the original play ‘was probably written in the second half of 1606’; while the revised version, with ‘Hecate and her song and dance team’ (3.5; 4.1), was written in 1609–10: W Shakespeare, Macbeth, N Brooke (ed) (Oxford, Oxford University Press, 2008) Introduction, 63, 64. All references to the text of the play are from this edition. 4  ‘Proceedings against Mary Queen of Scots’ in Anonymous, A Compleat Collection of State-Tryals, and Proceedings upon Impeachments for High Treason, 4 vols (London, Timothy Goodwin, 1719) 1: 125.

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1560s and was employed as tutor to her son, James VI, throughout his childhood.5 Buchanan’s polemical dialogue on the legitimate cause of deposing a tyrannical ruler, entitled De Jure Regni Apud Scotos Dialogus, is one of several works of ­Elizabethan political theory that I consider in the final section of this chapter, on the subject of kingship and tyranny. The fourth trial I examine is that of Sir Walter Raleigh, held at Winchester in November 1603. This trial is interesting not least for incidentally highlighting issues concerning the status of evidence in treason trials. The proliferation of ‘Treason Acts’ throughout the sixteenth century (concerned as much with disavowals of religious conformity as they were with actual threats against the person of the monarch and the government of the state) caused some confusion as to the requirement of witnesses to the alleged offence.6 Hence, prosecutors resorted invariably to the ancient, more generic Statute of Treasons 1352 (25 Ed.3. Statute 5. cap.2), which (conveniently for the crown) did not require witnesses to be called in order for a guilty verdict to be reached.7 The cases cited above, which form the basis of analysis in this chapter, have come to be regarded as famous (or infamous) ‘show trials’. The decision here to choose these particular cases for consideration was made precisely because of the public notoriety of their protagonists. Of course, it would have been possible to examine treason trials from the Elizabethan and Jacobean era the accused in which were of a lower public profile than the above-named defendants; but my intention is to draw attention to parallels between the peculiar mimetic quality of state trials for the offence of High Treason and particular aspects of Shakespearean tragedy, notably the hubristic tendencies of its heroes. In this respect, comparison between the alleged criminal intentions of the accused in the treason trials under discussion and Macbeth’s ‘Vaulting ambition, which o’erleaps itself / And falls on th’other -’ (1.7.27) is both irresistible and crucial. The Statute of Treasons 1352 codified the common law offence of treason, summarising the principal crime thus: When anyone attempts to compass or imagine the death of our lord the king, my lady his consort, or their eldest son and heir, or if anyone violates the king’s consort or the king’s eldest unmarried daughter or the consort of the king’s eldest son and heir …8

5  Buchanan fled Scotland in 1539, following religious persecution of the Lutherans. At the Collège de Guyenne in Bordeaux, he counted Michel de Montaigne among his pupils. For details of Buchanan’s life, see D Macmillan, George Buchanan: A Biography (London, Simpkin, Marshall, and Co, 1906). 6  These included: Treasons Act 1534 (26 H.8. cap. 13), under which it was an act of High Treason to ‘slanderously and maliciously publish and pronounce, by express writing or words, that the king should be heretic, schismatic, tyrant, infidel or usurper of the crown’; Treason Act 1547 (1 Ed.6. cap. 12); Treason Act 1551 (5 & 6 Ed.6. cap. 11); Treason Act 1554 (1 & 2 Ph & M. cap. 10); Treasons Act 1570 (13 Eliz.1. cap. 1). See Hale, Pleas of the Crown, 21–22. 7  See Bellamy, Tudor Law of Treason, 50; also, R Lemon, Treason by Words: Literature, Law, and Rebellion in Shakespeare’s England (Ithaca, NY, Cornell University Press, 2007) 167, fn 17. 8  Quoted in M Evans and RI Jack (eds), Sources of English Legal and Constitutional History (Sydney, Butterworths, 1984) 183. The offence of High Treason was distinguished from that of Petty Treason, in

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As mentioned above, the Statute of Treasons 1352 remained of considerable practical importance to the prosecuting authorities of the sixteenth and early s­ eventeenth century, because if a prosecution was brought under this statute the crown was not required to produce witnesses in order to proffer evidence relating to the guilt of the alleged traitor. In relation to the trial of Sir Walter Raleigh in 1603, the demand made by the accused that the crown should produce at least two witnesses either of whom might attest to his treason received short shrift from the court. In his defence, Raleigh alluded to The Treason Act 1547 (1 Ed.6. cap.12), s 22 of which required that a person charged with treason must be ‘accused by two sufficient and lawful witnesses’. Unfortunately for Raleigh, that rule was repealed under s 11, Treason Act 1554 (1&2 Ph. And M. cap.10), except in those cases of treason specified under the new statute.9 As one of the commissioners in the trial of Raleigh, Sir Francis Gawdy, informed the accused: ‘The Statute you speak of concerning two Witnesses in case of Treason, is found to be inconvenient, therefore by another law it was taken away’.10 When Raleigh retorted that criminal trials in England required a jury and witnesses, he was informed by the Chief Justice of the King’s Bench (Sir John Popham) that trial proceeded by examination: ‘if three conspire a Treason, and they all confess it; here is never a Witness, yet they are condemned.’ In defence of the argument that witnesses in a treason trial were not required, his fellow judge, Sir Peter Warburton (a justice in the court of Common Pleas), gave the following hypothetical (and troubling) example, incidentally making a prescient allusion to the discovery of the murder of Duncan in Macbeth: ‘If one should rush into the king’s Privy-Chamber, whilst he is alone, and kill the king (which God forbid) and this man be met coming with his sword drawn all bloody; shall not he be condemned to death?’11 The impertinent interjection of Raleigh that ‘I know not how you conceive the law’ received the following swift and emphatic rebuff from the Lord Chief Justice: ‘Nay, we do not conceive the Law, but we know the Law.’12 In the opinion of Popham, there was no legitimate counter to the argument that the judges of common law were irrefutably lex loquens, the speaking law. In relation to Macbeth, the trial of Raleigh was notable for the depiction of its subject, not only as a villain and a traitor (especially as portrayed by Sir Edward Coke, in his ferocious and histrionic prosecution of the accused), but as a flawed tragic hero, along lines defined by the literary critic AC Bradley. For Bradley,

which ‘a servant kills his master, or a wife her husband, when a layman or religious kills his superior to whom he owes faith and obedience …’, ibid. 9  These exceptional cases related specifically to the legal protection extended to King Philip, under ss 1–6 of the 1554 Act. 10 ‘The Trial of Sir Walter Raleigh, knt’ in TB Howell (ed), A Complete Collection of State Trials, 21 vols (London, Longman, Hurst, Rees, Orme and Browne, 1816) 2: 18. 11  ibid. In Macbeth, immediately following the murder of Duncan, Lennox informs Malcolm that ‘Those of his chamber, as it seemed, had done’t: / Their hands and faces were all badged with blood, / So were their daggers which, unwiped, we found / Upon their pillows’ (2.3.103–106). ‘Those of his chamber’ were of course innocent. 12  ‘The Trial of Sir Walter Raleigh, knt’ in Howell (ed), State Trials, 2: 18.

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Shakespearean tragedy necessarily ‘leads up to, and includes, the death of the hero’, but ‘the story depicts also the troubled part of the hero’s life which precedes and leads up to his death’.13 The indivisible link between character and ‘story’ were, for Bradley crucial elements in the tragic dramas of Shakespeare: there was a ‘causal connection of character, deed, and catastrophe.’14 I argue throughout this chapter that in the trials for High Treason under discussion, the identical ‘causal connection’ between character and action was invariably made by the crown in order to portray the symbolic fall from grace of the accused. In this sense, the trial for High Treason of Raleigh functioned as a form of tragic morality play, in which the fate of its hubristic protagonist was predetermined.15 The dichotomy between good and evil was a major theme of Raleigh’s trial in November 1603. Speaking on behalf of the crown as Attorney-General, Coke stated that ‘The imitation of evil ever exceeds the Precedent; as on the contrary, imitation of good ever comes short.’16 Accordingly, Raleigh’s treacherous actions were ‘the most horrible practices that ever came out of the bottomless pit of the lowest hell.’ There was a didactic aspect to Coke’s portrayal of Raleigh as ‘the absolutest Traitor that ever was’,17 consonant with the function of tragedy, as defined by Sir Philip Sidney: ‘that with stirring the affects of admiration and commiseration teacheth the uncertainty of this world, and upon how weak foundations gilden roofs are builded’.18 The form of the treason trial shared with tragic drama the Aristotelian criteria of mimesis: of plot (in the juridical sense of the organisation and presentation of events in a forensic setting) as the imitation of action.19 In October 1618, confirming the sentence of death passed upon Raleigh in 1603, the Attorney-General (Sir Henry Yelverton) announced to the court of King’s Bench that Raleigh ‘hath been a star, at which the world hath gazed; but stars may fall, nay they must fall, when they

13 AC Bradley, ‘The Substance of Shakespearean Tragedy’ in Shakespearean Tragedy: Lectures on Hamlet, Othello, King Lear, Macbeth (Basingstoke, Palgrave Macmillan, 2007) 2, 3. 14  ibid, 8. Of equal application to Raleigh’s fall is the observation of Bradley that Shakespeare’s tragic heroes ‘are exceptional beings. We have seen already that the hero, with Shakespeare, is a person of high degree or of public importance, and that his actions or sufferings are of an unusual kind’: ibid, 12. 15  In his discussion of Shakespearean Tragedy, Dollimore identifies the strong moral dimension to Bradley’s interpretation of tragedy: J Dollimore, Radical Tragedy: Religion, Ideology and Power in the Drama of Shakespeare and his Contemporaries (Basingstoke, Palgrave Macmillan, 2004) 54. The issue of predetermination is highly relevant to Macbeth; see I Ward, Shakespeare and the Legal Imagination (London, Butterworths, 1999) 166–67. On the Calvinistic fatalism of Macbeth, see J Stachniewski, ‘Calvinist Psychology in Macbeth’ (1988) 20 Shakespeare Studies 169–89. 16  ‘The Trial of Sir Walter Raleigh, knt.’ in Howell (ed), State Trials 2: 5. In brief, Raleigh was accused (with Henry Brooke, Lord Cobham) of involvement in the Main plot, the intention of which was to incite rebellion, invite invasion from Spain, murder James I and the royal family, and establish Arbella Stuart on the throne. See M Nicholls, ‘Sir Walter Ralegh’s Treason: A Prosecution Document’ (1995) 110 (438) The English Historical Review 902–24. 17  ‘The Trial of Sir Walter Raleigh, knt.’ in Howell (ed), State Trials, 2: 9. 18  P Sidney (Sir), ‘The Defence of Poesy’ in G Alexander (ed), Sidney’s ‘The Defence of Poesy’ and Selected Literary Criticism (London, Penguin, 2004) 27–28. 19  ‘Tragedy is not an imitation of persons, but of actions and of life’: Aristotle, Poetics, M Heath (trans) (London, Penguin, 1996) 11, 4.3.

Of Such Horror, and Monstrous Nature: The Juridical Enactment of Betrayal  71 trouble the sphere in which they abide.’20 The trial of Raleigh (like each of the trials considered in this chapter) was less a forensic process intended to establish the truth, than a dramatic enactment of the fall of man, the guilty verdict being almost a foregone conclusion. In The Third Part of the Institutes, subtitled Of High Treason, and other Pleas of the Crown, and Criminall Causes (first published in 1644, 10 years after the death of its author), Coke expounded at length on the Statute of Treasons, 1352. He explained the linguistic provenance of the word ‘treason’ as follows: ‘Treason is derived from [trahir] which is treacherously to betray. Trahue, Betrayed, and Trahison, per contractionem, Treason, is the betraying it selfe.’21 In Shakespeare’s Imaginary Constitution, I discuss the significance of treason and betrayal in a purely temporal context. At a symbolic level, treason represented a rejection of the Aristotelian principle that amicitia, concord, or friendship provided the basis of the ideal polis; therefore (and conversely) the act of treason was perceptibly a betrayal not only of the state, but also of the laws of love.22 In the final section of this chapter, I engage with the metaphysical aspect of betrayal, and the suggestion that (to the early modern mind) treason was an act of infidelity and falsehood perpetrated against the spiritual body of the monarch, thus constituting an act of rebellion against Imago Dei, the image of God. Inevitably, this involves discussion of the theory of the king’s two bodies, and the relevance of late medieval political theology to changing perceptions of governance in Jacobean England.

II.  Of Such Horror, and Monstrous Nature: The Juridical Enactment of Betrayal In Macbeth, Banquo refers to ‘the insane root / That takes the reason prisoner’ (1.3.84–85). He alludes here to the appearance of the weird sisters, who prophesied both Macbeth’s kingship and Banquo’s fatherhood of kings: did they actually appear or were they an imaginary manifestation of the irrational mind? In literal and generic terms the ‘root’ of all insanity, which Banquo cites, was those plants

20  ‘The

Trial of Sir Walter Raleigh, knt’ in Howell (ed), State Trials, 2: 34. Coke (Sir), The Third Part of the Institutes of the Laws of England (London, W Lee and D Pakeman, 1644) 4. 22  On treason as unfaithfulness or the betrayal of love, with particular reference to the trial of the Earl of Essex in February 1601, see P Raffield, Shakespeare’s Imaginary Constitution (Oxford, Hart Publishing, 2010) 109–10. The Aristotelian principle to which I refer is expounded in Aristotle, The Nicomachean Ethics, JAK Thomson (trans) (London, Penguin, 2004) 200, Bk VIII.I.1155a5–10; 201, Bk VIII.I.1155a20–25. Selden referred to the Ovidian Golden Age, in which subjects were governed by ‘those Laws which the Platonicks call the Laws of Second Venus’: J Selden, The Reverse or Back-Face of the English Janus, R Westcot (trans) (London, Thomas Basset & Richard Chiswell, 1682) 11; on Selden and the ‘laws of Venus’, see P Goodrich, The Laws of Love: a Brief Historical and Practical Manual ­(Basingstoke, Palgrave Macmillan, 2006) 6–12. 21 E

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that possessed narcotic qualities, such as henbane, hemlock, deadly nightshade and mandrake.23 In more precise, juridical terms, ‘the insane root’ has strong connotations of treason, as I shall endeavour to demonstrate. In the ­latter, more technical sense, Macbeth has indeed eaten on the insane root, as he is embarked upon a course of High Treason, the murder of a king.24 The trial of the surviving Gunpowder plotters (Robert Winter, Thomas Winter, Guy Fawkes, John Grant, Ambrose Rookwood, Robert Keyes, Thomas Bates and Sir Everard Digby) took place at Westminster on 27 January 1606.25 It would be speculative in the extreme to suggest that Shakespeare wrote Macbeth as an emphatic rejection of Coke’s assertion at the trial that the Gunpowder plot was ‘sine exemplo, beyond all examples, whether in fact or fiction, even of the tragick poets, who did beat their wits to represent the most fearful and horrible murders’.26 Conjecture over the inspiration and motive (as opposed to the source material) for writing Macbeth notwithstanding, it is undeniable that Shakespeare’s play incorporates certain philosophical themes that were the subject of much forensic oratory in the trial of the plotters. The most notable of these themes concerns the breach of ordo naturae, no more appalling example of which was the murder of a king. As Macbeth announces (as much to himself, as to Macduff), having committed the deed, ­Duncan’s ‘gashed stabs looked like a breach in nature’ (2.3.115). In literal terms, the stab wounds were exactly that: breaches or clefts in the body natural of ­Duncan; but the metaphysical breach in nature was the destruction of the natural order, inherent in the act of regicide.27 Coke addressed the court in his capacity as Attorney-General, but the opening speech was made by the King’s Serjeant, Sir Edward Phelips, who informed the court that the offence of which the accused were charged was ‘of such horror, and monstrous nature, that before now, the tongue of man never deliver’d; the ear

23  Raphael Holinshed recorded that the Scots gained victory over the Danes in 1040 by drugging them: R Holinshed, ‘The Historie of Scotland’ in The Second Volume of Chronicles (FT, London, 1586) 2: 170. James Shapiro claims that Banquo’s line derives from Plutarch’s Life of Antony, where the author describes the famine in Antony’s camp during the Parthian campaign, and the consequent reliance for survival on ‘herbs and roots’: quoted in J Shapiro, 1606: William Shakespeare and the Year of Lear (London, Faber & Faber, 2015) 267. 24  The possible involvement of Banquo in any treasonable actions is terminated abruptly by his murder; see M Hawkins, ‘History, Politics and Macbeth’ in JR Brown (ed), Focus on Macbeth (London, Routledge and Kegan Paul, 1982) 155–88, 168, 169. 25  For an account of events leading up to the Plot (with especial reference to the persecution of Catholics in Elizabethan and early Jacobean England) and for biographical details of its protagonists, see A Fraser, The Gunpowder Plot: Terror and Faith in 1605 (London, Weidenfeld and Nicolson, 2002). 26 ‘The Trials of Robert Winter, Thomas Winter, Guy Fawkes, John Grant, Ambrose Rookwood, Rob Keyes, Thomas Bates, and Sir Everard Digby’ in Howell (ed), State Trials, 2: 167. There is a peculiar consonance between the actions and motives of the Gunpowder plotters (especially the principal instigator, Robert Catesby) and the assertion by Hegel that Shakespeare’s tragic heroes are destroyed because of their ‘decisive adherence to themselves and their aims’: GWF Hegel, ‘“Dramatic Poetry,” from Aesthetics: Lectures on Fine Art’ in PA Kottman (ed), Philosophers on Shakespeare (Stanford, ­Stanford University Press, 2009) 57–85, 79. 27  Even before he has killed Duncan, Macbeth comments that ‘Now o’er the one half world / Nature seems dead’ (2.1.50–51).

Of Such Horror, and Monstrous Nature: The Juridical Enactment of Betrayal  73 of man never heard; the heart of man never conceited; nor the malice of hellish or earthly devil ever practised’.28 There was an echo of these words in the lines spoken by Macduff, on discovering the body of the murdered Duncan: ‘O horror, horror, horror! / Tongue nor heart cannot conceive, nor name thee.’ (2.3.65–66) The hyperbolic style of counsel was a salient characteristic of this most emotive of trials, but so too was the interweaving of natural law theory with Judaeo-Christian theology (specifically, Biblical injunction) and pre-Christian, classical philosophy. In his opening speech, from which the above quotation is taken, Phelips paraphrased and deliberately inverted the meaning of a passage from 1 Corinthians: ‘Eye hath not seen, nor ear heard, neither have entered into the heart of man, the things which God hath prepared for them that love him’.29 The same Biblical quotation was to be paraphrased two years later by Coke, in his report of Postnati. Calvin’s Case, in which he described the case as ‘such a one as the eye of the law (our books and book-cases) never saw, as the ears of the law (our reporters) never heard of, nor the mouth of the law (for judex est lex loquens) the Judges our forefathers of the law never tasted’.30 The use of anatomical metaphor was not coincidental: it facilitated explication of the body politic, in such fashion as to emphasise the reciprocal relationship between the organs of state and the constituent parts of that body, its subjects. Coke developed the theme of natural order at the start of his address to the court (the longest uninterrupted speech that he ever made in the presentation of a case), informing the commissioners that ‘It is ordo naturae, agreeable to the order of nature, that things of great weight and magnitude should slowly proceed, according to that of the poet, “Tarda solet magna in rebus adesse fides”’. Coke alluded here to the lapse of time between the discovery of the Gunpowder plot on 4 November 1605 and the trial of the plotters on 27 January 1606, a period of almost three months. As Coke reminded the court, after quoting from Ovid: ‘Veritas temporis filia, Truth is the daughter of time.’31 In emphasising the lapse of

28  ‘Trials of Robert Winter, Thomas Winter, Guy Fawkes’ in Howell (ed), State Trials, 2: 164. Prior to the presentation of evidence by the Attorney-General, the common procedure in treason trials was for the King’s Serjeant to summarise the charges made in the indictment in an opening speech; see Bellamy, Tudor Law of Treason, 147. 29  The First Epistle of Paul the Apostle to the Corinthians, 2.9; all quotations are from the Authorised King James Version of the Bible. Coke used the same Biblical source when he addressed the court: ‘Trials of Robert Winter, Thomas Winter, Guy Fawkes’ in Howell (ed), State Trials, 2: 166. In the trial of Henry Garnet SJ, the King’s Serjeant, Sir John Croke, also alluded to 1 Corinthians, with reference to Garnet’s alleged treason: ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 219. 30  Postnati. Calvin’s Case, in Part 7 [1608] of The Reports of Sir Edward Coke, Knt in English, G Wilson (ed), 7 vols (London, Rivington, 1777) 4: 1a, 4a. On the declaration to Parliament by James I ‘that Rex est lex loquens’, see Chapter 3, text to n 128, below. For reference to Calvin’s Case and other cases of major constitutional importance in the first decade of Jacobean rule, see Chapter 4, text to nn 63–154, below. Shakespeare incorporated the same passage from 1 Corinthians 2.9 into A Midsummer Night’s Dream, when Bottom awakes from his dream (4.1.205–207); see Raffield, Shakespeare’s Imaginary Constitution, 147–150. 31  ‘Trials of Robert Winter, Thomas Winter, Guy Fawkes’ in Howell (ed), State Trials, 2: 166.

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time, Coke was subliminally to remind his audience of the immutable distinction between good and evil. The forces for good had their own ‘interim’ between the discovery of the plot and the trial in which to prepare the case against Guy Fawkes and the other plotters, just as the forces for evil made nefarious use of an interim period between the hatching of the Gunpowder plot and its execution. The order of nature to which Coke referred was in stark contrast to the ‘monstrous nature’ of the murderous action intended by the plotters. For Coke, these men (and indeed all traitors) were ‘retrograde to nature’.32 It was appropriate therefore (albeit antithetical, given the unnatural act that the plotters had intended to execute) that Coke should have quoted from the canonic poet of the natural world, Ovid. The Latin maxim Tarda solet magna in rebus inesse fides is taken from Heroides 17 (‘Helen to Paris’) and translates as: ‘Faith is wont to be slow in matters of great moment’.33 Having quoted from the Roman poet, Coke then developed his own Ovidian trope, endowing natural (but non-human) phenomena with human (but unnatural) susceptibilities. He compared treason to ‘a tree whose root is full of poison, and lieth secret and hid within the earth, resembling the imagination of the heart of man, which is so secret as God only knoweth it.’ This is ‘the insane root / That takes the reason prisoner’; an act, so monstrous and unnatural that it can be envisaged only in metaphorical terms. Coke skilfully extended the arboreal metaphor in the next sentence, in which he compared the law itself to a good gardener, guarding against disease and excising those cankerous parts of the plant that threatened its very survival: Now the wisdom of the law provideth for the blasting and nipping, both of the leaves, blossoms, and buds which proceed from this root of Treason; either by words, which are like to leaves, or by some overt act, which may be resembled to buds or blossoms, before it cometh to such fruit and ripeness, as would bring utter destruction and desolation upon the whole state.34

Coke had employed the same imagery in the trial of Raleigh, in November 1603, but the efficacy there of the metaphor was diminished by the tortuous analogy he

32 

ibid, 184. The Latin quotation, as printed in the published version of the trial transcript, has ‘adesse’ instead of the correct ‘inesse’. This may have been a typographical error, rather than a mistake on the part of Coke. The Heroides of Ovid was published in 1567, in an English translation by George Turberville. In this version of the poem, the same line is translated inaccurately as: ‘To matters of importance great we scarcely credit geeve’, The Heroycall Epistles of the Learned Poet Publius Ovidius, Naso, In English Verse: set out and translated by George Turbervile (London, Henry Denham, 1567) 102b. 34  ‘Trials of Robert Winter, Thomas Winter, Guy Fawkes’ in Howell (ed), State Trials, 2: 167. The classical source of the analogy between words and leaves is Horace’s Ars Poetica (lines 60–63). Another lawyer, Abraham Fraunce, made the identical comparison in The Lawiers Logike, published in 1588: see Chapter 1, text to n 232, above. The report of the trial of Henry Garnet SJ, which took place two months after the trial of the Gunpowder plotters, on 28 March 1606, records that the King’s Serjeant, Sir John Croke, ‘spake with fear and trembling, and with horror and amazedness, against that rotten root of that hideous and hateful tree of treason’: ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 217. 33 

Of Such Horror, and Monstrous Nature: The Juridical Enactment of Betrayal  75 drew between the heart, the hand, and the mouth of a human body, and respectively the root, the bud, and the blossom of a tree: There is Treason in the heart, in the hand, in the mouth, in consummation: comparing that in corde to the root of a tree; in ore, to the bud; in manu to the blossom; and that which is in consummatione, to the fruit.35

The tree was an adaptable and much used metaphor in the lexicon of the English legal institution. In Chapter 3, I discuss the enduring image of the scion, grafted onto the root-stock of a fruit tree (as described by Fortescue in De Laudibus), as an emblem of kingship, transplanted onto the rule of justice, thereby facilitating transformation of the future king into ‘a just Prince’.36 In Chapter 4, I consider the Biblical associations between kingship and arboriculture, as well as the incorporation by Coke of a graphic tree of ‘Parentage and of Consanguinitie’ to illustrate the flawless genealogy of English law.37 In semiotic terms, the image of the tree illustrated the indivisible trinity of common law, moral law and natural law. Above all, the tree symbolised the commonly held and frequently propounded belief that common law was derived from the law of nature.38 As I have already indicated, the style of courtroom advocacy adopted by Coke was invariably histrionic and sometimes of questionable efficacy. For example, in the trial of Raleigh, Coke’s annoyance at the composure and eloquence of the accused reduced him to trading insults with Raleigh, in a form of unintentionally comic dialogue that would not have seemed out of place in one of London’s Jacobean playhouses: COKE:  Thou art the most vile and execrable Traitor that ever lived. RALEIGH:  You speak indiscreetly, barbarously and uncivilly. COKE:  I want words sufficient to express thy viperous Treasons. RALEIGH:  I think you want words indeed, for you have spoken one thing half a dozen times. COKE:  Thou art an odious fellow, thy name is hateful to the realm of England for thy pride. RALEIGH:  It will go near to prove a measuring cast between you and me, Mr. Attorney.39

Coke’s annoyance was almost certainly compounded by continual interruptions from the Secretary of State, Sir Robert Cecil. At one point, Cecil rebuked Coke for the intemperate nature of his examination of Raleigh, with the following words: ‘Be not so impatient, good Mr Attorney, give him leave to speak’.40 It is axiomatic of this particular form of early modern juridical procedure that Raleigh was eventually 35  ‘The

Trial of Sir Walter Raleigh, knt’ in Howell (ed), State Trials, 2: 7. See Chapter 3, text to nn 25–27, below. 37  See Chapter 4, text to nn 157–160, below. 38  See Chapter 4, text to n 174, below. On the equation identified by Coke between moral law and the law of nature, see Chapter 4, text to n 37, below. 39  ‘The Trial of Sir Walter Raleigh, knt’ in Howell (ed), State Trials, 2: 26. 40  ibid. The rebuke from Cecil almost caused Coke to withdraw from the case. Following Cecil’s reprimand, ‘Mr Attorney sat down in a chafe, and would speak no more, until the Commissioners urged and intreated him. After much ado, he went on, and made a long repetition of all the Evidence, for the direction of the Jury’: ibid. 36 

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convicted of High Treason with the benefit only of circumstantial evidence, but as Mark Nicholls has noted, the presentation of the case for the crown was so poor that ‘Coke turned Ralegh—literally overnight—from villain into hero’.41 In his biographical sketch of Coke, contained in Brief Lives, John Aubrey wrote that the Attorney-General ‘showed himself too clownish and bitter in his carriage to Sir Walter Raleigh at his trial, where he says “thou traitor” at every word, and “thou liest like a traitor”.’42 Leaving aside the possible shortcomings of Coke as a criminal trial advocate, there is no gainsaying his adroit use of metaphor and allusion to persuade a jury of the heinous acts and intentions of the defendant. Regarding the trial of the Gunpowder plotters, and the evocative image of treason as ‘a tree whose root is full of poison’, Coke demonstrated fulfilment of the requirement, enjoined by Sidney in The Defence of Poesy, that the capacity to versify was not in itself the mark of a poet; rather, the true poet was identified by the use of ‘feigning notable images of virtues, vices or what else’, which create ‘a speaking picture’ the purpose of which was to teach, as well as to delight.43 In his career as a law reporter, and subsequently as a senior member of the judiciary (Coke was appointed Chief Justice of the Common Pleas in June 1606, soon after the trials of the Gunpowder plotters and Henry Garnet, SJ), Coke was to prove himself an exemplary poet-judge;44 his reports of judgments (his own and those of other judges), being replete with images drawn especially from Biblical, classical and medieval literary sources.45 These distinctive images often merge, but they never clash; as in Calvin’s Case, in which the story of the Trojan Horse (as related by Virgil in Book II of The Aeneid) vies for attention with the tale of the voyage undertaken by St Paul from Caesarea to Rome (described in The Acts of the Apostles), both stories echoing the journey made by the plaintiff in Calvin’s Case, and his symbolic odyssey from being a subject of James VI of Scotland to a naturalised subject of James I of England.46

41  Nicholls, ‘Sir Walter Ralegh’s Treason’, 905; see also, AB Magruder, ‘The Trial of Sir Walter Raleigh: Bacon and Coke’ (1878) 4 Southern Law Review, 843–56, 847; HW Woolrych, The Life of the Right ­Honourable Sir Edward Coke, Knt (London, J & WT Clarke, 1826) 58. 42 ‘Sir Edward Coke, 1552–1634’ in J Aubrey, Brief Lives (London, The Folio Society, 1975) 83. Nicholls states that Coke was ‘never particularly adroit as a prosecutor’: Nicholls, ‘Sir Walter Ralegh’s Treason’, 905. There may be some truth in this claim, but as Ian Ward has noted of the trial of the ­Gunpowder plotters: ‘Coke could be relied upon to make sure that the show trial was suitably dramatic. It was the performance that interested James, not the issue of guilt or otherwise’: I Ward, ‘Terrorists and Equivocators’ (2007) 1 Law and Humanities 111–131, 118. 43  Sidney, ‘The Defence of Poesy’, 12, 10. 44  Nussbaum uses the phrase ‘poet-judge’ to describe ‘the equable man’ of Walt Whitman’s ‘By Blue Ontario’s Shore’: MC Nussbaum, Poetic Justice: The Literary Imagination and Public Life (Boston, ­Beacon Press, 1995) 80; see Introduction, text to nn 43–44, above. 45  On the transition in English law reporting, from an oral to a textual tradition, from the Year Books to the Law Reports, see P Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London, Weidenfeld and Nicolson, 1990) 111–48. See also, MT Clanchy, From Memory to Written Record: England 1066–1307 (Oxford, Blackwell, 1993); P Goodrich, ‘Literacy and the Languages of the Early Modern Common Law’ (1987) 14 Journal of Law and Society 422–44. 46  For discussion of these two narratives, see Chapter 4, text to nn 78–79, 148–50, below; on reference in Calvin’s Case to The Book of Job, see Introduction, text to n 31, above.

Of Such Horror, and Monstrous Nature: The Juridical Enactment of Betrayal  77 The ‘speaking pictures’ painted by Coke were indisputably animated. In the case of the Gunpowder plotters, the accused became for the audience the embodiment of all that was antithetical to nature. The arboreal metaphor of a poisoned root, secret, hidden, known only to God, was both imaginative and persuasive. But in the historiography of the western legal tradition, the poetic imagination has been regarded always with suspicion, and often with downright hostility. Contrary to popular belief, which has him banning poets from the ideal state for all time, P ­ lato’s position in The Republic was rather more nuanced. Poems other than ‘hymns to the gods and paeans in praise of good men’ were likely to displace ‘law and the rational principles accepted as best’;47 but Plato added the important rider ‘that if drama and poetry written for pleasure can prove to us that they have a place in a well-run society, we will gladly admit them’,48 provided it could be shown beyond doubt that poetry would bring lasting benefits to the commonwealth. The Elizabethan critic George Puttenham was, to say the least, ambivalent about the use of figures of speech, which he described as ‘abuses or rather trespasses in speach’, intended ‘to deceive the eare and also the minde, drawing it from plainnesse and simplicitie to a certaine doublenesse, whereby our talke is the more guilefull & abusing’. Hence, metaphor was ‘an inversion of sence by transport’;49 while allegory was no more than ‘duplicitie of meaning or dissimulation under covert and darke intendments’.50 Of great relevance to the use of metaphor in the courtroom, Puttenham stated that the Areopagites (judges in the ancient Athenian court of Areopagus) forbid all manner of figurative speeches to be used before them in their consistorie of Iustice, as meere illusions to the minde, and wresters of upright iudgement, saying that to allow such manner of forraine & coulored talke to make the iudges affectioned, were all one as if the carpenter before he began to square his timber would make his squire crooked: in so much as the straite and upright mind of a Iudge is the very rule of iustice till it be perverted by affection.51

Metaphor threatened the certainty of meaning, and therefore it threatened also the irrefutable authority of law. As William Fulbecke noted, in his advice to prospective students of common law: ‘for what authority or force should it [the law] have, if it did always change like the Moon’.52 Sir Francis Bacon may have had

47 Plato, The

Republic, D Lee (trans) (London, Penguin, 1987) 375, 376, Bk X.III.607a. ibid, 376, Bk X.III.607c. 49  In Greek, metapherein is a verb, meaning ‘to carry across’ or ‘to alter’; this translates into Latin as transferre, meaning ‘to translate’, ‘to transfer’, or ‘to transform’. On the origins and literary history of metaphor, see D Donoghue, Metaphor (Cambridge, Mass, Harvard University Press, 2014). 50  G Puttenham, The Arte of English Poesie (London, Richard Field, 1589) 128. 51  ibid, 128–29. On Plato, Puttenham, and the poetic imagination, see Raffield, Shakespeare’s Imaginary Constitution, 145–47. On dissimulation and enigma in early modern English law, see P Goodrich, ‘Legal Enigmas—Antonio de Nebrija, The Da Vinci Code and the Emendation of Law’ (2010) 30 Oxford Journal of Legal Studies 71–99. 52  W Fulbecke, A Direction or Preparative to the Study of the Lawe (London, T. Wight, 1600) sig. B4.r. 48 

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­ ncertainty in mind when he wrote to Coke after the trial of the Gunpowder plotu ters, criticising him for his conduct of it. Crediting Coke with a creative imagination, ‘a living fruitfull mind’, Bacon suggested that he should ‘find what to leave unspoken’, because ‘rich soyles are often to be weeded.’53 The issue of uncertainty of meaning, and specifically of equivocation, was central to the trial of the Jesuit Superior in England, Henry Garnet SJ, in March 1606, two months after the trial of the Gunpowder plotters.54 Garnett was charged with the same offence as the plotters—High Treason—in that he had conspired and compassed to depose the king; to deprive him of his government; and to kill the king and his eldest son, Prince Henry. Garnet pleaded not guilty to the charge. The extent of his complicity in the plot is debatable. He had met the principal organiser of the plot, Robert Catesby, in the summer of 1605, and details of the plot were revealed to him while he was hearing the confession of Father Oswald Tesimond SJ (known also under the alias of Father Greenway) in July 1605. Holding sacrosanct the seal of the confessional, in accordance with canon law, he failed to inform state authorities of the existence of a plot to kill the king.55 Instead, he wrote to the Superior General of the Jesuits, Claudio Acquaviva, informing him of the imminent threat to the life of James I.56 At the trial of Garnet, Coke opened for the crown by announcing to the court that Garnet’s involvement in the plot ‘is but a latter act of that heavy and woful tragedy, which is commonly called the PowderTreason; wherein some have already played their parts’, thereby immediately establishing the correlation between the treason trial and tragic drama.57 In the theatre, Shakespeare immortalised Garnet through the agency of the Porter in Macbeth, in the darkly comic scene that follows the murder of Duncan. ‘Here’s a farmer’

53  Letter to Coke from Sir Francis Bacon, BL MS Sloane. 1775, fo 79.v. Regarding the Gunpowder plotters, Bacon reprimanded Coke for his opposition to the use of torture during the pre-trial period of interrogation: ‘you stopt the confessions and accusations of some, who perhaps had they bin suffered would have spoken enough to have removed some stumbling blocks out of your way’, ibid, fo 80.v. Fortescue had been vehemently opposed to the use of torture on suspected criminals: J Fortescue (Sir), De Laudibus Legum Angliae, J Selden (ed) (London, R Gosling, 1737) 45. 54  After leaving Winchester College in 1571, Garnet came to London (instead of taking up a place at New College, Oxford), where he worked as proofreader and corrector for the law publisher, Richard ­Tottell. During the trial of Garnet, Coke punned on the name of his trade: ‘he is by country an Englishman, by birth a gentleman, by education a scholar, afterwards a corrector of the common law print, with Mr Tottle the printer; and now is to be corrected by the law’: ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 234. 55  See Fraser, The Gunpowder Plot, 157. On the subject of confession, one of the commissioners at the trial of Garnet, the Earl of Nottingham, foreshadowed the murder of Duncan in Macbeth, when he asked Garnet: ‘if one confessed this day to him, that to-morrow morning he meant to kill the king with a dagger, if he must conceal it? Whereupon Garnet answered that he must conceal it’, ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 255. 56  For full details of the events involving Garnet, immediately preceding the failure of the plot, see Fraser, The Gunpowder Plot, 154–60; also, A Haynes, The Gunpowder Plot (Stroud, Sutton Publishing, 2005) 62–68; P Caraman, Henry Garnet, 1555–1606, and the Gunpowder Plot (New York, Farrar, Straus, 1964). For an account of the growth of the Jesuit order in the latter half of the sixteenth century, see J Brodrick, SJ, The Progress of the Jesuits, 1556–1579 (London, Longmans, Green and Co, 1946). 57  ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 219.

Of Such Horror, and Monstrous Nature: The Juridical Enactment of Betrayal  79 (2.3.4), he announces, using one of the many pseudonyms employed by Garnet during his mission to England.58 Garnet was the ‘equivocator, that could swear in both the scales against either scale, who committed treason enough for God’s sake, yet could not equivocate to Heaven’ (2.3.8–11).59 Coke referred to the Treatise of Equivocation (two copies of which, one amended by Garnet himself, had been found in the Inner Temple chambers of one of the plotters, Francis ­Tresham),60 ‘wherein, under the pretext of the lawfulness of a mixt proposition to express one part of a man’s mind, and retain another, people are indeed taught not only simple lying, but fearful and damnable blasphemy.’61 The ironic truth surrounding the trial of Garnet was that the Jesuit priest did not equivocate in replies to questions from the commissioners. He replied honestly when asked why he failed to disclose knowledge of the plot: ‘because it was matter of secret confession, and would endanger the life of divers men’. On the doctrine of equivocation, he stated that ‘equivocation is not to maintain lying, but to defend the use of certain propositions … no man may equivocate when he ought to tell the truth, otherwise he may.’62 The doctrine itself may have encouraged dissimulation, but the answers that Garnet gave to questions from the court were unequivocal. Given the theme of equivocation that dominated these juridical proceedings, there is an added irony to the fact that the crown should have dissembled in its presentation of false evidence and that Coke, the Attorney-General, the personification of the government’s juridical authority, should have collaborated in such dissimulation. The government contrived two dubious items of evidence.

58  Coke informed the court of Garnet’s numerous aliases: ‘he is, as you have heard, a man of many names, Garnet, Wally, Darcy, Roberts, Farmer, Philips’, ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 233–34. Haynes suggests that the Porter’s line, ‘if a man were porter of Hell gayte, he should have old turning the key’ (2.3.1–2), refers to both the Jesuit priest Father Oldcorne (arrested with Garnet at Hindlip House, Worcestershire) and another of the plotters, Robert Keyes: Haynes, The Gunpowder Plot, 152. Garnet arrived on his mission to England in 1586, an act of Treason in itself: ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 222. On the Jesuit mission to Elizabethan England, see A Hogge, God’s Secret Agents: Queen Elizabeth’s Forbidden Priests and the Hatching of the Gunpowder Plot (London, Harper Perennial, 2005). 59  On Garnet and the Porter in Macbeth, see R Wilson, Secret Shakespeare (Manchester, Manchester University Press, 2004) 193–94; also, FL Huntley, ‘Macbeth and the Background of Jesuitical Equivocation’ (1964) 79 Publications of the Modern Language Association of America 390–400. 60  Tresham died in the Tower of London on 23 December 1605, before he could be brought to trial. The Treatise of Equivocation was written by Garnet himself, although Coke and the government were unaware of this fact. In the Quarto version discovered in the Inner Temple, the original title had been crossed out and replaced with the title: A Treatise against Lying and Fraudulent Dissimulation; Fraser, The Gunpowder Plot, 291. See also, SR Gardiner, History of England From the Accession of James I to the Outbreak of the Civil War, 1603–1642, 10 vols (Cambridge, Cambridge University Press, 2011) 1: 280–81. On the doctrine of equivocation, see P Zagorin, Ways of Lying: Dissimulation, Persecution, and Conformity in Early Modern Europe (Cambridge, Mass, Harvard University Press, 1990) 14; JP ­Sommerville, ‘The “New Art of Lying”: Equivocation, Mental Reservation, and Casuistry’ in E Leites (ed), Conscience and Casuistry in Early Modern Europe (Cambridge, Cambridge University Press, 1988) 159–84; G Wills, Witches and Jesuits: Shakespeare’s Macbeth (Oxford, Oxford University Press, 1995) 93–96. 61  ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 234. 62  ibid, 2: 242, 239. On equivocation and the plays of Shakespeare, see Shapiro, 1606, 178–207.

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The first was a mysterious, anonymous letter, supposedly sent to Lord Monteagle on 26 October 1605, warning him to ‘shift off your attendance at this parliament’ because ‘they shall receive a terrible blow at this parliament, and yet they shall not see who hurts them.’63 Monteagle took the letter to Sir Robert Cecil, who showed it to the King. As Fraser has convincingly argued, the entire story of the Monteagle letter was a calculated attempt to appeal to two of the King’s ‘most marked characteristics, his intellectual vanity and his concern for his own safety.’64 An account of the plot, written by James I, has him analysing the letter with forensic exactitude, in the presence of Cecil (who makes no connection between the letter and an imminent attempt to blow up Parliament) before concluding that ‘before his going to the parliament, the under-rooms of the parliament-house might be well and narrowly searched.’65 The King is the perspicacious hero of the hour, saving his own life and those of hundreds of others with no assistance from any other person. In the trial of Garnet, Coke narrated the story of the letter in providential terms: ‘Now was the Letter with the lord Monteagle, whose memory shall be blessed, on the 4th of November; by the providence of the Almighty, not many hours before the Treason should have been executed, was it fully discovered.’66 Whether or not the anonymous letter was genuine, in the trial process it was little more than a familiar theatrical device, intended both to catch the attention of the audience and drive the narrative forward. It served usefully also as an item of propaganda, implying the omniscience of a providential ruler.67 In Mischeefes Mysterie: Or, Treasons Master-peece, The Powder-plot, by Francis Herring, the illustration on the title page depicts James I, sitting in state, while an eagle delivers the fateful letter to Cecil (see Figure 1). The illustration is accompanied by the following verse: The gallant Eagle, soaring up on high: Beares in his beake, Treasons discovery.

63  ‘Trials of Robert Winter, Thomas Winter, Guy Fawkes’ in Howell (ed) State Trials, 2: 197. On the Monteagle letter, the Gunpowder Plot, and Macbeth, see Shapiro, 1606, 103–54. 64 Fraser, The Gunpowder Plot, 188. Fraser makes the plausible suggestion that the letter was ‘deliberately concocted’; ibid, 184. She further notes that Monteagle benefited from its publication, both in terms of financial reward from a grateful government, and (as one who had been imprisoned for his participation in the Essex Rebellion) in dissociating him from the plotters; ibid, 185. She goes so far as to state that ‘the actual author’ was ‘Monteagle himself ’; ibid, 187. Alternatively, it has been argued that one of the plotters, Francis Tresham, wrote the letter to Monteagle. Gardiner confidently asserted: ‘That the writer of the letter was Tresham there can be no reasonable doubt’, Gardiner, History of England, 1: 251. While imprisoned in the Tower, Tresham confessed to his involvement in the plot, but made no reference to writing the Monteagle letter. Haynes suggests that the letter may have been written by Cecil: Haynes, The Gunpowder Plot, 88. 65  ‘History of the Gunpowder Plot, written by King James himself ’ in Howell (ed) State Trials, 2: 198. On the reading of the Monteagle letter by James I and comparison with the interpretative powers of Duncan and Malcolm in Macbeth, see Lemon, Treason by Words, 97–98. 66  ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 232. 67  On James I as the divine lawgiver, see Raffield, Shakespeare’s Imaginary Constitution, 191–201; see also, M Stolleis, The Eye of the Law: Two Essays on Legal History (Abingdon, Birkbeck Law Press, 2009).

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MOUNT, noble EAGLE, with thy happy prey, And thy rich Prize to th’ King with speed convay.68

The second item of concocted evidence was the alleged existence of a mine beneath the Palace of Westminster, which the plotters were supposed to have started excavating, with the purpose of conveying the gunpowder from the house at Westminster in which it was stored to the cavernous space under the House of Lords. The plotters gave up on this plan, because (according to the version of the story that Coke presented to the court) ‘they could not make the mine ready, in respect that they could not dig there, for that the commissioners of the union sat near the place, and the wall was thick’.69 Fraser notes that any trace of the aborted mine has never been found, and that the task of building such an elaborate structure was beyond the capabilities of the plotters, none of whom had any experience in mining.70 It seems likely that the ‘mine’ was another metaphorical plot device, concocted by the government to portray the plotters as satanic creatures of the night, whose unnatural habitat was the dark, subterranean vaults, which lay beneath the heart of government. In an extraordinary intervention in the trial by one of the commissioners, the Earl of Northampton, Garnet was accused of witchcraft and collusion with the devil. Northampton suggested to Garnet that Robert Catesby ‘used your admittance as a charm or spell, to keep quick spirits within the circle of combined faith; which otherwise perhaps, when hell brake loose, would have sought liberty.’ In other words, Garnet was a sorcerer and master of the dark arts, whose nefarious spells charmed the plotters, leading ‘not only to the destruction of their bodies, but to the peril of their souls’.71 Implicit in the accusation made by Northampton against Garnet was that the Jesuit Superior in England was the devilish emissary of a satanic master: the Anti-Christ himself, the Pope.

III.  Royal Succession as Theatre of the Whole World If an underlying theme may be identified in the trials of the plotters and of Garnet, it was the threat posed to the crown and the governance of the state by external forces, inseparably linked to which was the additional threat posed to the state religion—Anglicanism—by violent agents of the Roman Catholic Church. That there was a less obvious, but no less important, theme was revealed when, ­during

68  F Herring, Mischeefes mysterie: or, Treasons master-peece, the Powder-plot (London, E Griffin, 1617) title page. 69  ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 238. 70 Fraser, The Gunpowder Plot, 133–34. 71  ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 251. On magic and witchcraft in the early modern period, see K Thomas, Religion and the Decline of Magic (London, Penguin, 1991); also, P Elmer, Witchcraft, Witch-Hunting, and Politics in Early Modern England (Oxford, Oxford University Press, 2016).

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his address to the court in the trial of Garnet, Coke explained the legitimate claim of James I to the throne of England by delineating at considerable length the shared genealogy of the English and Scottish monarchs, and in so doing, incidentally aligning the ancestry of James I with a saintly predecessor: His majesty is lineally descended from Margaret the saint, daughter of Edward, son of king Edmund, grandchild of great Edgar, the Britain monarch. Which Margaret, sole heir of the English-Saxon king, was married to Malcolme king of Scotland; who by her had issue David the holy their king, from whom that race royal at this day is deduced; and Maud the good, wife of the first and learned king of England, from whom his majesty directly and lineally proceedeth …72

Coke concluded his peroration on the genealogy of the first Stuart king of ­England by reference to his more recent descent from Margaret, the eldest daughter of Henry VII, and great-grandmother of James I of England. Margaret, the elder ­sister of Henry VIII, married James IV of Scotland in 1503.73 The ancestry of the Stuart kings is demonstrated in Macbeth by A show of eight kings, the last with a glass in his hand, and Banquo (SD 4.1.126),74 summoned by the weird sisters, along with the other apparitions, to materialise before Macbeth. The reference to James as King, both of Scotland and England, is made explicit when Macbeth describes his vision of a line of kings: ‘That two-fold balls, and treble sceptres carry’ (4.1.136). At the Scottish coronation, monarchs were invested with one sceptre and one orb; while at the English coronation they were invested with two sceptres and one orb.75 James VI was eighth in the line of Stuart kings (starting with Robert II) whose lineage descended from Banquo, via Fleance, ­Walter (who ‘was made lord steward of Scotland’), Alan, Alexander, John and Walter (who ‘maried Margerie Bruce daughter to king Robert Bruce, by whome he had issue king Robert the second’).76 The Stuart successors to Robert II were respectively Robert III, James I, James II, James III, James IV, James V, Mary

72  ‘The Trial of Henry Garnet’ in Howell (ed), State Trials, 2: 226. ‘Margaret the saint’ is supposed to have fled to Northumbria, following the Norman Conquest. She subsequently sailed for the continent, but a storm drove the ship to Scotland, where she married Malcolm III in 1070. She was canonised in 1250 by Pope Innocent IV; see C Keene, Saint Margaret, Queen of the Scots: a Life in Perspective (Basingstoke, Palgrave Macmillan, 2013). 73  For a graphic illustration of the ancestry of James I, in which the royal houses of Tudor and Stuart are intertwined, see Figure 7. 74  Muir asserts that the ‘glass’ was ‘not an ordinary mirror in which King James could see himself … but a prospective, or magic, glass’: W Shakespeare, Macbeth, K Muir (ed) (London, Arden Shakespeare, 1982) 114, note to line 119. This definition of ‘glass’ is consistent with the ‘Christall Mirror’, in which members of the two Houses of Parliament were told by James I that ‘you may see the heart of your King’: see Chapter 4, text to n 39, below. See also, W Shakespeare, Macbeth, AR Braunmuller (ed) (Cambridge, Cambridge University Press, 2008) 212, note to line 110. 75  Muir (ed), Macbeth, 114–115, note to line 121. See M Hunt, ‘Reformation/Counter-Reformation Macbeth’ (2005) 86 English Studies 379–98; also, RC Hassel, Jr , ‘“No Boasting Like a Fool?” Macbeth and Herod’ (2001) 98 Studies in Philology 205–24; SL Jansen Jaech, ‘Political Prophecy and Macbeth’s “Sweet Bodements”’ (1983) 34 Shakespeare Quarterly 290–97. 76 WG Boswell-Stone, Shakespeare’s Holinshed (London, Lawrence and Bullen, 1896) 35; see ­Holinshed, ‘The Historie of Scotland’, 2: 168.

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Queen of Scots, and James VI. Notable for her absence from the line of monarchs ­presented by Shakespeare in Macbeth is Mary Queen of Scots: her presence would have required a show of eight kings and one queen. Although Shakespeare omitted Mary from the show of kings, Holinshed referred explicitly to her as the eighth in the Stuart line of monarchs: ‘Thus ye may perceive how the Stewards came to the crowne, whose succession have inioied the same to our time: queene Marie mother to Charles Iames that now reigneth, being the eight person from this ­Robert’.77 The mother of James VI of Scotland was an absent presence, not only in Shakespeare’s Macbeth, but also in the years of speculation concerning the succession to Elizabeth I. Useful, political conjecture as to the personal ambition of Mary may have ended with her execution at Fotheringhay Castle in February 1587, but her ghost continued to haunt the issue of the succession, not least because in his will Henry VIII had excluded the descendants of his sister Margaret from the throne of England.78 Before considering the relevance of nominated succession to the English throne, it is important to reflect briefly on the system of royal succession to the Scottish throne during the period in which actual events that provided the narrative structure of Macbeth took place. In an essay on the subject of succession and inheritance in Macbeth, Joseph S Jenkins states that ‘Monarchy’s claim to control its own succession drives Shakespeare’s Macbeth to murder’.79 When Duncan publicly declared that ‘We will establish our estate upon / Our eldest, Malcolm’ (1.4.38–39), he broke with the traditional model of succession in the Scottish monarchy. In The Historie of Scotland, which provided the plot and characters (as well many of the lines) in Macbeth,80 Holinshed was fairly explicit in chronicling a change in the method of succession during the reign of King Duncan I,81 from tanistry to something approaching primogeniture.82 Under the former system of royal ­succession,

77 

ibid, 2: 245. GR Elton, Reform and Reformation: England, 1509–1558 (London, Edward Arnold, 1977) 332–33. The terms of Henry VIII’s will, regarding the succession, were confirmed by Parliament in the Third Act of Succession 1544 (Succession to the Crown Act, 35 H.8. cap.1). This statute returned Mary Tudor and Elizabeth to the line of succession after Edward, but both Mary and Elizabeth remained illegitimate under the terms of the 1544 Act. 79  JS Jenkins, Inheritance Law and Political Theology in Shakespeare and Milton: Election and Grace as Constitutional in Early Modern Literature and Beyond (Farnham, Ashgate, 2012) 67. 80  In Holinshed, the weird sisters introduce themselves to Macbeth with lines almost identical to those in Shakespeare’s play: ‘All haile Makbeth, thane of Glammis (for he had latelie entered into that dignitie and office by the death of his father Sinell.) The second of them said; Haile Makbeth thane of Cawder. But the third said; All haile Makbeth that héereafter shalt he king of Scotland’, Holinshed, ‘The Historie of Scotland’, 2: 170. 81  Duncan I reigned from 1034 to 1040; he was killed in battle by Macbeth, at Both Gobhanán in Moray. On the medieval history of Scotland, see AAM Duncan, The Kingship of the Scots 842–1292: Succession and Independence (Edinburgh, Edinburgh University Press, 2002); also, W Croft Dickinson, Scotland From the Earliest Times to 1603, AAM Duncan (ed) (Oxford, Clarendon Press, 1977). 82  The change from ‘electing’ to ‘appointing’ a king was specific to the reign of Duncan. Holinshed recorded that after the death and burial of King David II in 1371, ‘the nobles assembled at Lithquo, about the election of him that should succéed in his place’: Holinshed, ‘The Historie of Scotland’, 78 

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Macbeth would have had a valid claim to the throne, following the death of Duncan. It is almost certain that under the tanist system his claim to the throne was stronger than that of Duncan’s nominated successor, Malcolm.83 A tanist king was elected by the Scottish nobility from a parallel line of the same royal family as the regnant monarch, thereby enabling rotation of the crown between nephews, cousins and uncles. Holinshed recorded that Duncan wished to ‘appoint’ Malcolm his successor in the kingdome, immediatlie after his deceasse. Mackbeth sore troubled herewith, for that he saw by this means his hope sore hindered (where, by the old lawes of the realme, the ordinance was, that if he that should succéed were not of able age to take the charge upon himselfe, he that was next of bloud unto him should be admitted) he began to take counsell how he might usurpe the kingdome by force, having a iust quarell so to doo …84

So, according to Holinshed, the claim by Macbeth to the Scottish throne may have been legitimate.85 As Michael Hawkins has noted in response to the argument that Macbeth was a paean to a system of hereditary monarchy predicated on the model of primogeniture, the succession of Malcolm (imposed by Duncan) was nominated rather than inherited, and thereby subverted the customary method by which a Scottish king was elected, on a patrilineal or agnatic basis.86 This indicates, if anything, that in its historical context Macbeth spoke of the constitutional irregularities of nominated succession. Regarding the matter of a successor to Elizabeth I, Hawkins makes the further observation that the issue of succession by nomination, raised by Shakespeare in Macbeth, was relevant in sixteenth-century England, following the publication of Henry VIII’s will.87 I have already noted that the will excluded the descendants

2: 245. Tanistry was abolished in the reign of James VI, and replaced with a system based upon primogeniture. See D Norbrook, ‘Macbeth and the politics of historiography’ in K Sharpe and SN Zwicker (eds), Politics of Discourse: The Literature and History of Seventeenth-Century England (Berkeley, ­University of California Press, 1987) 78–116. 83  See JH Stevenson, ‘The Law of the Throne: Tanistry and the Introduction of the Law of Primogeniture: A Note on the Succession of the Kings of Scotland from Kenneth MacAlpin to Robert Bruce’ (1927) 25 The Scottish Historical Review 1–12. Duncan I and Macbeth were grandsons of Malcolm II, the predecessor to Duncan I. Macbeth was a cousin of Duncan I: their mothers (respectively Donada and Bethoc) were daughters of Malcolm II; ibid, 6. 84  Holinshed, ‘The Historie of Scotland’, 2: 171. 85  On the subject of Macbeth’s legitimate claim to the throne, Lukács refers to Hegel’s reading of Macbeth, which ‘traces the conflict to disputes between different systems of hereditary rights’: G Lukács, ‘Shakespeare and Modern Drama’ in Kottman (ed), Philosophers on Shakespeare, 132–42, 137. 86  Hawkins, ‘History, Politics and Macbeth’, 175. See Jenkins, Inheritance Law, 67. Hawkins rejects the claim made by Henry Paul that Macbeth was ‘a “royal command” play’, written for performance at Hampton Court in August 1606, in honour of a state visit to London by the father-in-law of James I, King Christian of Denmark: Hawkins, ‘History, Politics and Macbeth’, 175, 185–88. Brooke goes even further, stating that Paul ‘had no evidence whatsoever’ that the play was written by command of James I for such an event: Macbeth, Brooke (ed), Introduction, 72. See HN Paul, The Royal Play of Macbeth: When, Why and How it was Written by Shakespeare (New York, Octagon Press, 1971). 87  Hawkins, ‘History, Politics and Macbeth’, 175.

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of Henry’s sister Margaret from inheriting the crown. The intention of Henry VIII was to eliminate any claim by the Stuarts to the English throne (Margaret’s first marriage was to the Stuart king, James IV of Scotland). But John Guy makes the accurate observation that if it were accepted that a claim to the throne could pass through the female line, then the lineage of Margaret Tudor was relevant: she was not only grandmother to Mary Queen of Scots, but also daughter of Henry VII of England. Any future claim by Mary Stuart to the English throne was arguably stronger than the present claim of Elizabeth I, who had been declared illegitimate by Act of Parliament (her illegitimate status was never repealed), following the execution of her mother Anne Boleyn in 1536.88 It was inevitable therefore that Mary should have been seen by Elizabeth and members of the Privy Council as a threat to the throne because (they believed) she harboured pretensions to the crown of England; this despite the claim of Mary that ‘I am clear from all Crime against the Queen, I have excited no Man against her’.89 In October 1586 Mary stood trial at Fotheringhay Castle, charged with countenancing and encouraging a conspiracy to assassinate the Queen (the Babington Plot). She was convicted on the evidence of letters which she was alleged to have exchanged with Anthony Babington, the subject of which was a planned invasion of England by Spanish forces, a rebellion of English Catholics, the overthrow of government, and the assassination of Elizabeth.90 The degree of guilt notwithstanding (she was convicted largely on the testimonies given by her two secretaries, Naw and Curle, neither of whom gave evidence at the trial),91 Lord Burghley and others wished for her death in order to guarantee a Protestant succession to Elizabeth. Letters sent from Burghley to Sir Christopher Hatton (a commissioner at the trial of Mary) in September 1586 confirm that he had adjudged her guilty more than one month before her trial. In a letter to Hatton, dated 4 September 1586, Burghley wrote: I thynk Naw and Curle will yeld in ther wrytyng soomwhat to confirm ther Mastriss crymes, but if they war perswaded that them selves might scape, and the blow fall uppon ther Mistriss, betwixt hir head and hir shulders, suerly we shold have the whole from hir.92

It is almost certain that the fate of Mary was sealed when she fled south from Scotland in 1568, after her abdication in July 1567 and the violent death of her

88  J Guy, ‘My Heart is My Own’: The Life of Mary Queen of Scots (London, Fourth Estate, 2009) 53–54. See n 78, above. 89  ‘Proceedings against Mary Queen of Scots’ in A Compleat Collection of State-Tryals, 1: 126. 90  For details of the Babington plot and the subsequent trial of Mary, see Guy, ‘My Heart is my Own’, 479–97; also, ‘Correspondence between Mary Stuart and Anthony Babington, June–August, 1586’ (1909) 17(1) Camden Third Series (London, Longmans, Green and Co, 1900–1963) 26–41; ‘Sir Christopher Hatton’s Notes on the Babington Plot’, ibid, 52–53. 91  See W Russell, The History of Modern Europe, 5 vols (London, GG and J Robinson, 1794) 3: 25. 92  ‘Six Letters from Lord Burghley to Sir Christopher Hatton, September 1586’ (1909) 17(1) ­Camden Third Series (London, Longmans, Green and Co, 1900–1963) 42–51, 43.

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second husband, Lord Darnley, in February 1567. The charge of moral turpitude followed her, and compounded the impression that she was intemperate and duplicitous. The portrait of an ambitious, murderous and adulterous siren was painted by the eminent Scottish historian and humanist scholar George Buchanan, in a salacious account of Mary’s involvement with the murder of Darnley. Ane Detectioun of the duinges of Marie Quene of Scottes was published in ­London after Mary had fled from Scotland to England.93 Buchanan was explicit in his depiction of Mary as a lewd seductress of the libidinous Bothwell. He alleged that she had used the services of a bawd to procure sexual favours from Bothwell. On her return to Edinburgh from Alloa Castle in September 1566 she was supposed to have initiated the following escapade, aided by Lady Reres (a niece of Cardinal Beaton, the murdered Archbishop of St Andrews): Sche layed all the blame upon my ladie Rerese a woman of maist vile unchastitie, wha had sometime been one of Bothwels harlots, and than was one of the chefe of the Quenis privie chamber. By this woman, wha now in her age had from the gayne of horedome betaken hir selfe to the craft of bawderie, was the Quene, as her selfe sayd, betrayed. For Bothwel was through the garden brought into the Quenis chamber, & there forced hir agaynst hir will forsothe. But how much agaynst hir will Dame Rerese betrayed her, tyme the mother of truth hath disclosed.

Most despicable of all, Bothwell had gained access to Mary through a ‘back door’: the ‘backdore adioynit to the garden of the Quenis ladging’.94 The innuendo reinforced the inference that Mary had engaged in acts of sodomy with Bothwell. In this work, Buchanan was highly successful in creating an atmosphere not only of lasciviousness, but also of darkness and intrigue, in which Mary’s alleged murderous plans were executed. As in Macbeth, much of the action of the narrative takes place at night, notably the murder of Darnley: ‘And quhairas the murder was comitted after midnight, they had befoyr daylight caused by speciall forapointid messengers rumors to be spred in Ingland, that the Earles of Murray and Moreton were doers of that sclaughter.’95 Like Duncan in Macbeth, Darnley was depicted by Buchanan as a saintly king. He stood in stark contrast to his alleged killer. Immediately after his murder (committed, according to Buchanan, by Mary), we are told: She lang beheld, nat onely without grefe, but allwa with gredy eyes, hys dead corps, the gudlyest corps of any gentleman that ever lived in the age. And than sodenly, without any funerall honor, in the night tyme, by commoun carriers of dead bodies, upon a vile biere, she causit hym to be buryed hard by David Rizo.96

93  Guy states that ‘As a blend of fact and fiction, Buchanan’s story is a masterpiece’: Guy, ‘My Heart is My Own’, 389. 94  G Buchanan, Ane Detectioun of the duinges of Marie Quene of Scottes, touchand the murder of hir husband, and hir conspiracie, adulterie, and pretensed marriage with the Erle Bothwell (London, John Day, 1571) sig. B.ii.r. On the veracity or otherwise of this incident, see Guy, ‘My Heart is My Own’, 389. 95 Buchanan, Ane Detectioun, sig. D.ii.r. 96  ibid, sig. E.ii.v. David Rizzio was Mary’s private secretary; he was murdered, with Darnley’s connivance, in 1566. See Guy, ‘My Heart is My Own’, 248–51.

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At the subsequent (very brief) trial of Bothwell for the murder of Darnley (at which no evidence was presented), Bothwell was acquitted, because the judges were ‘nat chosin to iudge, but piked out to acquite’. The trial was ‘not the triall of a cause in a court but the playing of ane enterlude upon a stage’.97 Buchanan’s propagandist tract was accepted by Lord Burghley as a statement of fact, which (along with the evidence of the ‘Casket letters’) confirmed for him the collusion of Mary in the murder of Darnley.98 In a pamphlet published in 1572, described as ‘a letter written by one in London to his frend concernyng the credit of the late published detection of the doynges of the Ladie Marie of Scotland’, Burghley described Ane Detectioun of the duinges of Marie Quene of Scottes in complimentary terms: The booke it selfe, with the oration of evidence, is written in Latine by a learned man of Scotland M. George Buchanan, one privie to the procedynges of the Lordes of the Kynges secret Counsell there, well able to understand and disclose the truth, havyng easie accesse also to all the recordes of that cõtrey that might helpe hym.99

Burghley’s pamphlet included the following supplication, on behalf of Elizabeth I: ‘And God send her Maiestie so to remove the groundes of her perill’.100 The trial of Mary Queen of Scots in October 1586 was the last act in a political drama, for which Burghley could claim much of the authorial credit. Like the trial of ­Bothwell, 20 years before the trial of Mary, it was less a forensic determination of facts, than ‘the playing of ane enterlude upon a stage’. A guilty verdict and a ­sentence of death were the only certain means of eliminating Mary’s ‘pretending Title to the Crown of this realm of England’.101 At her trial, Mary complained that ‘I am destitute of Counsellors, and who shall be my Peers I am utterly ignorant. My papers and notes are taken from me, and no Man dareth step forward to be my Advocate.’102 The commissioners who tried Mary were all English subjects; therefore, as a subject of Scotland (since her abdication in 1567), Mary could reasonably argue that (although they were all ­members

97 Buchanan, Ane Detectioun, sig. F.i.r. See ‘The Trial of James Earl Bothwell, for the Murder of Henry Lord Darnley’ in A Complete Collection of State-Trials, and Proceedings for High-Treason, 11 vols (London, C Bathurst, J and F Rivington, 1776–81) 1: 77. On the murder of Darnley and the subsequent trial of Bothwell, see Guy, ‘My Heart is My Own’, 299–310, 321–24. 98  The ‘Casket letters’ were a collection of eight letters, 12 sonnets, and two marriage contracts, between Mary and Bothwell, allegedly sent by Mary to Bothwell between January and April 1567. Mary claimed they were forgeries. If genuine, they implicated Mary in the murder of Darnley, and provided Elizabeth I with a valid reason for keeping Mary imprisoned from 1568 until her execution in 1587. See AE MacRobert, Mary, Queen of Scots and the Casket Letters (London, IB Taurus, 2002); also, H Villius, ‘The Casket Letters: A Famous Case Reopened’ (1985) 28 The Historical Journal 517–34; Guy, ‘My Heart is My Own’, 396–417. 99  W Cecil (Sir), The copie of a letter written by one in London to his frend concernyng the credit of the late published detection of the doynges of the Ladie Marie of Scotland (London, John Day, 1572) sig. A.iii.r. 100  ibid, sig. B.i.v. 101  See text to n 4, above. 102  ‘Proceedings against Mary Queen of Scots’ in A Compleat Collection of State-Tryals, 1: 126.

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of the nobility) they were not her peers.103 Regarding her lack of counsel, this was a situation common to all defendants in criminal actions for felony, including those for High Treason. Prisoners indicted for felonious offences were entitled to counsel only if a point of law arose concerning the evidence (or if there was an appeal against conviction); the rule against defence counsel did not apply to misdemeanours. As Coke explained in The Third Part of The Institutes, the rationale for the rule was: ‘First, that the testimonies and the proofs of the offence ought to be so clear and manifest, as there can be no defence of it’. There can be no clearer indication than this that the purpose of the trial for High Treason was not to establish the guilt or innocence of the accused; but rather, it was to offer the semblance of a fair trial through publicly enacting the motives, intentions and actions of a disloyal subject. The second reason given by Coke in justification for the absence of defence counsel was that the court itself should speak on behalf of the accused, ‘to see that nothing be urged against him contrary to law and right’.104 Regarding the rule against defence counsel in trials for felonious offences, Davies argued that our lawe doth not allowe Counsell unto such as are indicted of Treason, Murder, Rape, or other capitall crimes: So as never any Professor of the lawe of England hath beene knowne to defend (for the matter of fact) any Traytor, Murderer, Ravisher, or Theefe, being indicted & prosecuted at the suite of the King. Turpe reos empta miseros defendere lingua, saieth the Poet, & therefore it is an honor unto our lawe that it doth not suffer the Professors thereof to dishonor themselves (as the Advocats & Orators in other countries do) by defending such offendors.105

It is fair to say that Mary received no assistance from the court, despite the assurance of Coke that in all trials of felonies, ‘the Court ought to be in stead of councell for the prisoner’.106 As already stated, Mary was convicted on the basis of testimonies made by her secretaries, Naw and Curle, regarding the alleged written correspondence between her and Babington, ‘yet were not they produced before her Face to Face.’107 The circumstantial evidence was compelling, but as Mary protested to Burghley: ‘The Circumstances may be proved, but never the Facts’.108

103  Mary also protested in court that ‘she was no subject of the Queen’s, but had been and was a free and absolute Queen’: ibid, 1: 128. The trial in England of a foreign ex-monarch was unprecedented. As Coke noted, a member of the English nobility ‘shall be tried by his Peers, but only at the suit of the King upon an indictment of high treason’. He continued as follows: ‘And albeit a man be a Noble, and yet no Lord of the Parliament of this Realm, (as if he be a Nobleman of Scotland, or of Ireland, of France, ec.) he shall be tried by Knights, Esquires, or others of the Commons’: Coke, Third Part of the Institutes, 30. 104  ibid, 29. See JH Baker, ‘Criminal Courts and Procedure, 1550–1800’ in JH Baker, The Legal Profession and the Common Law: Historical Essays (London, The Hambledon Press, 1986) 259–302, 286– 87; also, Raffield, Shakespeare’s Imaginary Constitution, 109, fns 117, 118. 105  J Davies (Sir), Le Primer Report des Cases & Matters en Ley resolves & adiudges en les Courts del Roy en Ireland (Dublin, Iohn Franckton, 1615) ‘A Preface Dedicatory’, sig. *7.r. The Latin quotation in the above extract is from Ovid, Amores, Bk 1.10.39. It translates as: ‘It is shameful to defend the accused with a bought tongue’. 106 Coke Third Part of the Institutes, 29. 107  ‘Proceedings against Mary Queen of Scots’ in A Compleat Collection of State-Tryals, 1: 129. 108  ibid, 1: 130.

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It is a curious and noteworthy feature of the trials considered in this chapter that in each of them an artefact, in the form of a letter, was central to the determination of guilt. In the trial of Raleigh, the accused and his co-conspirators were alleged to have persuaded Lady Arbella Stuart to write three letters: one to the King of Spain, a second to Archduke Albert of Austria and a third to the Duke of Savoy. In these letters it was intended that she would promise, upon her accession, to establish peace between England and Spain, supplant the established Protestant faith in England with Roman Catholicism, and ‘be ruled by them in contracting of her Marriage.’109 In the trial of the Gunpowder plotters, the anonymous ­‘Monteagle’ letter was supposed to have alerted the government to the existence of a plot to blow up the Houses of Parliament, its (barely) coded message being deciphered only through the ingenious perspicacity of the King himself (even though Cecil had read the letter before he showed it to the King). In the trial of Mary Queen of Scots, the letters exchanged between the accused and Babington, intercepted by Burghley, formed the basis of the case brought against her by the crown (much as the earlier ‘Casket letters’ to Bothwell had implicated her in the murder of Darnley). Such were the doubts as to the veracity of all these documents, that their legitimate evidential status was, to say the least, questionable.110 Their signal importance resided in the fact that the crown was able to present these letters as tangible manifestations of a guilty mind, physical representations of traitorous intent. In this respect, their function was to serve as theatrical properties: they were props in the elaborate drama of the treason trial. In dramatic terms, the letters were plot devices, the function of which was to drive the narrative towards its irresistible conclusion.111 The same may be said of the letter with which Lady Macbeth makes her first entrance in the play. Her first 13 lines are not her own words, but those of her husband, informing her in writing of his encounter with the weird sisters, and their prophetic salutation: ‘Hail King that shalt be.’ (1.5.9) The seeds of treason having been planted, they had germinated and were visibly sprouting: ‘a tree whose root is full of poison’. The choice of venue for the trial of Mary Queen of Scots, Fotheringhay Castle in Northamptonshire, was made not only on the basis of its seclusion, but also because of its reasonable proximity both to London and to Mary’s last place of incarceration, Chartley Manor in Staffordshire, thus minimising the opportunity for her to escape en route. Every aspect of the trial was carefully stage-managed in order to create the illusion of fairness. It is fortunate for historians, legal theorists and semioticians alike, that a contemporaneous drawing of the improvised courtroom (and of the actors in the trial) has survived, as it gives the clearest indication

109  ‘The

Trial of Sir Walter Raleigh, knt’ in Howell (ed), State Trials, 2: 3. against Mary Queen of Scots’ in A Compleat Collection of State-Tryals, 1: 128, 129. ‘A plot device can be practically anything as long as whatever it is, it either gets the story moving or at the very least keeps it up’: F Pfeil, Another Tale to Tell: Politics and Narrative in Postmodern Culture (London, Verso, 1990) 267. 110  ‘Proceedings 111 

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of the mimetic nature of the proceedings (see Figure 3).112 The architectural layout of the courtroom consciously imitated that of the criminal trials staged in the court of King’s Bench, in Westminster Hall (adjoining the court of Chancery).113 As Linda Mulcahy notes in Legal Architecture, the roles of the different actors in the early modern trial process were delineated in spatial terms, according to their relative status:114 the five judges who presided over trials in the court of King’s Bench sat in an elevated position, situated on a dais (see Figure 14). There are several notable features of the configuration of the courtroom at Fotheringhay as depicted in the sketch, which attest to the theatrical (as opposed to the juridical) nature of the process. It is self-evident that the most powerful of all juridical symbols is the judge, sitting at the head of the court (literally, passing down judgment from on high). In the Fotheringhay sketch, the judicial bench has been replaced by ‘a Chair of Estate for the Queen of England, under a Cloth of Estate.’115 Perched on a dais, the chair is empty. It remained so throughout the trial, as the physical presence of Elizabeth I never manifested itself. The image suggests that Mary was tried in curia regis, and that judgment was given by (and in the name of) a Queen whose mystical authority was omnipresent.116 In the sketch, Mary is an onlooker or observer, rather than an active participant, at her own trial. She is depicted twice in the sketch: at first, framed by the doorway and attended by two ladies-in-waiting as she prepared to make her entrance; then, seated in the courtroom (marked ‘A’, near the upper right corner of the sketch), but on its periphery, bounded by a line of commissioners.117 She sat directly opposite her nemesis, Lord Burghley (‘2’). Among the 31 commissioners were: Burghley; Sir Thomas Bromley (Lord Chancellor), who presided over the court (‘1’); 23 members of the House of Lords; and six members of the Privy Council (seated in the foreground,

112  The courtroom was a first-floor chamber in the old state apartments. On the elaborate arrangements for the trial, and the meticulous preparations made for it by Burghley, see Guy, ‘My Heart is My Own’, 487–88. 113  On relations at Westminster between lawyers, parliamentarians, clerics, and members of the royal court, see JF Merritt, The Social World of Early Modern Westminster: Abbey, Court and Community, 1525–1640 (Manchester, Manchester University Press, 2005). 114  L Mulcahy, Legal Architecture: Justice, Due Process and the Place of Law (Abingdon, Routledge, 2011) 40–41. For a comparative study of civilian legal architecture, see K Fischer Taylor, In the Theater of Criminal Justice: Palais de Justice in Second Empire Paris (New Jersey, Princeton University Press, 1993). On the courtroom from a judge’s point of view, based on the sketches of French judge Pierre Cavellat, see R Herz, The Art of Justice: The Judge’s Perspective (Oxford, Hart Publishing, 2012). 115  ‘Proceedings against Mary Queen of Scots’ in A Compleat Collection of State-Tryals, 1: 127. 116  Shakespeare replicated the sense of an ubiquitous but invisible divinity, passing judgment in a trial for treason, in The Winter’s Tale. There, the oracle declares that ‘Hermione is chaste, Polixenes blameless, Camillo a true subject, Leontes a jealous tyrant, his innocent babe truly begotten, and the king shall live without an heir if that which is lost be not found.’ (3.2.130–33) 117  See Mulcahy, Legal Architecture 39. See Figure 14 for a pictorial depiction of the ­configuration of King’s Bench. On the origins and development of King’s Bench, see JH Baker, An ­Introduction to English Legal History (London, Butterworths, 2002) 37–44. On the courts in Westminster Hall, see JH Baker, The Common Law Tradition: Lawyers, Books and the Law (London, Hambledon Continuum, 2001) 247–62. On the history of legal costume, see JH Baker, ‘History of Gowns Worn at the English Bar’ (1975) 9 Costume: The Journal of the Costume Society 15–27.

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their bench serving as a bar between the stage of the courtroom and the audience beyond, comprising members of the local gentry).118 At the long table in the middle of the room sat five judges of the common law (including the three most senior judges in England), two doctors of civil law, three counsellors (all acting for the crown), and the clerk of the crown. Two scribes sat between the judges and the commissioners (one on either side of the table), recording proceedings.119 In a rhetorical aside to the court, Mary pondered aloud whether the elaborate staging of her trial, at which Burghley artfully managed the panoply of the English legal institution, was merely a ‘shew and colour of a just and legal Proceeding.’ Conscious of the theatrical nature of the action (and of the impact that a guilty verdict would have beyond the realm of England), she reminded the court ‘that the Theatre of the whole World is much wider than the Kingdom of England.’120 The theatrical metaphor was taken up by Elizabeth I, as she deliberated on the fate of her cousin, after Mary was convicted on 25 October 1586. The response of ­Elizabeth to the recommendation of Parliament that Mary should be executed was the occasion of one of her most famous public pronouncements: ‘For we Princes are set as it were upon Stages, in the sight and view of all the World.’121 If (as Stephen Greenblatt has asserted, regarding the exercise of royal power in sixteenth-­century England) ‘The play of authority depends upon spectators’,122 then the trial of Mary may be said to have fulfilled this requirement: the Fotheringhay sketch evidences the presence of a large audience. The spectacular display of royal authority notwithstanding, the sketch suggests that the configuration of the court is introspective. The actors look only at each other, never engaging with their immediate audience, which is situated just beyond the bar of the court. The spectators are incidental to the determinations of the legal process, and are necessary only insofar as their presence is required in order to imply the transparency of proceedings. In considering the theatrical form of Mary’s trial, it is instructive to compare the Fotheringhay sketch with another (roughly contemporaneous) graphic illustration: the copy made by Arend van Buchell (in 1596) of Johannes de Witt’s sketch of the Swan Playhouse on London’s Bankside (see Figure 4). The most striking architectural similarity between the two sketches is the spatial dominance of the canopy overlooking the stage. In the Fotheringhay sketch, the canopy overhangs the chair

118  The six members of the Privy Council present were Sir James Croft, Sir Christopher Hatton, Sir Francis Walsingham, Sir Ralph Sadler, Sir Walter Mildmay and Sir Amyas Paulet: ‘Proceedings against Mary Queen of Scots’ in A Compleat Collection of State-Tryals, 1: 127. 119  ‘Proceedings against Mary Queen of Scots’ in A Compleat Collection of State-Tryals, 1: 127–28. 120  ibid, 126. 121  ibid, 133. On Tudor dynastic imagery, see S Anglo, ‘Image-Making: The Means and the Limitations’ in J Guy (ed), The Tudor Monarchy (London, Arnold, 1997) 16–42; also, D Starkey, ‘Representation Through Intimacy: A Study in the Symbolism of Monarchy and Court Office in Early Modern England’ in ibid, 42–78. 122  S Greenblatt, ‘Invisible Bullets: Renaissance Authority and its Subversion, Henry IV and Henry V’ in J Dollimore and A Sinfield (eds), Political Shakespeare: Essays in Cultural Materialism (Manchester, Manchester University Press, 1994) 18–47, 44.

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of state; in the de Witt sketch, it protects part of the stage from the elements and (supported by a column on either side) frames the mimorum ædes (literally, ‘temple of the actors’),123 from which the actors emerge onto the proscænium. Like the elevated position of the chair of state, positioned on a dais, the proscænium is also raised (by trestles) from the flat level of the auditorium, described by de Witt as planities sive arena (‘plain or sand’).124 The major difference between the two sketches lies not in the architecture, but in the actors themselves. In the de Witt sketch, the actors look out to the audience, engaging and involving them in the story. In the Fotheringhay sketch, the actors look only at each other, narrating a story the conclusion to which is foregone. In his essay on the trial of Christ, and the leading role played therein by Pontius Pilate, Giorgio Agamben notes the importance of fate or destiny in the narrative. Pilate was merely playing his part in fulfilling the requirements of a pre-ordained script: ‘What was written of him has in fact been fulfilled’.125 Agamben insists that the drama of the trial resided in the dialogue between the protagonists and the haste with which the lethal outcome was reached, but ‘The trial of Jesus—every trial—begins when judgment has already happened. The judge can only hand the accused over to the executioner; he can not judge him.’126 So it was with Mary Queen of Scots. She had to die, that the Queen of England would be secure on her throne, and that her successor would be a Protestant monarch. The life of Mary, which ended on 8 February 1587 upon a wooden stage erected in the great hall of Fotheringhay Castle, was the stuff of Shakespearean tragedy, ‘essentially a tale of suffering and calamity conducting to death.’127 The agonistic form of the trial condensed the drama of her life into a few scenes only, notably those concerning her alleged involvement in the Babington Plot. As with the trial of Christ, judgment preceded the juridical proceedings. It was only for the judges to hand the accused over to the executioner.

IV.  Treason and the King’s Two Bodies It was a Protestant king who succeeded Elizabeth I on 24 March 1603. The son of Mary Queen of Scots, James I of England, had succeeded to the Scottish throne as

123  The building was known as the ‘tiring house’, in which actors changed their costumes, and from which they entered onto the stage; but the Latin ædes is suggestive of a sacral space. 124  See P Thomson, ‘English Renaissance and Restoration Theatre’ in JR Brown (ed), The Oxford Illustrated History of Theatre (Oxford, Oxford University Press, 1995) 173–219, 196. On the accuracy of the de Witt sketch, see A Gurr, The Shakespearean Stage, 1574–1642 (Cambridge University Press, 1992) 131–36. 125  G Agamben, Pilate and Jesus, A Kotsko (trans) (Stanford, Stanford University Press, 2015) 8; Agamben is quoting here from the Gospel of Gamaliel. 126 Agamben, Pilate and Jesus, 52. 127  Bradley, ‘The Substance of Shakespearean Tragedy’, 3.

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James VI when his mother abdicated on 24 July 1567. He was just over one year old.128 Mary came to the throne on the death of her father James V, when she was only six days old, on 14 December 1542. Infant monarchs brought with them a range of political problems, not least being the ambitions and intentions of the regent, and of those seeking influence over the direction of the body politic.129 In England in the latter half of the sixteenth century, the legal status of an infant monarch was to have far-reaching consequences over the development of secular jurisprudence, especially in the field of property law. Paradoxically (given the temporal nature of the subject of dispute), decisions in cases concerning contested leases, granted by the infant King Edward VI, were determined to some extent by recourse to a doctrine of medieval political theology: the king’s two bodies. Famously, in his report of Case of the Dutchy of Lancaster, heard in 1561, Edmund Plowden declared that the king had within him two indivisible bodies: a body natural and a body politic, ‘incorporated in one person’. Accordingly, ‘no act which the king does as king shall be defeated by his nonage’, because the body politic of the king ‘is utterly void of infancy’.130 The definitive work on the subject remains Ernst H Kantorowicz’s The King’s Two Bodies: A Study in Medieval Political Theology. Kantorowicz acknowledged that during the period under discussion juridical authority passed from church to law, from theology to jurisprudence: ‘from the sacerdotes Ecclesiae to the sacerdotes Iustitiae’.131 With reference to the development of English law in this period, especially striking is what the author terms ‘the mood’ of the jurists, whose object was professional rather than spiritual, and whose method was scientific rather than theological.132 Despite his acknowledgement of the increased secularisation of law in the early modern period, Kantorowicz remained wedded to medieval and theological theories of kingship. He was more in thrall to the ethereal and mystical description of the body politic provided by Plowden, ‘a body that cannot be seen or handled’, than he was to the description later provided by Coke, in his report of Calvin’s Case, of a corporate state with physical substance.133 Plowden’s Reports were an essential resource for Kantorowicz; indeed, the foundations for the author’s thesis are laid in the opening chapter, entitled ‘The Problem: Plowden’s Reports’.

128  For details of the boyhood reign of James VI, see A Stewart, The Cradle King: A Life of James VI and I (London, Pimlico, 2004) 1–87. 129  See P Collinson, ‘De Republica Anglorum: Or, History with the Politics Put Back’ in P Collinson, Elizabethans (London, Hambledon and London, 2003) 1–29, 16. 130  Case of the Dutchy of Lancaster, The Commentaries or Reports of Edmund Plowden, 2 vols (Dublin, H Watts, 1792) 1: 212, 213. 131  EH Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (New Jersey, Princeton University Press, 1957) 162. For recent scholarship on The King’s Two Bodies, see Chapter 4, n 140, below. 132 Kantorowicz The King’s Two Bodies, 138. 133  See Chapter 4, text to nn 143–147, below.

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Kantorowicz appears to have overlooked the fact that a majority of the Elizabethan judges in cases cited in The King’s Two Bodies were guided by principles of natural equity, predicated upon the classical notion of epieikeia, rather than by slavish devotion to medieval political theology. In its juridical context, the theory of the king’s two bodies was interpreted according to the facts of each particular case, in order that a just and equitable decision might be reached. Lorna Hutson argues convincingly that Kantorowicz underestimated the relevance of Aristotelian equity (epieikeia) to the interpretation of statutes.134 Notable throughout The Commentaries or Reports is the strong emphasis Plowden placed on the importance of natural equity in the process of judicial decision-making. Hence in his report of Eyston v Studd, heard by the court of Common Pleas in 1574, Plowden expounded on the nature of equity, ‘which seems to be a necessary ingredient in the exposition of all laws’.135 He cited with approval Aristotle, Bracton and St German on equity, before concluding ‘that a man ought not to rest upon the letter only, nam qui hæret in cortice, but he ought to rely upon the sense, which is temperated and guided by equity’.136 The acknowledgement and pragmatic application of equity by Elizabethan judges contrasts starkly with the ‘mysticism’ ascribed to them by Kantorowicz. When it came to property disputes over contested leases, entails and reversions, involving the alienation or devolvement of land owned by the crown, by no means all of the judiciary had their feet on ‘firm celestial ground’,137 as ­Kantorowicz claimed. Some remained resolutely secular in their reasoning. Even when judges resorted to the theory of the king’s two bodies, they did not adopt a uniform approach to its interpretation.138 Rather than adhering to a mystical philosophy of kingship, they followed the injunction of Christopher St German in Doctor and Student, ‘that thou do justice to every man as much as in thee is: and also that in every general rule of the law thou do observe and keep equity.’139 While it is important to acknowledge the signal contribution of natural equity to judicial decision-making in the Elizabethan courts of common law, this is not to denigrate or diminish the lasting importance of The King’s Two Bodies, which

134  L Hutson, ‘Not the King’s Two Bodies: Reading the “Body Politic” in Shakespeare’s Henry IV, Parts 1 and 2’ in V Kahn and L Hutson (eds), Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001) 166–98, 170–71. 135 Plowden, Eyston v Studd, Commentaries 2: 459, 466. 136  ibid, 467. 137 Kantorowicz, The King’s Two Bodies, 9. Kantorowicz notes Coke’s parenthetical statement in his report of Calvin’s Case, that ‘in 21 E. 4. 39.b. [the body politic] is called a mystical body’: ­Kantorowicz, The King’s Two Bodies, 15; but Coke was referring to a definition that was provided in 1482, since which time the judiciary had increasingly distanced common law from the theological predications of ecclesiastical law. 138  See, for example, Plowden, Hill v Grange, Commentaries, 1: 164; Plowden, Willion v Berkley, Commentaries, 1: 223. On cases reported in Plowden’s Commentaries, and the interpretation of these by Kantorowicz in the context of Shakespeare’s Richard II, see Raffield, Shakespeare’s Imaginary Constitution, 88–101. 139  C St German, Dialogues Between a Doctor of Divinity and a Student in the Laws of England, W Muchall (ed) (Cincinnati, Ohio, Robert Clarke, 1874) 44.

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remains an outstanding work of scholarship, several decades after its publication. Kantorowicz evoked a historical landscape, in which metaphor, metonym and mimesis were employed by various agents (emperors, popes, kings, philosopers and judges) to depict the constitutional landscape of early modern Europe. The constitution of that most natural of phenomena—the human body—became the focus of juristic examination and interpretation, in an attempt to represent the artificial construct of the nation state and the relationship between temporal and spiritual governance within it.140 In one sense, The King’s Two Bodies may be read as a reflection on the nature of time. In his discussion of aeveternity sub-headed ‘Aevum’, Kantorowicz considered different theories of time, notably the proposition of St Augustine that time was created and finite, and the contrasting premise of Aristotelianism (to which St Thomas Aquinas subscribed) that time was continuous and infinite: ‘a continuum of successive moments rolling forth perpetually from endlessness to endlessness’.141 Hence, time was no longer a symbol of death, but rather one ‘of endless duration, of Life.’142 Insofar as aeveternity relates to the mode of existence of the angels and saints, it is relevant also to the character angelicus of the monarch, which (according to Kantorowicz) endowed the king’s body politic with the mystical quality of immutability within time.143 The nature of time is an issue with which Macbeth obsesses. Might it be possible, he muses before the murder of Duncan, ‘upon this bank and shoal of time’, to ‘jump the life to come’ (1.7.6–7)? By the end of the play, time has become for him merely a relentless succession of days—‘Tomorrow, and tomorrow, and tomorrow’ (5.5.19)—which ends abruptly, at ‘the last syllable of recorded time’ (5.5.21). The sense of time as Thomist continuum (as opposed to Augustinian finitude) is emphasised in the play by the recurring image of the child, as an equivocal symbol of continuity and regeneration. From Lady Macbeth’s ‘I have given suck’ (1.7.54), to Macbeth’s anguished meditation on his ‘fruitless crown’ (3.1.60) and ‘barren sceptre’ (3.1.61), and Macduff ’s tortured ‘He has no children’ (4.3.216), the audience is constantly reminded of the importance of succession, in both its existential and dynastic sense.144 This is especially so in relation to the character of Fleance,

140  The use of the human body as a metaphor for the governance of the state was assisted by the proliferation of illustrated anatomical textbooks during the sixteenth century. These included: C Estienne, De Dissectione partium corporis humani (Paris, 1545); T Geminus, Compendiosa totius anatomie delineatio (London, J Herfordie, 1545); A Vesalius, De humani corporis fabrica librorum epitome (Basle, 1543). 141 Kantorowicz, The King’s Two Bodies, 276. The most familiar medieval description of the aevum is in Thomas Aquinas, Summa Theologica, First Part, Question 10, Article 5: ‘It seems that æviternity is the same as time’, The Summa Theologica of Saint Thomas Aquinas, Fathers of the English Dominican Province (trans), DJ Sullivan (revised), 2 vols (Chicago, William Benton, Encyclopædia Britannica, 1977) 1: 44. 142 Kantorowicz, The King’s Two Bodies, 277. 143  ibid, 8. 144  Carol Rutter argues that ‘Macbeth is concerned with futures, prophetic, dynastic, domestic, metaphysical, eternal, and the child is the material embodiment of these futures’: CC Rutter, ‘Remind Me: How Many Children Had Lady Macbeth?’ (2004) 57 Shakespeare Survey 38–53, 39.

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Banquo’s son, who will go on to found a line of kings, leading eventually to the accession of a Stuart monarch. His escape from Banquo’s murderers is a poignant counterpart to the slaying of Macduff ’s ‘pretty chickens’ (4.3.218), which leaves their father without an heir.145 Macbeth raises problematic questions about the doctrine of the king’s two bodies. In killing Duncan, Macbeth ‘hath broke ope / The Lord’s anointed temple’ (2.3.69–70). He informs Donalbain immediately after the murder of his father that ‘The spring, the head, the fountain of your blood / Is stopped’ (2.3.100–101). By invoking the image of the anointed king as ‘head’ of the body politic, ­Shakespeare raised the issue of whether the indivisible bodies natural and politic could possibly reside in the regicide, Macbeth. This despite the fact that, as Macduff informs Ross, Macbeth has been elected king, following the death of Duncan: ‘He is already named, and gone to Scone / To be invested.’ (2.4.31–32) Macbeth had a legitimate and strong (albeit controvertible) claim to the throne, in which case it is reasonable to ask whether a regicide and usurper of the crown might embody the character angelicus of the king. Kantorowicz exaggerated the claims made by Fortescue in De Dominio Regali et Politico for the mystical status of the king as character angelicus. In the passage to which Kantorowicz refers, Fortescue was alluding to the ‘powers’ of the immortal angels, as opposed to the ‘non-powers’ of mortal men. In this respect, the holy spirits and angels, who are not able to sin, grow old, be sick, or hurt themselves have more power than we, who may harm ourselves with all these defects. So the king’s power is greater, in that he may not put from himself possessions necessary for his own sustenance …146

Regarding this quotation from De Dominio, Kantorowicz wrote: ‘What matters is that John Fortescue’s passage shows how closely the legal speculations were related to theological thought, or, to be more specific, to the medieval concept of the king’s character angelicus’. It is important to raise this issue, as the influence of the particular constitutional theory espoused by the Lancastrian Chief Justice over the thinking of Elizabethan and Jacobean jurists was profound and far-reaching. Kantorowicz himself enjoined his readers not to exclude the possibility that ­Elizabethan jurists used De Dominio as a ‘source’;147 but to be strictly accurate,

145  Rutter refers also to the ‘materialized symbol’ of the ‘bloody child’ and ‘a child crowned’, who attend Macbeth as apparitions, summoned by the weird sisters: ibid. 146  J Fortescue (Sir), ‘The Governance of England’ in S Lockwood (ed), On the Laws and Governance of England (Cambridge, Cambridge University Press, 1997) 95. De Dominio Regali et Politico was published in 1715 as Difference Between an Absolute and Limited Monarchy, and in 1885 under the title The Governance of England. On Fortescue’s ‘subtle blend of religious and secular ideas’, see J Guy, ‘Thomas More and Christopher St German: The Battle of the Books’ in A Fox and J Guy, Reassessing the Henrician Age: Humanism, Politics and Reform, 1500–1550 (Oxford, Blackwell, 1986) 95–120, 119. 147 Kantorowicz, The King’s Two Bodies, 8.

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Fortescue argued that the institution of monarchy (rather than the king himself) was a power for good, and that therefore the monarchy (rather than the king) resembled the angelic choir. Kantorowicz quoted from the first line of The Digest of Justinian—‘Ius est ars boni et aequi’—as justification for the claim that jurisprudence was defined as an art, as well as a science.148 He claimed that jurists rather than figurative artists of the Renaissance period first identified art as an imitation of nature. Jurists of the early modern era became the priests of their art, lawyer-poets who expounded the meaning of law. Kantorowicz noted that it was Ulpian who first described jurists as priests, ‘for we worship justice’.149 The juridical application of law is an aesthetic exercise in which artificial reason dominates and determines both process and outcome. For Fortescue and other early modern jurists, while the practice of law demanded mastery of artificial skills, common law itself was believed to be nothing less than pure and tried reason, in accord at all times with the tenets of natural law. Also, Fortescue was adamant that at the socio-political level, common law was concerned primarily with the maintenance and enhancement of community. The body politic, as described by Fortescue (in Chapter XIII of De Laudibus), was analogous with a communitarian state, along lines imagined by Aristotle and later by St Augustine, from whose de Civitate Dei Fortescue quoted: ‘a People is a Body of Men joined together in Society by a Consent of Right, by an Union of Interests, and for promoting the Common Good’.150 The king was the head of this political body; his function was ‘to govern and control’ the body. But the overwhelming impression of the res publica imagined by Fortescue is its adherence to the ­Ciceronian maxim salus populi suprema lex esto: ‘so, in the Body Politic, the first Thing, which lives and moves, is the Intention of the People, having in it the Blood, that is, the Prudential Care and Provision for the Public Good’.151 Kantorowicz puts it slightly differently: ‘in the Crown the whole body politic was present—from king to lords and commons and down to the least liege-man’.152 The king was both conduit and symbol of justice, the image of equity and the embodiment of a paradox, ‘at once lord and serf of the Law’.153 If, as is the case in Macbeth, the king transmutes into a symbol of injustice and is manifestly not acting for the public good, the question arises whether his deposition might ever be lawful.

148 

ibid, 139, fn 161. ibid, 139. Buchanan made the same observation regarding sixteenth-century lawyers: ‘The lawyers, who greatly magnify their art, and would be thought the high-priests of justice’, G Buchanan, De Jure Regni apud Scotos Dialogus, R MacFarlan (trans) (Edinburgh, A Murray, 1799) 20. 150  St Augustine, de Civitate Dei Bk X.c.24, quoted in Fortescue, De Laudibus, 21–22. On Fortescue and St Augustine, see Chapter 4, n 127, below. The analogy between the human body and the state may be found in Aristotle’s Politics: Aristotle, The Politics, TA Sinclair (trans) (London, Penguin, 1992) 303, Bk V.iii.1302b33. 151 Fortescue, De Laudibus, 22; see A Cromartie, The Constitutionalist Revolution: An Essay on the History of England, 1450–1642 (Cambridge, Cambridge University Press, 2006) 21. 152 Kantorowicz, The King’s Two Bodies, 363. 153  ibid, 96. 149 

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Rebirth is a central injunction in the Letter of St Paul to the Ephesians. If the people reject the bogus teaching of dupes and rogues, and accept in its place the Word of God, then the love of Christ will bring unity to a disjointed society, binding individuals into a single body, with Christ at its head.154 It is noteworthy that Coke should have made a similar plea for unity, incorporating the Pauline metaphor of the body into a speech, delivered in his home city of Norwich, soon after his elevation to the office of Chief Justice of the Common Pleas in 1606: In Gods name, then let vs ioyne in our prayers, and Sacraments, and performe a due obedience to God, and to our King, as wee are all of one Nation, so let vs be all of one Church, and Christ beeing onely our head, let vs all desire as in one sheepfolde, to be the sanctified members of his glorious bodie.155

The synthesis of secular jurisprudence and Judaeo-Christian theology was a notable feature of early modern constitutional theory in the aftermath of the Henrician Reformation, as apologists for the English state sought to legitimise its sovereign, jurisdictional authority as an autonomous imperial power. The king was represented in Tudor figurative art as Imago Dei—the embodiment of divine authority—and the Pauline metaphor of the body of the church, with Christ as (and at) its head, was adapted by the crown to justify the claim of the supreme civil magistrate to be head of the church. The head takes on an unprecedented symbolic function in the lexicon of kings. Writing in 1598, James VI of Scotland noted: For from the head, being the seate of Iudgement, proceedeth the care and foresight of guiding, and preventing all evill that may come to the body or any part thereof. The head cares for the body, so doeth the King for his people. As the discourse and direction flowes from the head, and the execution according thereunto belongs to the rest of the members, every one according to their office: so is it betwixt a wise Prince, and his people.156

The metaphor was developed by jurists, elaborating on the original conceit to describe a body politic, with the king as its head, connected to his subjects by a nexus of nerves, tendons and ligaments. Hence in his report of Calvin’s Case, concerning allegiance owed the King of England by an alien and that person’s reciprocal rights in England, Coke applied the Pauline image of the body to represent the relationship between king, law and subject.157 In relation to the charge of High Treason, the emotive imagery of the body was a recurring motif, in terms both of the mandatory sentence upon conviction (hanging, drawing and quartering) and the language employed in the juridical proceedings. At the trial of the Earl of Essex on 19 February 1601, following the

154 

Ephesians 4.14–17; see Chapter 4, text to nn 11–15, below. E Coke (Sir), The Lord Coke His Speech and Charge. With a Discoverie of the Abuses and Corruption of Officers (London, Christopher Pursett, 1607) sig. F3.r–sig. F3.v. 156  ‘The Trew Law of Free Monarchies’ in King James VI and I: Political Writings, JP Sommerville (ed) (Cambridge, Cambridge University Press, 1994) 76–77. 157 Coke, Postnati. Calvin’s Case, 10a–10b. 155 

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failed rising of 8 February, Coke accused Essex and his supporters of carrying treason ‘in their Hearts’, while at the same trial Sir Robert Cecil accused Essex of standing ‘for Treachery, wherewith your Heart is possess’d’.158 In Renaissance terminology, the heart was the birthplace of thought, and the head gave expression to that thought. The head of the traitor had articulated the traitorous thoughts engendered in the heart, thereby endangering the head of state. The elaborately staged mode of execution was charged with symbolism. During the trial of the Gunpowder plotters, Coke explained the significance of the ritualised execution of traitors. Most striking in his elucidation is that the sentence represented abhorrence at an offence against nature, crucial to the execution of which was the symbolic extinction of regeneration, continuity and succession. The traitor ‘hath been retrograde to nature, therefore is he drawn backward at a horse-tail.’ He was drawn behind the horse, on a hurdle, with his head touching the ground, ‘being thought unfit to take benefit of the common air.’ He was ‘hanged up by the neck between heaven and earth, as deemed unworthy of both, or either’.159 As John Bellamy has noted, emasculation of the body, after the (still breathing) subject had been cut down from the scaffold, was intended to ‘show his issue was disinherited with corruption of blood.’160 The amputated genitals of the traitor were ‘burnt before his face as being unworthily begotten, and unfit to leave any generation after him.’161 His viscera were cut out ‘and burnt, who inwardly had conceived and harboured in his heart such horrible treason.’ The head was struck from the body, representing in microcosm the thwarted ambition of the traitor—to remove the head not only of the body natural of the king, but also of the body politic of the state. As punishment, the traitor’s own head was removed from his body. In Coke’s words: ‘After, to have his head cut off, which had imagined the mischief.’ Finally, the body was quartered, the parts being displayed at prominent locations around the city, ‘to become a prey for the fowls of the air.’162 Macbeth suffered decapitation at the hands of Macduff: ‘Behold where stands / Th’usurper’s cursed head’ (5.7.84–85). Macbeth was king (whether de iure or de

158  ‘The Trial of Robert Earl of Essex, and Henry Earl of Southampton, before the Lords, at Westminster, for High-Treason, the 19th of February 1600. 43 Eliz.’, Anon, A Complete Collection of StateTrials, and Proceedings for High Treason, 11 vols (London, C Bathurst, J & F Rivington, 1776–81) 1: 205. 159  ‘Trials of Robert Winter, Thomas Winter, Guy Fawkes’ in Howell (ed), State Trials, 2: 184. 160 Bellamy, Tudor Law of Treason, 204. 161  Bellamy argues that the reason for evisceration of the entrails was based on ‘medieval belief that it was in the body of the traitor that his treasonable thoughts had their birth, and that his entrails therefore must be purged by fire’: ibid. 162  ‘Trials of Robert Winter, Thomas Winter, Guy Fawkes’ in Howell (ed), State Trials, 2: 184. In his discussion of torture and execution in early modern Europe, Foucault reflects the inference of Coke, that through the exact form of punishment the extent of the crime must be made visible: ‘The tortured body is first inscribed in the legal ceremonial that must produce, open for all to see, the truth of the crime’, M Foucault, Discipline and Punish: The Birth of the Prison, A Sheridan (trans), (London, Penguin, 1991) 35. Girard argues that the subject of ritualised execution ‘served to polarize all the fears, anxieties, and hostilities of the crowd. His violent death provided the necessary outlet for the mass anguish, and restored peace’: R Girard, Violence and the Sacred, P Gregory (trans) (Baltimore, Johns Hopkins University Press, 1977) 131.

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facto is debatable, although as I have already discussed he was elected and installed according to Scottish custom): his execution rendered Macduff a regicide. In his Historie of Scotland, Holinshed contrasted the goodness of Duncan with the savagery of Macbeth: Duncan was ‘soft and gentle of nature’, while Macbeth was ‘somewhat cruell of nature’;163 but Holinshed did not dispute the validity of ­Macbeth’s claim to the throne, after he had killed Duncan: ‘he caused himselfe to be proclamed king, and foorthwith went unto Scone, where (by common consent) he received the investure of the kingdome according to the accustomed maner.’ Moreover, unlike Shakespeare’s Macbeth, the actual king was (at least at the start of his reign) set on a just course, intending to remedy the wrongs that Duncan had allowed to flourish: ‘he set his whole intention to mainteine iustice, and to punish all enormities and abuses, which had chanced through the féeble and slouthfull administration of Duncane.’164 In The Trew Law of Free Monarchies,165 James VI expounded at considerable length on the subject of the deposition of tyrants. Monarchy was ordained by the deity, and condoned by ‘the fundamental Lawes’ and ‘the law of Nature’.166 As the king was anointed by God, so it was for the deity alone to ‘unmake him’.167 His argument shifted from the spiritual to the temporal, as he invoked the anatomical image of the human body as a microcosm of the state, implying that the body would die if the head were to be cut off.168 The reference by James to the ‘inordinate lustes and passions’169 of a tyrannical king is strongly redolent of Malcolm’s protestations of lust, avarice and ‘All the particulars of vice so grafted’ (4.3.51), with which he tests Macduff ’s loyalty; but James was insistent that the accession of a tyrant was providential: A wicked king is sent by God for a curse to his people, and a plague for their sinnes: but that it is lawfull to them to shake off that curse at their owne hand, which God hath laid on them, that I deny, and may do so iustly.170

The sentiments expressed by James in the above passage, regarding the wisdom and irrefutable authority of an omnipotent deity, were not original. In the anonymous An Homilie agaynst disobedience and wylful rebellion (published in 1570), the

163 

Holinshed, ‘The Historie of Scotland’, 2: 168. ibid, 2: 171. For the first 10 years of his reign, Macbeth ruled with ‘equall iustice. But this was but a counterfet zeale of equitie shewed by him, partlie against his naturall inclination to purchase thereby the favour of the people. Shortlie after, he began to shew what he was, in stead of equitie practising crueltie’: ibid, 2: 172. 165  The first edition of The Trew Law was published in Edinburgh in 1598. Such was its commercial success that in 1603 it was reprinted four times in London. See A Yamada, ‘The Printing of King James I’s The True Lawe of Free Monarchies with Special Reference to the 1603 Editions’ (1986) 23 Poetica 74–80. 166  James VI, ‘Trew Law of Free Monarchies’, 64. 167  ibid, 68. 168  ibid, 78. 169  ibid, 79. 170 ibid. 164 

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author(s) wrote ‘that kynges and princes, as well the evyl as the good, do raigne by Gods ordinaunce, and that subjects are bounde to obey them’.171 Over the issue of a breach of the pactum or social contract between king and subject,172 James was equivocal. He denied ‘any such contract to bee made then’, although he conceded that at his coronation the King promised to ‘discharge honorably and trewly the office given him by God over them’. He then admitted that such a contract did exist, but that in the event of an alleged breach of it by the king, then ‘God is doubtless the only Iudge’. Therefore it followed that ‘God must first give sentence upon the King that breaketh, before the people can thinke themselves freed of their oath’.173 James was astute in identifying the ultimate source of spiritual authority as the sole arbiter of temporal disputes between king and subject. He intended thereby to render inadequate the capacity of any temporal jurisdiction to pass judgement on the actions of a king. There was impressive juristic authority (of which Fortescue’s De Laudibus was the exemplar) for the assertion that municipal law was of divine provenance, on the grounds that legislators derived their authority from God.174 In his later work, De Dominio Regali et Politico,175 Fortescue reflected on the Thomist theory that the prince who governed both royally and politically (dominium ­politicum et regale), that is to say with some level of assent from the populace, was less likely to rule tyrannically than one who governed by royal dominion alone.176

171 Anon, An Homilie against disobedience and wylful rebellion (London, Rychard Iugge and Iohn Cawood, 1570) sig. Aii.v. 172  In his Ad Gebehardum liber of 1085, Manegold of Lautenbach proposed a theory of resistance the central tenet of which was that kings held power according to a pactum: see AJ Carlyle, ‘Political Theory from the Tenth Century to the Thirteenth’ (1915) in RW Carlyle and AJ Carlyle, A History of Medieval Political Theory in the West, 6 vols (Edinburgh, Blackwood, 1903–36) 3: 168. 173  James VI, ‘Trew Law of Free Monarchies’, 81. John Knox justified rebellion against Mary Queen of Scots on religious grounds. For Knox, Mary was a papist and (therefore) an idolatress, rendering her rule unlawful in the eyes of God: ‘For all those that wold dram us from God (be they Kings or Quenes being of the devils nature) are enemyes unto God, and therfore wil God, y in suche cases we declare our selves enemies unto them’, J Knox, An admonition or vvarning that the faithful ­Christians in London, Newcastel Barwycke & others, may auoide Gods vengeance bothe in thys life and in the life to come (London, J Day, 1554) sig. C.viii.r. Knox railed against rule by women, on grounds of its unlawfulness: J Knox, The First Blast of the Trumpet Against the Monstrous regiment of Women (Geneva, J Poullain and A Rebul, 1558); see Chapter 3, text to nn 102–103, below. For the opinion that rebellion against tyrannical kingship was lawful, see W Allen, A conference about the next succession to the crowne of Ingland diuided into two partes (Antwerp, R Doleman, 1595), 38. Robert Parsons is often credited with sole authorship of this work, but it is probable that his authorial contribution was minimal. On theories of justified rebellion in the early modern period, see volume 2 of Q Skinner, The Foundations of Modern Political Thought, 2 vols (Cambridge, Cambridge University Press, 1978), entitled ‘The Age of Reformation’. 174 Fortescue, De Laudibus, 5. 175  De Laudibus was written between 1468 and 1471, while Fortescue was exiled in France; see ­Chapter 3 below, n 21. Fortescue presented a copy of De Dominio to Edward IV in October 1471; see Fortescue, ‘The Governance of England’, Introduction, xlii, xliii. 176  ibid, 84. Fortescue was referring to Thomas Aquinas, On Princely Government, I.vi. Aquinas is thought to have written only the first book of On Princely Government and the first four chapters of the second book. Scholars are of the opinion that Ptolemy of Lucca completed the work. Fortescue cites two other sources in Chapter 1 of De Dominio: Roger of Waltham, Compendium Morale, c 1300

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On the distinction between kingship and tyranny, Fortescue was also equivocal. He cited the example of the Biblical hunter Nimrod, who subdued his realm by tyranny, oppressed his people, and therefore was known not as a king, but as ‘the first of the tyrants’.177 Despite making the distinction between kingship and ­tyranny, Fortescue observed that Nimrod was described in The Book of Genesis as ‘a mighty hunter before the Lord’.178 He was, in effect, a good ruler. As JH Burns has noted, Fortescue referred to the power exercised by Nimrod as dominium ­despoticum,179 rather than dominium regale (Nimrod was succeeded by Belus, ‘who was first called a king’); but he went on to suggest that (in Burns’s own words) ‘a strong arm seizure of power’ may be acceptable to subjects if it offered protection against the wrongs of other subjects.180 More than 100 years after De Dominio was written, in De Republica Anglorum (published in 1583),181 Sir Thomas Smith was similarly equivocal over the distinction between a king and a tyrant, ‘who by force commeth to the Monarchy against the will of the people’. Smith argued that a ruler could be both tyrant and king: ‘a tyrant by the entrie and getting of the rule and a king in the administration thereof.’ He cited as examples two supreme magistrates from classical antiquity, both of whom acceded to the throne by questionable means, but whose conduct while in office as rulers was (as Smith asserted) exemplary. These were the emperor Augustus (63 BC–14 AD) and the dictator Sulla (138 BC–78 BC): ‘both coming by tyranny and violence to the rule did seeme to travaile verie much for the better orderinge of the commonwealth’.182 Smith also gave examples of rulers from antiquity who succeeded to the throne as kings, but who became tyrants during the course of their rule.183 He wrote in general terms of oppressed subjects, who

(Bodleian Laud MS Misc 616); Giles of Rome (c 1243–1316), On Princely Government. See JH Burns, ‘Fortescue and the Political Theory of Dominium’ (1985) 28 The Historical Journal 777–97. 177  Fortescue, ‘The Governance of England’, 85. By his use of the phrase rex per analogiam in regno a regendo, Fortescue alluded to St Augustine, who noted that when the Romans ‘found the domination of kings intolerable’, they established authority in the form of ‘two men, who were called “consuls”, from consulere (to take counsel), not “kings” (reges), a word derived from regnare (to reign), or “lords” (domini), derived from dominare (to dominate)’: St Augustine, City of God, H Bettenson (trans) ­(London, Penguin, 2003) 197, Bk V.c.12. See Burns, ‘Fortescue and the Political Theory of Dominium’, 787. 178  ‘And Cush begat Nimrod: he began to be a mighty one in the earth. He was a mighty hunter before the Lord’, Genesis, 10.8–9. 179  Burns, ‘Fortescue and the Political Theory of Dominium’, 786. 180  ibid, 787. 181  Collinson makes the important observation that in the sixteenth century, Republica was not incompatible with monarchy. It referred simply to the state, which in England (according to Smith) ‘is farre more absolute than either the dukedom of Venice is, or the kingdome of Lacedemonians was’: T Smith (Sir), De Republica Anglorum, M Dewar (ed) (Cambridge, Cambridge University Press, 1982) 85, Bk II.3; see Collinson, ‘The Monarchical Republic of Queen Elizabeth I’ in Collinson, Elizabethans, 31–58, 36. 182 Smith, De Republica Anglorum, 53, Bk I.7. On Smith’s monarchical republic, see Chapter 3, text to n 72, below; see also, A McLaren, ‘Reading Sir Thomas Smith’s De Republica Anglorum As Protestant Apologetic’ (1999) 42 The Historical Journal 911–939. 183  ‘An other may be a king by the entrie, and a tyrant by the administration, as Nero, Domitian, and Commodus’, Smith, De Republica Anglorum, 53, Bk I.7.

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‘either faile of corage and wexe servile, or never rest while they either destroy their king or them that would subdue them, or be destroyed themselves’;184 but he did not discuss the question of the legitimacy of deposition in the case of a tyrant. The Elizabethan cleric and political theologian Richard Hooker referred to tyranny in Book VIII of Of the Laws of Ecclesiastical Polity.185 Under tyranny, he wrote, ‘the whole community is wretched’.186 For Hooker, law was the king of the people, and to this end he restated the Bractonian maxim lex facit regem, in support of the principle of limited monarchy.187 The main intellectual premise of Book VIII was to found the moral basis of municipal law in Aristotelian reason, and to limit the powers of kings according to the laws of God and nature.188 Hooker’s use of simile was striking, notably that where the king guided the state and the law guided the king, then ‘that commonwealth is like an harp or melodious instrument’;189 but he offered no specific or practical remedy for the discord engendered by tyranny. He alluded to civil disobedience in Book I of Of the Laws, in which he cited The Epistle of Paul to the Romans as authority for the injunction: ‘Let every soule be subject to the higher powers.’190 Further to this, he stated that the principal function of public powers in all human societies was to make laws, which all subjects were bound to obey, ‘unlesse there be reason shewed which may necessarily inforce, that the Law of Reason or of God doth injoyne the contrary.’191 But he failed to develop the thesis implicit in the qualification that public rebellion or civil disobedience may be either justified or legitimate.

184  Smith claimed that there are ‘histories enough to beare witnesse, as the Greekes, Romanes, ­Samnites, Danes, Vandals, and others’, but he offers no specific instances, ibid, 63, Bk I.15. 185  Books I–IV of Of the Laws were published in 1593, Book V in 1597, Book VIII (and the surviving portion of Book VI) in 1648, Book VII in 1662. The timing of publication was significant, as Books VII and VIII expressed opinions in stark opposition to the theory of divine right. For a collection of essays on Hooker, see AS McGrade (ed), Richard Hooker and the Construction of Christian Community (Binghamton, Medieval and Renaissance Texts and Studies [vol 165], 1997). 186  R Hooker, Of the Laws of Ecclesiastical Polity, AS McGrade (ed) (Cambridge, Cambridge University Press, 1989) 147, Bk VIII.c.3.3. 187  ‘The axioms of our regal government are these, Lex facit Regem. The King’s grant of any favour made contrary to law is void’: ibid. Bracton emphasised the dual supremacy of God and law: ‘Ipse autem rex non debet esse sub homine sed sub deo et sub lege, quia lex facit regem’ [‘The king must not be under man but under God and under the law, because law makes the king’]: H de Bracton, De Legibus et Consuetudinibus Angliae (c 1235), SE Thorne (trans), 4 vols (Cambridge, Mass, Belknap Press, 1968– 77) 2: 33. On the rejection by the early Stuart kings of Hooker’s restatement of Bractonian principles, see Chapter 3, text to nn 180–82, below. 188  Elsewhere, Hooker wrote of ‘a sober will, will in all things framed by reason; reason directed by the law of God and nature’: R Hooker, A Learned Sermon of the Nature of Pride (London, John Barnes, 1612) sig. B.v. 189 Hooker, Of the Laws, McGrade (ed) 146, Bk VIII. c.3.3. 190  ‘Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God’: The Epistle of Paul to the Romans, 13.1. 191  R Hooker, Of the Lawes of Ecclesiastical Politie (London, William Stansbye, 1622) 50, Bk I.c.16. McGrade notes that Hooker followed and developed Aristotelian thought: ‘Deepening Aristotle’s acknowledgement of religion as part of a complete polis, Hooker makes it the chief good of the soul for which a body politic will naturally “care” (VIII.I.4)’, Hooker, Of the Laws, McGrade (ed), xxv.

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In The Trew Law, James VI referred explicitly to the possibility of excising or amputating ‘some rotten member’ in order to preserve the integrity of the body politic; but he stated resolutely that the head of the body politic should never be cut off, implying (and carrying the anatomical metaphor to its logical conclusion) that without its head the body would die.192 Almost certainly, he was responding to the forthright denunciation of tyranny, expressed by his boyhood tutor George Buchanan in De Jure Regni Apud Scotos Dialogus (published in 1579). It is noteworthy that both works used the metaphor of a sick body to depict a failing nation state. In the above, important work of republican political philosophy, Buchanan promoted the principles of constitutional monarchy in the form of a dialogue between himself and Thomas Maitland (son of the Scottish courtier and writer Sir Richard Maitland of Lethington). The main thesis of De Jure Regni was that political power resided in the people, and that both resistance to and punishment of tyrants were lawful; but the work could also be read as an apologia for the deposition of Mary Queen of Scots in 1567. Buchanan dedicated De Jure Regni to the young James VI, and included the following injunction: ‘If you obey its directions, you will insure to yourself and to your family in the present life temporal tranquillity, and in the future, eternal glory’.193 Buchanan described the ideal king as a physician whose business was to cure any ills in the body.194 He rejected as ‘the tyranny of custom’ the claim that it was better to tolerate bodily pain, rather than endeavour to ‘cure the disease’. Better by far to attempt a cure, even if such action endangered ‘the constitution of the whole body.’195 He also rejected as absurd the idea that tyrants were sent by God to punish the wickedness of the people: ultimately, ‘the man, with whom the divine law will allow them [the citizens] no commerce, can no longer be their king.’196 There was a grim irony to the fact that, 70 years after Buchanan had written of the legitimacy of deposition—of cutting off the diseased head of the body politic—and 50 years after James VI had written words to the effect of the ­complete opposite, Charles I should have been tried and beheaded as a tyrant and traitor. The venue for the trial, in January 1649, was Westminster Hall. The indictment

192  James VI was somewhat oblique in his mode of expression: ‘but what state the body can be in, if the head, for any infirmitie that can fall to it, be cut off, I leave to the readers iudgement’, James VI, ‘Trew Law of Free Monarchies’, 78. 193 Buchanan, De Jure Regni, iv. See JH Burns, ‘George Buchanan and the Anti-Monarchomachs’ in N Phillipson and Q Skinner (eds), Political Discourse in Early Modern Britain (Cambridge, Cambridge University Press, 1993) 3–22; also, JH Burns, ‘The Political Ideas of George Buchanan’ (1951) 30 The Scottish Historical Review 60–68. Jordan asserts that The Trew Law was a deliberate response to De Jure Regni; further to this, she argues that The Trew Law was ‘also shaped to fit the terms of a republican challenge to absolute monarchy’: C Jordan, Shakespeare’s Monarchies: Ruler and Subject in the Romances (Ithaca, Cornell University Press, 1997) 7. On the ‘disastrous relationship’ between Buchanan and the young James VI, see A Hadfield, Shakespeare, Spenser and the Matter of Britain (Basingstoke, Palgrave Macmillan, 2004) 45–47, 46. 194 Buchanan, De Jure Regni, 10; Buchanan also compared ‘civil commotions to diseases’, ibid. 195  ibid, 51. 196  ibid, 59.

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stated that he had been ‘trusted with a limited power to govern by and according to the laws of the land’; a trust which he had betrayed for ‘a wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people’.197 In the context of the present study, the interest of the trial is that the proceedings transformed the political philosophy espoused by various writers under discussion in this chapter (notably James VI and Fortescue) into theatrical action, lending their thoughts dramatic form and physical substance. Charles I himself noted the mimetic quality of the courtroom and its actors: refusing to accept the authority of the ad hoc court, he referred to those who were commissioned to try him, as ‘my pretended Judges’.198 In refusing to plead, on the singular ground that ‘a King cannot be tried by any superior Jurisdiction on Earth’,199 Charles demonstrated adherence to the published beliefs of his father, that kings were above the law and accountable only to God. Expressing the antithetical opinion that in a mixed polity such as England’s, ‘the King has no more Power or Authority, than what by Law is concredited and committed to him’, the Solicitor-General, John Cook, cited Fortescue as authority for the claim. Cook employed the same bucolic imagery that Fortescue had used in De Laudibus to describe the excellence of the English constitution. Like Fortescue before him, Cook compared foreign jurisdictions unfavourably with the English legal system, on the grounds that their arable lands were not as fertile or productive as those of England: The first [dominium regale], where the Edict of a Prince makes the Law, resembles an impetuous Inundation of the Waters, whereby the Corn and Hay, and other Fruits of the Earth are spoiled, as when it is Midwinter at Midsummer: the latter [dominium politicum et regale] is like a sweet smooth Stream, running by the pleasant Fields and Meadows.200

197  The trial began on Saturday 20 January 1649. An extraordinary moment of dramatic symbolism occurred on the first day of the trial: ‘as the Charge was reading against the King, the Head of his Staff fell off, which he wondered at; and seeing none to take it up, he stooped for it himself ’, J Nalson (ed), The Trial of Charles the First, King of England, before the High Court of Justice, for High-Treason (London, 1740) 10. 198  ibid, 8. John Cook, the Solicitor-General, referred to the offence of which Charles I was charged as ‘the highest Treason was ever wrought upon the Theatre of England’: ibid, 17. 199  ibid, 12. 200  ibid, 54. For the description by Fortescue of England as an Arcadian idyll, see Chapter 3, text to nn 66–70, below. The speech by Cook, from which this extract was taken, was written for the trial, but was not delivered in court, because throughout the trial Charles I refused to plead. Whether Cook intended an allusion to A Midsummer Night’s Dream is unclear, but there are thematic parallels with Titania’s speech on the intemperate climate, notably: ‘and the green corn / Hath rotted ere his youth attained a beard’ (2.1.94–95); and ‘The spring, the summer, / The childing autumn, angry winter change / Their wonted liveries’ (2.1.111–113). Cook mentioned Shakespeare later in his speech, stating that had Charles ‘studied Ben Johnson or Shakespear, he might have learned, That when Amaziah was settled in the Kingdom, he suddenly did Justice upon those Servants who had killed his Father Joash’: Nalson (ed), Trial of Charles the First, 63. The Biblical reference is to 2 Kings 12.20–21; 2 Kings 14.1, 14.5. As well as alluding above to the murder of Duncan, and the subsequent killing of Macbeth’s servants, Cook addressed rumours concerning the death in 1625 of James I, and the possible involvement

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Perhaps most striking of all is the use throughout the trial of anatomical imagery, to convey a sense of the primacy of unwritten or natural law (and conversely, to represent the inversion of natural law by those supreme magistrates who demonstrated opposition and resistance to its rational tenets). Unwritten law, natural law, and divine law were depicted as coextensive and indivisible. There were unmistakable echoes of Sir Edward Coke and Sir John Davies in the assertion made by Solicitor-General Cook that ‘this Law of Nature is the law of God, written in the Fleshly Tables of Mens Hearts’.201 Cook compared Charles I to the infamous Roman Emperor, ‘(by the Way let us call him a great Roman Tyrant) Caligula, who wished the People of Rome had but one Neck, that at one Blow he might cut it off.’202 The accusation of tyranny was brushed aside by Charles, who repeatedly asked the court by whose lawful authority he had been summoned to appear.203 He received the arbitrary response from John Bradshaw (Lord President of the Court) that ‘we are satisfied with our Authority, and it is upon God’s Authority and the Kingdom’s’.204 A more convincing answer to the question posed by Charles I may have lain in the theory of the king’s two bodies: the king’s body natural was tried in the name of the king’s body politic, as represented by the court. As early as May 1642, Parliament had declared that even though judgment were given in the King’s courts ‘against the King’s Will and Personal command, yet are they the King’s Judgments.’205 Kantorowicz argued that in January 1649 the tribunal tried, convicted, and sentenced to death ‘the king’s body natural without affecting seriously or doing irreparable harm to the King’s body politic.’206 Whether it was St Paul, in 1 Corinthians, describing the Christian commonwealth on earth as ‘many members, yet but one body’,207 or Thomas Hobbes in 1651, invoking the

of the Duke of Buckingham in hastening his demise. In the same speech, Cook implied that Charles may have colluded with Buckingham in killing James: ‘How the King first came to the Crown, God and his own Conscience best knew’, Nalson (ed), Trial of Charles the First, 62; see A Bellany and T Cogswell, The Murder of James I (New Haven, Yale University Press, 2015); also, Stewart, The Cradle King, 344. 201  Nalson (ed), Trial of Charles the First, 79. On Coke and Davies and the law of nature ‘being written only in the hart’, see Chapter 4, text to nn 36–37, below. Cook referred to Coke later in the speech: ‘The Law of England is Lex non Scripta, and we have a Direction in the Epistle to the 3 Rep. That when our Law-books are silent, we must repair to the Law of Nature and Reason’, Nalson (ed), Trial of Charles the First, 86. 202  ibid, 37–38. 203  ‘And therefore let me know by what lawful Authority I am seated here, and I will answer it, otherwise I will not answer it’: ibid, 8. 204  ibid, 9. 205  Quoted in Kantorowicz, The King’s Two Bodies, 21. 206  ibid, 23. The accuracy of this assertion is debatable, as de facto the body politic resided in the representatives of the Commonwealth rather than the king, following the abolition of the monarchy and the House of Lords, and the execution of Charles I, in 1649. On 14 February 1649, the Council of State was appointed by Parliament to act as the executive arm of government, replacing the king and the Privy Council; see JR Tanner, English Constitutional Conflicts of the Seventeenth Century, 1603–1689 (Cambridge, Cambridge University Press, 1928) 156. 207  The First Epistle of Paul the Apostle to the Corinthians, 12.20.

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image of the Biblical Leviathan to represent ‘The Matter, Forme, and Power of A Common-Wealth Ecclesiasticall and Civil’208—‘His heart is as firm as a stone; yea, as hard as a piece of the nether millstone’209—the image of the body was crucial in imagining the philosophical and political development of both the divine and secular common-weal. The decapitated corpses of Charles I and Shakespeare’s Macbeth betokened the death of tyranny, but they symbolised also a mutilated body politic, a headless state the direction of which was uncertain and unpredictable.210 Despite the enduring status of the human body as a potent image of the state, Macbeth paints a discomfiting portrait of the king’s two bodies. Unlike in Richard II, which Kantorowicz described as ‘the tragedy of the King’s Two Bodies’,211 the themes of divinely anointed kingship and the indivisibility of bodies natural and politic are not absolutely central to the drama in Macbeth. This is not to deny that the spirituality of kingship is an important theme in the play. The saintly Duncan is murdered and in whom the body politic then resides remains a pertinent question;212 but in dramatic terms the theme of the king’s two bodies does not drive the psychological development of its central character (or its narrative), as it does in Richard II. Only a few lines after Macbeth has announced that ‘The Lord’s anointed temple’ (2.3.70) has been broken open, he observes that ‘There’s nothing serious in mortality—/ All is but toys: renown and grace is dead’ (2.3.95–96). The apparent rejection of renown and grace, especially in the context of a murdered king (even accepting that Macbeth is counterfeiting grief here, for the benefit of those present), suggests development from the claim made in Richard II, some 10 years before Macbeth was written, that being ‘The deputy elected by the Lord’ (3.2.57) rendered kingship sacrosanct and unassailable. It raises the question whether Shakespeare was positing the argument that in Jacobean England, the theory of the king’s two bodies was increasingly to become a metaphysical ‘toy’, an intellectual antic, of diminished political importance.213

208  T Hobbes, Leviathan, or, The Matter, Forme, and Power of A Common-Wealth, Ecclesiasticall and Civil (London, Andrew Crooke, 1651), title page. 209  The Book of Job, 41.24; this verse is cited on the title page of the first edition of Leviathan. 210  With reference to Shakespeare’s late plays, Jordan argues that under tyranny, ‘the ruler remains only a severed head; his state is therefore a headless body’: Jordan, Shakespeare’s Monarchies, 213. 211 Kantorowicz, The King’s Two Bodies, 26. 212  Hawkins notes: ‘What Macbeth in fact could not get away with was not Duncan’s murder (which he does), but incompetent rule’, Hawkins, ‘History, Politics and Macbeth’, 177. 213  FW Maitland described the theory (as described by Plowden) as ‘metaphysical—or we might say metaphysiological—nonsense’: see Chapter 4, text to n 141, below.

3 The Winter’s Tale: An Art Lawful as Eating I.  Law, Literature and Genealogy In Law’s Empire, Ronald Dworkin argued that the literary techniques used by writers of fiction were similar to those used by the judges of common law. Dworkin employed the image of the chain novel (written by a succession of authors, each one interpreting and adding to the previous chapter) to explain the role of the judge in interpreting and adding to the existing body of law.1 For Dworkin, rights and duties ‘flow from past collective decisions’,2 and history is central to the project of law because it enables our lawgivers through present practice to ‘provide an honorable future’ by reference to the rectitude of past judgments.3 From the alternative perspective of a novelist, Ian McEwan (in The Guardian) discussed the process of writing The Children Act, a novel whose principal character is a judge in the Family Division of the High Court.4 In his article, McEwan provides the lay reader with a valuable insight not only into the research processes of a novelist but also into the cloistered world of the High Court judiciary. The action of The Children Act for the most part moves between the Royal Courts of Justice in the Strand and an apartment, rented by his fictional judge— Mrs Justice Maye—in Gray’s Inn. McEwan comments especially on what he perceives to be the shared working methods of novelists and senior members of the judiciary, identifying thereby a clear analogy between decisions recorded in the law reports and the narrative structure of the novel. He describes meeting judges in the course of his research and discussing with them their work. He was immediately impressed by ‘the parallels between our professions, for these judgments were like short stories, or novellas’.5 He remarks specifically on the compassion, intelligence and wit of the judgments, delivered from a ‘godly distance’, which reminded

1 

R Dworkin, Law’s Empire (London, Fontana, 1986) 228–32. ibid, 227. 3  ibid, 228. 4  I McEwan, The Children Act (London, Jonathan Cape, 2014). 5  Throughout the book, McEwan refers to the literary techniques of the judiciary; for example, ‘Among fellow judges, Fiona Maye was praised, even in her absence, for crisp prose, almost ironic, 2 

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him of ‘a novelist’s omniscience’. It is noteworthy that McEwan’s engagement with the judiciary was restricted to the Family Division of the High Court (it is refreshing in this respect to see a modern work of narrative fiction that examines the legal institution from a perspective other than that of the criminal law). The overriding theme of the novel is the problematic decisions judges of the Family Division are required to make in certain cases, concerning momentous ethical, moral and religious issues. McEwan cites the examples of life-saving blood transfusions for the children of Jehovah’s Witnesses and the determination of life and death in cases of conjoined twins.6 He seems to be drawn towards a spiritual interpretation of the judge’s role as being at the very least sacerdotal and at most deific. Clearly impressed by the style and substance of the judgments under consideration, ­McEwan writes: ‘If these judgments had been fiction, they would have belonged in the tradition of moral exploration that includes Jane Austen, Leo Tolstoy, George Eliot, Henry James, Joseph Conrad’.7 At the level of historiography, the body of common law may reasonably be described as a collection of stories, the cases linked to each other by their institutional history and passed down by privileged storytellers or narrators. The English legal system of the early modern period was derived from an oral tradition, its juridical procedures predicated on an agonistic model in which competing narrators presented contending stories and were judged on the basis of their persuasive skills (it should be noted that during the period under discussion defendants on trial for felonious offences were not entitled to representation by counsel unless a point of law arose from the indictment).8 The parallels with poetic drama of the late Elizabethan period are obvious, not least the recording of oral storytelling in textual form. It was in the sixteenth century, as the published law reports replaced the Year Books, that standardisation and systemisation of the common law was established. As William Holdsworth noted, the shift from oral to written pleadings made the relevant legal issues immediately apparent, while concentration on the decision of the court (rather than the debate which preceded it) provided a body of rational judgments, which were cited with particularity in subsequent trials and appeals.9 No longer would law reporters or counsel be impelled to ask judges

almost warm’: ibid, 13; and ‘With four hundred words on this theme, she put to sea, with learned references (Adam Smith, John Stuart Mill) filling her sails. The kind of civilised reach every good judgment needs’; ibid, 16. 6  McEwan was particularly impressed by the judgment of Ward LJ in Re A (conjoined twins) [2001] 2 WLR 480. 7  www.theguardian.com/books/2014/sep/05/ian-mcewan-law-versus-religious-belief. See also, The Guardian (6 September 2014, Review section) 2–3, 2. For a judicial perspective on The Children Act, see R Herz, ‘Anatomy of a Judge’ (2015) 9 Law and Humanities 123–35. 8  On the justification offered by early modern lawyers for the lack of representation in criminal cases, see Chapter 2, text to nn 104–106, above. Baker offers an alternative rationale for the absence of counsel: ‘If counsel were allowed, it was pointed out with some alarm in 1602, every prisoner would want them’, JH Baker, An Introduction to English Legal History (London, Butterworths, 2002) 510; the case to which Baker refers above is R v Boothe (1602) BL MS Add 25203, fo 569.v. 9  WS Holdsworth, A History of English Law, 17 vols (London, Methuen, 1924) 5: 371–73.

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for the reasons for their decisions, as happened in the 1565–66 case of Sharington v Strotton (a case that I discuss in considerable detail below) in which, judgment having been given against the plaintiff, Plowden recorded that counsel ‘said, may it please your lordship to shew us, for our learning, the causes of your judgment’.10 Subjective reporting of picturesque courtroom incidents was a commonplace in early law reporting, but the sixteenth century witnessed a shift towards rational and more objective reporting of the case (although Plowden occasionally included incidental courtroom occurrences, as in the 1559 case of Wrotesley v Adams, in which ‘Sir Humphry Brown who was then one of the justices did not argue at all, because he was so old that his senses were decayed, and his voice could not be heard’).11 In various of Shakespeare’s plays—notably Richard II, The Merchant of Venice, Measure for Measure and The Winter’s Tale—the trial is thrust into the narrative foreground of the action. It is not my intention here to discuss the meta-theatrical significance of these individual courtroom dramas beyond noting the obvious stylistic feature common to all of the above, that the adversarial nature of English legal disputation is intrinsically dramatic and eminently suited to theatrical interpretation, whether in the playhouse or the courtroom. These juridical set pieces aside, it is fair to say that many of the narratives of Shakespeare’s plays are driven by dramatic engagement with the law and its impact on individual members of the society that is represented onstage. For example, the frenetic plot of The Comedy of Errors is initiated by the sentencing to death of Egeon for the offence of being an enemy alien in accordance (we are told by the Duke, Solinus) with a decree of the Ephesian Parliament.12 Similarly, in A Midsummer Night’s Dream, Hermia’s refusal at the start of the play to wed Demetrius in conformity with her father’s will is a flagrant breach of the ‘sharp Athenian law’ (1.1.164) compelling filial obedience, the sentence for which offence is ‘either to die the death or to abjure / Forever the society of men.’ (1.1.67–68) Hermia and her lover Lysander flee to the wood near Athens, and the comic interaction between mortals and fairies gets underway. We need look no further than Hamlet to find evidence of its author’s technical knowledge of the idiosyncratic and impenetrable language of English law. ‘Why may not that be the skull of a lawyer?’ asks Hamlet in the graveyard scene: Where be his quiddities now, his quillets, his cases, his tenures, and his tricks? Why does he suffer this rude knave now to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Hum. This fellow might be in’s time a great buyer of land, with his statutes, his recognisances, his fines, his double vouchers, his recoveries. (5.1.97–104)

10  Sharington v Strotton, The Commentaries or Reports of Edmund Plowden, 2 vols (Dublin, H Watts, 1792) 1: 298, 309. 11 Plowden, Wrotesley v Adams, Commentaries, 1: 187, 190. 12  ‘It hath in solemn synods been decreed, / Both by the Syracusans and ourselves, / To admit no traffic to our adverse towns.’ (1.1.13–15)

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In the above passage Shakespeare weaves the jargon of property law and contract law into his protagonist’s meditation on mortality. Tenures, statutes, recognisances, fines, recoveries, vouchers, double vouchers: these are all technical terms, concerned with the acquisition and disposition of land. ‘And must the inheritor himself have no more, ha?’ (5.1.109–10), asks Hamlet at the end of his interrogation of the putative lawyer’s skull. Inheritance of land is an apt metaphor for the system of precedent upon which the authority of the common law rests and upon which Shakespeare and the early modern dramatists depended for their stories. To each new inheritor passed not only the land itself but also the history or memory of its owners, with all the stories of their quiddities, quillets, cases and tricks.13 In Shakespeare and Ovid, Jonathan Bate describes the antique literary texts from which Shakespeare and his contemporaries derived the themes (and sometimes the entire plots) of their plays and poems as ‘precedents, not sources … a conceptual exemplar, not a reservoir of raw material’. It is self-evident that, for example, the story of Pygmalion in the Metamorphoses of Ovid was an identifiable source of raw material for Shakespeare’s The Winter’s Tale (as was the story of Tereus and Philomela for Titus Andronicus, and the story of Pyramus and Thisbe for A Midsummer Night’s Dream), but the reference by Bate to precedents in literature is noteworthy in the present study for its suggestive and correlative link to the system of precedent in English law.14 The fusion of the literature and philosophy of classical antiquity with the tenets of Judaeo-Christian theology was a notable feature of early modern jurisprudence. In the Preface to Part Three of The Reports, published in 1602, Sir Edward Coke drew on the legends of the British kings, narrated by Geoffrey of Monmouth, as authority for the claim that the fictional Brutus of Troy, descendant of Virgil’s hero Aeneas, was the founder of English law.15 Coke wrote his version of the Brutus

13  The legal terms to which Hamlet refers in the above passage would have been familiar to any lawyer of the early modern period: ‘quiddities’, ‘quillities’: quibbling arguments; ‘tenures’: terms on which property was held, eg freehold or leasehold; ‘statutes’: a ‘statute staple’ secured a debt on the debtor’s lands; ‘recognisances’: bonds acknowledging a debt; ‘fines’, ‘recoveries’: legal procedures for enabling transfer of estates when obstacles such as entails prevented sale; ‘voucher’, ‘double voucher’: guarantor and second guarantor of the holder’s title to the property in an action for recovery. For explanation of legal terms in the plays of Shakespeare, see BJ Sokol and M Sokol, Shakespeare’s Legal Language: A Dictionary (London, Continuum, 2004). On ‘Hamlet’s list’ of legal terms in the context of the private ownership of land in early modern England, see A Linklater, Owning the Earth: The Transforming History of Land Ownership (London, Bloomsbury, 2013) 34. 14  J Bate, Shakespeare and Ovid (Oxford, Clarendon Press, 1993) 84. On the tale of Tereus and ­Philomela (Bk VI, Metamorphoses) and Titus Andronicus, see P Raffield, Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (Oxford, Hart Publishing, 2010) 33, fn 77; also, Chapter 4, text to n 189, below. It is noteworthy that Titus cites the story of the centurion Verginius in Livy’s History of Rome as ‘A pattern, precedent, and lively warrant’ (5.3.43) for killing his own daughter Lavinia; see Introduction, n 16, above. On patterns and precedents in Shakespeare and the Law, see P Raffield, ‘The Dramatic Imagination and the Dream of Law’ in M Wan (ed), Reading the Legal Case: Cross-Currents Between Law and the Humanities (Abingdon, Routledge, 2012) 175–89, 175–78. 15  Part 3 (1602) of The Reports of Sir Edward Coke, Knt. In English, G Wilson (ed), 7 vols (London, Rivington, 1777) 2: ‘To the Reader’, viiia. On the mythography of the ancient world and its application to early modern common law, see Chapter 4, text to nn 26–29, below. The myth of Brutus first

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myth towards the end of the reign of Elizabeth I, but even before the establishment both of the Church of England and a sovereign legal system, English jurists were asserting the antiquity of English law (preceding in origin the authority of Roman law) and its derivation from Biblical and classical sources. Hence, in De Laudibus Legum Angliae, Fortescue stated that ‘Nor in short, are the Laws of any Kingdom in the World so venerable for their Antiquity.’16 Fortescue equated the legitimacy of English law with its immemorial origins. He located the source of its creation in the Judaeo-Christian deity, claiming that ‘Laws which are made by Men, (who for this very End and Purpose receive their Power from GOD) may also be affirmed to be made by GOD’.17 The claim to divine provenance notwithstanding, Fortescue was adamant that English law was derived simultaneously from the law of nature. He quoted approvingly from Book V of Aristotle’s Nicomachean Ethics (Fortescue referred to Aristotle throughout as ‘the Philosopher’) as authority for his claim that the law of nature was the ultimate fount of English law: ‘The Law of Nature is the same, and has the same Force all the World over’.18 Some 140 years after the publication of De Laudibus, Coke noted the influence of Aristotle over the founding fathers of early modern English law, recording in his report of Postnati. Calvin’s Case that Bracton, Fortescue and St German agreed with the Aristotelian proposition that ‘God and nature is one to all, and therefore the law of God and nature is one to all’.19 In his discussion of natural law in the same case, it is therefore not surprising that Coke should have referred approvingly to Aristotle as ‘nature’s secretary’.20 For Fortescue, Coke and other early modern jurists, it was the genealogical link with nature which ensured that municipal law remained an inherently ethical enterprise, concerned with the exposition of truth as opposed to a vacuous, rhetorical construct whose outstanding characteristics were falsehood and dissimulation.

II.  Horticulture, Transformation and the Artifice of Law The earliest and clearest indication that the artifice of English municipal law was the progeny of a natural source was given by Fortescue in De Laudibus.21 He looked

appeared in the ninth-century Historia Britonum, attributed to the Welsh monk Nennius, but is more widely known from the twelfth-century account, given by Geoffrey of Monmouth in Historia Regum Britanniae. See Geoffrey of Monmouth, The History of the Kings of Britain, L Thorpe (trans) (London, Penguin, 1966) 71–74, Pt i.15–18. 16 

J Fortescue (Sir), De Laudibus Legum Angliae, J Selden (ed) (London, R Gosling, 1737) 33–34. ibid, 5. 18  ibid, 29. 19 Coke, Postnati. Calvin’s Case, 7 Reports (1608) 4: 1a, 12b–13a. 20  ibid, 12b. 21  During the Wars of the Roses (1455–1487), Fortescue, loyal to Henry VI, accompanied the exiled Queen Margaret and her court to France, where he acted as tutor to Edward of Westminster, Prince 17 

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to the relationship between mankind and the law of nature to explain the manner in which knowledge of municipal law was assimilated. I have already noted the influence of Aristotle’s theories of justice and natural equity over Fortescue’s juristic thought; but of equal importance was the apparent influence of Ovid’s Metamorphoses, in which the Roman poet implied that human reason engaged with the natural world to enact and enable transformation. Fortescue employed a metaphor derived from horticulture to describe the means through which his young charge, the Prince of Wales, would eventually acquire full knowledge of the law: So the Cion of a Pear-Tree grafted on an Apple-Stock, after it has taken, draws the Apple so much into its Nature, that both become a Pear-Tree, and are called so from the Fruit which they produce. So, Virtue put in Practice grows into a Habit, and imparts its very Name to those who practice it … So you (my Prince) when you shall have practised Justice with Delight and Pleasure, and have, as it were, transcribed the Law, which is the Rule of Justice, into your very Habit and Disposition, will deservedly obtain the Character of a Just Prince.22

It is relevant to the theme of genealogy that Fortescue should have referred to the act of transcription, of writing down, recording for future generations the rule of justice. In this context, transcription serves as a metaphor for the incorporation of law into the royal body. The metaphor of the grafted scion provides a graphic image of natural law: that branch of eternal law, which governs the behaviour of beings possessing reason and free will.23 It is possible that Fortescue’s knowledge of the horticultural

of Wales. De Laudibus (written c 1468) is a fictionalised account of their relationship, the focus of which is the instruction in the foundations of English law and the English legal profession, given to the Prince by the Lord Chancellor. In the course of 54 short chapters, the Lord Chancellor persuades his student of the excellence of English common law, and in particular of its innate superiority to French civil law. Indeed, Chapter XXXV of De Laudibus is entitled ‘The Inconveniencies in France by Means of the Absolute Regal Government’. Prince Edward was killed at the Battle of Tewkesbury, 4 May 1471; see J Sadler, The Red Rose and the White: the Wars of the Roses 1453–1487 (Abingdon, Routledge, 2013) 199–216. On the influence of Erasmian humanism over the upbringing of Tudor and Stuart royal children, see A Pollnitz, Princely Education in Early Modern Britain (Cambridge, Cambridge University Press, 2015). 22 Fortescue, De Laudibus, 10–11. The author of an Elizabethan treatise on the horticultural technique of grafting wrote: ‘Thei graffe the Peare graffe, on other Peare stockes, and Apple, upon Apple stocke, Crabbe or Wyldyng stocke, the Quince and Medler, upon the white Thorne, but most commonly thei use to graffe one Apple upon an other, and both Peares and Quinces, thei graffe on Hawthorne and Crabbe stocke’, L Mascall, A Booke of the Arte and maner how to Plant and Graffe all sortes of Trees (London, John Wight, 1582) 19. The technique remains unchanged, as the following information provided by the Royal Horticultural Society demonstrates: ‘In a wide range of woody plants and a few herbaceous ones, a budded stem, or scion, is grafted onto a rootstock, or stock, of another species or cultivar, to achieve a composite plant with more desirable characteristics. Most apple, pear, and stone fruit trees are propagated in this way’: C Brickell (ed), The Royal Horticultural Society Encyclopedia of Gardening (London, BCA, 1992) 541. 23  The eighteenth-century judge and jurist Sir William Blackstone expressed sentiments similar to Fortescue’s on the subject of natural law: ‘This law of nature being coeval with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all

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technique of grafting derived from familiarity with the orchards on his estate in Gloucestershire.24 The metaphor of the pear-tree scion illustrates how privileged access to artificial reason transforms the recipient of such knowledge from being a stranger to the common law into a personification of ‘the Rule of Justice’. In Shakespeare’s Imaginary Constitution, I interpreted Fortescue’s ‘grafting’ metaphor to mean that the apple-stock is a representation of the uneducated prince (uneducated, that is, in the technical complexities of common law), while the scion of the pear tree stands for the artificial reason of law.25 In that interpretation, the hybridised tree (which subsequently bore fruit) was a symbol of the common law itself. Nature was moderated by art, and the prince was transformed from being an uneducated youth of noble stock into a hieroglyph of law. Coke was to describe the imagistic nature of the crown in exactly these terms: ‘a King’s crown is an hieroglyphic of the laws, where justice, &c is administered’.26 But the use of the word ‘scion’, meaning both the budded stem of a plant used in the grafting process and the descendant of an aristocratic or influential family, suggests also that Fortescue was referring here to Prince Edward himself. In this interpretation, the apple-stock is a symbol of ‘the Rule of Justice’. It is only through allowing himself to be grafted onto the rootstock of justice that the scion (Prince Edward) will enable his transformation into ‘a Just Prince’, the icon of unwritten law.27 As I suggest above, the trope of transformation was employed by Fortescue in its Ovidian sense, in order to imply a correlation between nature and art: ‘For what is once loved do’s by use transform the Person into its very Nature, according to the Philosopher, “Use becomes a second Nature.”’28 Whether or not the pun on ‘second Nature’ was intended (in the sense of a habit that has become instinctive, as well

countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original’, W Blackstone (Sir), Commentaries on the Laws of England, 4 vols (Portland, Thomas B Wait & Co, 1807) 1: Introduction (Section 2), ‘On the Nature of Laws in General’, 40–41. 24  Fortescue’s home was in the Gloucestershire village of Ebrington: Fortescue, De Laudibus, Preface, xlviii; see Raffield, Shakespeare’s Imaginary Constitution, 159–62. 25  ibid, 165; also, Raffield, ‘The Dramatic Imagination’, 183. 26 Coke, Postnati. Calvin’s Case, 7 Reports (1608) 4: 11b. The transformation of nature into art is emphasised in the Latin quotation which precedes this line: ‘corona est quasi cor ornans, cujus ornamenta sunt misericordia & justitia’ [‘The crown is as it were an adorned heart, whose ornaments are mercy and justice’], ibid. 27  The synthesis of art and nature in the service of ‘just’ kingship was a minor thematic feature of a religious artefact from the reign of Richard II, the Wilton Diptych. The right exterior panel depicts a white hart (the emblem of Richard II), lying on a bed of rosemary (the emblem of Richard’s first wife, Anne of Bohemia). The hart is tethered to the ground by a chain, which is connected to a crown, worn around the neck of the hart. The image suggests the subjection of the crown to lex terrae. See Raffield, Shakespeare’s Imaginary Constitution, 85. 28 Fortescue, De Laudibus, 10. The quotation attributed by Fortescue to ‘the Philosopher’ Aristotle is from The Nicomachean Ethics: ‘it is easier to alter one’s habits than one’s nature. In fact even habit is hard to change, because it is a sort of second nature, as Evenus says: “I tell you, friend,’ tis practice long pursued, / And this at last becomes a man’s own nature”’, Aristotle, The Nicomachean Ethics, JAK Thomson (trans) (London, Penguin, 2004) 190, Bk VII.X.1152a30.

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as meaning an imitation of nature itself), the phrase is effective in suggesting that through continuous use or practice nature is refigured mimetically as art: a ‘second Nature’. The artificial process, which enables the transfiguration to occur, is legitimised by its derivation from nature. The relationship between art and nature is a theme that I explore throughout this chapter with reference to The Winter’s Tale. I take as my starting point the dialogue between Polixenes and Perdita, concerning the legitimacy of horticultural techniques, including that of grafting (4.4.79–108). The Elizabethan era witnessed a proliferation of horticultural manuals and ­treatises, as a result of which, as Alexander Samson has noted, ‘cuttings, splicing, transplanting and grafting became loaded with metaphorical resonances of the relationship between art and nature’.29 The title page of Leonard Mascall’s A Booke of the Arte and maner how to Plant and Graffe all sortes of Trees (published in eight editions, between 1572 and 1599) includes an illustration which reinforces the metaphorical significance of the grafting technique. A gardener, grafting knife in his right hand, holds the scion in his left hand and is inserting it into the rootstock. On either side of the gardener is the trunk of a rootstock onto which a scion has been successfully grafted. The effect is strangely unrealistic, as each trunk gives the impression of being topped by a three-pronged crown (see Figure 5). In the context of the present analysis, and of the grafting metaphor employed in De Laudibus, the gardener depicted on the title page of Mascall’s horticultural manual may be interpreted as a figurative imitation of Fortescue himself, grafting a scion of the House of Lancaster onto the rootstock of common law (see Figure 6).30 The metaphor of budding scions being grafted onto existing rootstock was of particular relevance to the business of political succession as Elizabeth I approached the end of her reign, with no natural heir to the throne.31 For this reason, it is appropriate when discussing the accession of James VI of Scotland to the English throne, as James I, to incorporate the terminology of horticulture. Indeed, a graphically illustrated ‘family tree’ by an unknown artist, published in 1619, depicts a climbing rose (product of the union between the Houses of Lancaster

29  A Samson, ‘Locus amoenus: gardens and horticulture in the Renaissance’ (2011) 25 Renaissance Studies 1–23, 12. At his home in Gloucestershire, Justice Shallow invites Falstaff to ‘see my orchard, where, in an arbour, we will eat a last year’s pippin of mine own graffing’ (Henry IV, Part 2, 5.3.1–2). For the argument that Fortescue may have provided a source for Shallow and the Gloucestershire scenes in Henry IV, Part 2, as well as for the relationship between Prince Hal and variously Falstaff, King Henry IV, and the Lord Chief Justice, see Raffield, Shakespeare’s Imaginary Constitution, 159–81; also, I Ward, ‘The Image of Power: Shakespeare’s Lord Chief Justice’ in S Fiorato and J Drakakis (eds), Performing the Renaissance Body: Essays on Drama, Law, and Representation (Berlin, Walter de Gruyter, 2016) 145–56, 151–52. On Shakespeare’s use of the grafting metaphor in Cymbeline, see Chapter 4, text to nn 161–162 and 192–93, below. 30  See text to n 22, above. 31  Uncertainty over the royal succession is an underlying theme of The Winter’s Tale. Replying to the suggestion of Paulina that Leontes should not remarry, Dion warns: ‘If you would not so, / You pity not the state, nor the remembrance / Of his most sovereign name, consider little / What dangers, by his highness’ fail of issue, / May drop upon his kingdom and devour / Incertain lookers-on.’ (5.1.24–29) All references to the play are from W Shakespeare, The Winter’s Tale, J Pitcher (ed) (London, The Arden Shakespeare, 2010).

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and York, following the marriage in 1486 of Henry VII to Elizabeth of York) into which sketched portraits of the ancestors of James I have been inserted at appropriate places along the plant’s stem (see Figure 7). A hand issues forth from each of the portraits and (presumably as a representation of hand-fasting) is joined to the hand of the person to whom that branch of the family tree was married. The progenies of these unions are linked to their progenitors by a stem of the climbing rose, which emerges from the conjoined hands of the parents. The marriage of James IV of Scotland to Margaret Tudor, eldest daughter of Henry VII and Elizabeth of York (and the basis of the legitimate claim of the Stuart dynasty to the English throne, following the death of Elizabeth I) differs from the other unions depicted, insofar as a thistle has been grafted onto the rose’s rootstock. Following this graft, the stem that emanates from the hands of James IV and Margaret Tudor (linking them through their son James V and his daughter Mary Queen of Scots, to her son James VI) is a rose. There is no other instance of a thistle than in the hand of James IV. Through the grafting of the scion thistle onto the rose rootstock, the thistle has been ‘transcribed’ (in the language of Fortescue) into the ‘Habit and Disposition’ of the rose. The issue of succession, and the artificial means through which familial dynasties were sustained, is relevant not only to the lineage of royal families, but also to the development of property law in this period, especially in relation to entailed estates. Grafting techniques, such as those discussed both by Fortescue in De Laudibus and Polixenes in The Winter’s Tale, were employed in English law to ensure the maintenance and sustenance of the old rootstock. Below, I consider Plowden’s report of the case of Sharington v Strotton as a particular example of the manner in which the law of nature was artfully manipulated (and cited in court) to obtain judgment for the defendant in a dispute over the validity of a claim to beneficial interest in land. But the relationship between art and nature was of evident fascination to writers of the early modern period other than jurists such as Plowden. Michel de Montaigne, writing about the indigenous Americans of the New World in Book I of The Essays, drew attention to mankind’s inclination to pervert nature in order to satisfy effete and ‘corrupted taste’. Montaigne stated that ‘there is no reason, arte should gaine the point of honour of our great and puissant mother Nature.’ He complained that mankind’s ingenuity has ‘over-choaked hir’, while failing to produce a commodity as beautiful or appropriate as anything from the natural world, such as the bird’s nest or the spider’s web.32 Others, such as

32  M de Montaigne, ‘Of the Caniballes’ in The Essayes Or Morall, Politike and Millitarie Discourses of Michaell de Montaigne, J Florio (trans) (London, Edward Blount, 1603) 100–107, 102. The cannibals discussed by Montaigne lived on the coast of Brazil: ‘our modern Navigations have now almost discovered, that it is not an Iland, but rather firme land, and a continent, with the East Indias on one side, and the countries lying under the two Poles on the other; from which it be divided’, ibid, 101. Montaigne’s essay is more usually associated with Shakespeare’s The Tempest, and especially with the depiction of the ‘salvage and deformed slave’ Caliban, but it is highly relevant also to the discussion of art and nature in The Winter’s Tale. For discussion of ‘Of the Caniballes’ and The Tempest, see Chapter 5, text to nn 13–16, 26–28, below.

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George Puttenham, saw the application of artificial reason as the means whereby the beauty and splendour of the natural environment might be enhanced. Puttenham’s meditation on art and nature, contained in The Arte of English Poesie, laid great emphasis on the ethical use of art in conjunction with nature, for the ultimate good of the common-weal. Used in an appropriate manner, art was a ‘surmounter of her [nature’s] skill’.33 Puttenham cited the example of the gardener’s art, which acted as an ‘aide’, ‘alterer’, and ‘surmounter’ of nature. He wrote of the gardener embellishing nature, ‘in virtue, shape, odour and taste, that nature of her selfe woulde never have done: so as to make the single gillifloure, or marigold, or daisie, double’.34 This was an intervention and technique the morality of which Perdita questions in The Winter’s Tale. It is noteworthy that Puttenham should have inserted his discussion of the art of gardening into Book III of The Arte of English Poesie, entitled ‘Of Ornament’. In this category he also placed the arts of painting, carving, music and rhetoric (although it must be added that he made fine distinctions between each of these categories). Regarding the last of these, the most interesting observations of Puttenham concerned the ‘artes and methods both to speake and to perswade and also to dispute’, which he later described as the arts of grammar, logic and rhetoric. These are not the imitative arts of the painter, the carver or the gardener; but rather, skills which have recourse to pattern, precedent and memory. They provide, in Puttenham’s words, ‘a repetition or reminiscens naturall, reduced into perfection, and made prompt by use and exercise’.35 In the minds of early modern English jurists, repetition, reminiscence and reduction represented the distillation of natural custom upon which the foundations of common law rested. The imaginary genealogy of common law, which manifested itself in the various texts, symbols and rituals of the legal institution—in other words, its institutional memory—bestowed legitimacy, but it also established an indissoluble link with nature.36 I have digressed slightly from a discussion of horticulture, engaging instead with a minor discursus on rhetoric. But it is reasonable to ascribe to horticulture a rhetorical facility: the capacity to persuade an audience that the art of the gardener or husbandman was an acceptable and legitimate imitation of nature. Puttenham argued on behalf of rhetoric (which he described as ‘discourse and persuasion’) that mastery of the art signified ‘a well constitute body and minde, little lesse naturall then his very sensuall actions, saving that the one is perfited by nature at once, the other not without exercise & iteration’.37 Likewise in horticulture, the ‘body’ of nature was ‘perfited’ by the ‘minde’ of the horticulturist. As Aristotle noted of the

33 

G Puttenham, The Arte of English Poesie (London, Richard Field, 1589) 254.

34 ibid. 35 

ibid, 256. Goodrich argues that ‘The originary is invariably hieroglyphic, it exists only in the trace or vestige, the ruin of a present form’: P Goodrich, ‘Eating Law: Commons, Common Land, Common Law’ (1991) 12 The Journal of Legal History 246–67, 247. 37 Puttenham, Arte of English Poesie, 255. 36 

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imitative arts, ‘it is not the pleasantness of the object which produces the pleasure but an inference from the copy to the original and in consequence of it a kind of learning’.38 Implicit in Aristotle’s claim that all true art references a natural originary is the principle that rhetoric ‘is the means by which truth and justice maintain and assert their natural superiority to falsehood and injustice’.39 Representing something that is not present,40 the aesthetic image is the structure of authority, and it is this structure that may be said to capture the subject of law.41 It is a serious understatement to assert that the meaning of the sign was an obvious point of contention in Reformation Europe; but it needs to be said, if only as a starting point for understanding debate concerning the role of art in society, an issue of evident interest to innumerable writers of the early modern period, and especially to Shakespeare.

III.  The Nature of Law Shakespeare addressed the issue of the relationship between art and nature with particular clarity in The Winter’s Tale. Relevant to a discussion of law and its relationship to art is that Apollo, god of music, truth and poetry, should play a dominant (albeit offstage) role in determining the fate of Hermione, thereby affecting the narrative outcome of the play.42 Indeed, Apollo is both principal witness and judge in the trial of Hermione for High Treason, on the false charge of committing adultery with Leontes’ boyhood friend Polixenes and conspiring with Camillo to murder her husband. It is to the Oracle at Delos (sacred birthplace of Apollo, described in the play as ‘Delphos’) that Leontes dispatches two of his lords, in order that the guilt or innocence of his wife may be irrefutably established. Divine judgment is duly passed down: ‘Hermione is chaste; Polixenes blameless; Camillo a true subject; Leontes a jealous tyrant’ (3.2.130–33), to which the bystanders at the trial respond: ‘Now blessed be the great Apollo!’ (3.2.134). Shakespeare signals the importance of Apollo by continuous reference to the god’s absent presence: in the trial scene alone the word ‘Apollo’ occurs six times. The influence of Apollo is present throughout; the final, ‘magical’ scene of the play witnesses the confluence 38 Aristotle, The

Rhetoric, JEC Welldon (trans) (London, Macmillan, 1886) 83, Bk I.XI. ibid, ‘Analysis’, x. 40  The legal historian and psychoanalyst Pierre Legendre has engaged throughout his work with the idea that the image is ‘the trace of an absent presence’: P Legendre, Law and the Unconscious: a Legendre Reader, P Goodrich (trans), with A Pottage and A Schütz, P Goodrich (ed) (Basingstoke, Macmillan, 1997) 214. 41  Goodrich has written extensively of the emotive power of the image and its capacity to ‘hold the invisible body, the emotional body, the affective subject or soul of those subject to law’: P Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London, Weidenfeld and Nicolson, 1990) 262. 42  For a succinct introduction to Shakespeare’s use of classical, literary sources, see C Burrow, Shakespeare and Classical Antiquity (Oxford, Oxford University Press, 2013). 39 

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of art and life, of the imaginary transformed into reality, as the ‘statue’ of Hermione is seen to breathe, move, and embrace her penitent husband. In the words of Leontes: ‘If this be magic, let it be an art / Lawful as eating.’ (5.3.110–11)43 The introduction of Apollo into the trial scene is perhaps surprising, given the Christian context of the play thus far, but the intervention of the god of music, truth and poetry serves to emphasise the contrast between the harmony of the spheres or musica universalis and the discordance of Leontes’ tyrannical rule.44 In the second half of the play, we encounter a procession of pastoral images that reflect issues concerning the application of artificial reason to the natural world. During Act Four, Scene Four, a conversation, of less than 30 lines, takes place between Polixenes and Perdita in which they discuss the horticultural technique of cross-fertilisation. On being introduced to Polixenes and Camillo, Perdita presents them with sprigs of rosemary and rue. Polixenes jokes that it is appropriate, given the respective ages of Camillo and himself, that they should be given ‘flowers of winter’ (4.4.79); to which Perdita replies that the only flowers available at the present time of year—‘the year growing ancient’ (4.4.79)—were carnations and ‘streaked gillyvors’ (4.4.82). Perdita informs Polixenes that she will not take cuttings (‘slips’) from gillyflowers because they are ‘Nature’s bastards’ (4.4.83).45 The source of her knowledge regarding horticultural techniques is not stated, but presumably derives from practical experience. Perdita evidently possesses some understanding of the principles of cross-fertilisation (known in horticultural terms as inter-specific hybridisation), as she tells Polixenes that ‘I have heard it said / There is an art which, in their piedness, shares / With great creating Nature.’ (4.4.86–88) Perdita’s principal objection to the streaked gillyflower is that it is the product of mankind’s unnatural interference with nature: hence, her use of the adjective ‘streaked’, suggesting painting, and the pejorative reference to the ‘art’

43  On art, ethics, and ‘the aesthetic experience offered by Shakespeare’s play’, see JA Knapp, ‘Visual and Ethical Truth in The Winter’s Tale’ (2004) 55 Shakespeare Quarterly 253–78, 255. 44  Pliny the Elder discussed the Pythagorean theory of the music of the spheres in The Natural History: ‘But Pythagoras otherwhiles using the tearmes of musicke, calleth the space betweene the earth and the Moone a Tonus, saying, that from her to Mercurie is halfe a tone: and from him to Venus in manner the same space. But from her to the Sunne as much and halfe againe: but from the Sunne to Mars a Tonus, that is to say, as much as from the earth to the Moone. From him to Iupiter halfe a Tonus: likewise from him to Saturne halfe a Tonus and so from thence to the Signifier Sphære or Zodiake so much, and halfe again. Thus are composed seven tunes, which harmonie they cal Diapason, that is to say, the Generalitie or whole state of concent and accord, which is perfect musicke’: Pliny the Elder, The Historie of the World. Commonly called, The Naturall Historie of C. Plinius Secundus, P Holland (trans) (London, Adam Islip, 1601) 14, Bk II.XXII. Plato employed the pun on nomos (meaning both ‘tune’ and ‘law’) throughout The Laws: Plato, The Laws, TJ Saunders (trans) (London, Penguin, 2004) 156, Bk V.IX.734e; also, ibid, 513, n 1; ibid, 107–108, Bk III.V.700b. On law and the harmony of Orpheus’s lyre, see n 56, below. 45  In his horticultural manual on the technique of grafting Mascall employed an image of illegitimacy identical to that used by Perdita, to describe uncultivated fruit trees that would act as hosts for the grafted scions: ‘For the Bastarde or little wilde Trees incontinent’. Mascall provides instructions on ‘How to dung your Bastarde or wilde yong trees whiche come of Pepins [Pippins]’, Mascall, how to Plant and Graffe, 3.

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which creates their ‘pied’ colours. She equates art of this kind with falsehood, and is resolute in her defiance of Polixenes that she will ‘not put / The dibble in earth to set one slip of them’ (4.4.99–100).46 The response of Polixenes to Perdita’s rejection of art is noteworthy in the context of this chapter for its recollection of Fortescue’s advice to Prince Edward on the acquisition of legal knowledge, and specifically his use of the ‘grafting’ metaphor: Yet Nature is made better by no mean But Nature makes that mean. So, over that art, Which you say adds to Nature, is an art That Nature makes. You see, sweet maid, we marry A gentler scion to the wildest stock, And make conceive a bark of baser kind By bud of nobler race. This is an art Which does mend Nature—change it rather—but The art itself is Nature. (4.4.89–97)

In other words, the art of grafting derives from nature itself and is therefore a legitimate purpose to which human reason may be put. Of course, it is a great irony that Polixenes should be appalled (as he later shows himself to be) at the prospect of his son, the ‘gentler scion’ Florizel, marrying ‘the wildest stock’, as he wrongly believes Perdita to be. Grafting was an ancient horticultural technique: in his Natural History (published in an English translation by Philemon Holland in 1601), Pliny the Elder recorded that Virgil had noted ‘the devise of graffing strange fruits … the Arbute tree graffed upon Nut-trees, the Plane upon Apple trees, and the Elme upon Cherrie stockes.’ Pliny expressed some misgivings about the benefits of grafting, and questioned its legitimacy by implying a level of divine retribution for mankind’s interference with ordo naturae: ‘for looke how many sorts of trees are thus engraffed contrarie to nature, so many kinds of lightnings and thunderbolts by report, are flashed and shot at once.’47 The Natural History of Pliny the Elder was

46  Tayler argues that Perdita’s innate modesty and her social discomfort at being dressed in ‘borrowed flaunts’ (4.4.23), as Queen of the sheep-shearing feast (wrongly believing herself to be the daughter of a lowly shepherd), ‘has culminated in her final identification of Art with deceit, with false imitation, with “painted” womanhood—a kind of Art morally and otherwise inferior to Nature’: EW Tayler, Nature and Art in Renaissance Literature (New York, Columbia University Press, 1964) 136. In his treatise on gardening, Thomas Hill gave instructions on raising ‘streaked’ gilliflowers from seed: ‘to make them beare sondrye coloures on one stalke, you must firste take the seedes of the redde Gelliflower, the seedes of the carnatione, & the seedes of the white gelliflower: all these seedes myngled together in good earth: And then take a swannes quil, and let it be open at both endes, then make an hole in the earth, and set in the quil coveringe it with earth. And after sette a marke by it, that you may know it at the commyng up’; T Hill, A Most Briefe and pleasaunte treatise, teaching how to dresse, sowe, and set a garden (London, John Day, 1558) sig. E.iii.r. Hill also had the following advice for the propagation of gillyflowers through the taking of cuttings: ‘in the end of harvest you may breke slippes fro the roote, and set them in a half tobbe, the earth therein made fat with rotten donge’, ibid, sig. D.iii.r. 47  Pliny the Elder, The Naturall Historie, 439, Bk XV.XV.

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written between 77 and 79 AD, but the publication of Holland’s translation in 1601 undoubtedly reflected a measure of contemporary thought on the issue of horticultural techniques, which sought to improve upon nature. The use by Shakespeare of technical terms derived from horticulture (slips, scions, dibbles, graffing), in The Winter’s Tale and other of his plays, reflects burgeoning public interest in and knowledge of gardening skills.48 It is beyond the scope of this chapter to consider in depth the underlying economic, social and political factors, which facilitated the means whereby unprecedented numbers of people were able to cultivate private land in late sixteenth and early seventeenth-century England. Despite this, it is worth noting the influence of changing patterns of land ownership and land management, combined with developments in natural science, which led to the idea of cultivation for the purposes of profit and pleasure.49 My principal interest here is in establishing a symbolic correlation between law and horticulture, both of which disciplines require the application of art to nature in order to produce an image (that is to say, something ‘artful’) of nature itself.50 The application of human reason to ordo naturae was shared by the arts of law and gardening, and was consonant also with the Ciceronian principle: ‘True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting’ [‘Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, constans, sempiterna].51 The Elizabethan pun on the word ‘poesie’, meaning

48  On ‘grafting’, in Henry IV, Part 2 and Cymbeline, see n 29, above. On Montaigne and the beauty of natural phenomena, untainted by the ‘corrupted taste’ of man, see text to n 32, above. Note also the description by Puttenham of horticulture as the ‘surmounter’ of nature: text to nn 33–34, above. This forms part of a wider discussion in Book III of The Arte of English Poesie, entitled ‘Of Ornament’: ‘where arte ought to appeare, and where not, and when the naturall is more commendable than the artificiall in any humane action or workmanship’, Puttenham, Arte of English Poesie, 253. 49  Samson notes the intersection of horticulture with some ‘defining social transformations of the early modern period; from shifting patterns of land use to evolving political discourses of magnificence and power, new scientific ideas about the natural world, botany and medicinal writing, religious changes and aesthetics’: Samson, ‘Locus amoenus’, 1. He notes also that landowners of this period managed their estates more closely due to decreases both in rent and costs of labour, ibid, 2–3. Thirsk argues that rises in food prices in the sixteenth century encouraged landowners to grow their own produce, both for their own households and for selling in a rising market. She also makes the important observation that advances in printing technology facilitated the mass publication of classical works on husbandry: J Thirsk, ‘Making a Fresh Start: Sixteenth-Century Agriculture and the Classical Inspiration’ in M Leslie and T Raylor (eds), Culture and Cultivation in Early Modern England: Writing the Land (Leicester, Leicester University Press, 1992) 15–34, 18. See also, A McRae, ‘Husbandry Manuals and the Language of Agrarian Improvement’ in ibid, 35–62. On the proliferation of gardening books in the sixteenth century, with especial reference to George Gascoigne’s A Hundreth sundrie Flowres bounde up in one small Poesie (published anonymously in 1573, and in 1575 under the title The Posies of George Gascoigne), see SC Staub, ‘Dissembling his art: Gascoigne’s Gardnings’ (2011) 25 Renaissance Studies 95–110. 50  White makes the useful observation that ‘If some theorists have derived Natural Law purely from human reason, some from reason and conscience, others have come to the same point through observations of nature in its material sense’: RS White, Natural Law in English Renaissance Literature (Cambridge, Cambridge University Press, 1996) 9. 51  MT Cicero, ‘The Republic’ in De Re Publica, De Legibus, CW Keyes (trans) (Cambridge, Mass, Harvard University Press, 1928) 211, Bk III.XXII.33.

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both poetry and a garland of flowers, provides a helpful, semantic link between the garden and the law.52 As we have seen, Puttenham discussed the art of g­ ardening at some length in The Arte of English Poesie. On the penultimate page of Book III (‘Of Ornament’), he compared the art of the poet to that of the gardener: ‘he [the poet] doth as the cunning gardiner that using nature as a coadiutor, furders her conclusions & many times makes her effectes more absolute and straunge.’53 Above all, for Puttenham, the poet (like the gardener) is a ‘maker’. Indeed, Chapter I of Book I, entitled ‘Of Poets and Poesie’, begins with the sentence: ‘A Poet is as much to say as a maker.’54 The word ‘maker’ recurs in Chapter III of Book I, where Puttenham observed that poets were ‘the first lawmakers to the people’.55 Puttenham reminds the reader that western law originated in the mythography of ancient Greece, where law was recorded not as statute, but as a work of art.56 Law was ‘made’ in the image of nature. If the poet was the archetypal maker, then (for Puttenham) God was the prototype of the poet: ‘Such as (by way of resemblance and reverently) we may say of God: who without any travell [travail] to his divine imagination, made all the world of nought’.57 Sir Francis Bacon stated unequivocally in the first sentence of his essay ‘Of Gardens’, published in 1625, that ‘God Almighty first planted a Garden.’58 The association of gardens with divinity is traceable to the pre-Christian, classical era. Pliny noted that ‘Trees were the very temples of the gods’. The devotion accorded trees was such that worshippers regarded them more reverently even than ‘the stately images of the gods within our temples, (made though they be of glittering gold, and beautifull yvorie)’.59 Nature itself was of greater binding authority than the

52  ‘In titling his work A Hundreth Sundrie Flowres (with its echo of Tusser’s popular A Hundreth pointes of good Husbandrie) and later revising it as The Posies (with its pun on poesy/posy, poetry/­ flowers), Gascoigne is playing with the literal meaning of the word “anthology” … the word derives from the Greek phrase for “flower collection”’: Staub, ‘Dissembling his art’, 100. 53 Puttenham, Arte of English Poesie, 257. 54  ibid, 1. 55  ibid, 5. 56  See Horace, Ars Poetica, on the myths of Orpheus and Amphion: ‘Poets the first Instructers of Mankind, / Brought all things to their proper, native Use; / Some they appropriated to the Gods, / And some to publick, some to private ends: Promiscuous love by marriage was restrain’d / Cities were built, and usefull Laws were made’, Horace’s Art of Poetry made English by the Right Honourable the Earl of Roscommon (London, H Herringman, 1680) 23. On Orpheus and the origins of law, see also Chapter 1, n 132, above. 57 Puttenham, Arte of English Poesie, 1. 58  ‘Of Gardens’ in F Bacon, The Major Works, B Vickers (ed) (Oxford, Oxford University Press, 2002) 430–35, 430. Bacon notes the presence in April of ‘the stock-gilliflower’; while in July, there were ‘gilliflowers of all varieties’. For their perfume, he recommends ‘pinks and gilliflowers, specially the matted pink and clove gilliflower’, ibid, 431. ‘Gilliflower’ is a generic word: it includes wallflowers (Erysimum), and pinks or carnations, of the genus Dianthus, of which the ‘clove gilliflower’ (Dianthus caryophyllus) is an example. Hill noted that ‘The gyllofloure or carnation’ was named by ‘the Italyons, Cariophillon, which is a swete spice like to Cloaves’: Hill, how to dresse, sowe, and set a garden, sig. D.iii.r. The ‘stockgilliflower’ is commonly known as stock (Matthiola incana). 59 Pliny, Historie of the World, 357, Bk XII.i. Hersey notes that ‘Trees, rocks, mountains, and other natural objects contained divinities and were the objects or vessels of religious sacrifice’: G Hersey, The Lost Meaning of Classical Architecture: Speculations on Ornament from Vitruvius to Venturi (Cambridge,

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artful image of nature. In the classical and Judaeo-Christian traditions, the creation of gardens was an attempt to represent respectively the trace of an original encounter between rational humankind and the natural world, and reparation or restoration of the fall of Adam through projection of an image, artfully conceived, of Eden. For the ancients, this involved construction of an imagined Golden Age, as described by Ovid in Book I of Metamorphoses: ‘when men of their own accord, without threat of punishment, without laws, maintained good faith and did what was right.’60 In the context of early modern England and Bacon’s statement about the creation by God of the first garden, this artfully contrived space was a symbol of innocence, of a time before the fall of man, described by Samson as ‘a prelapsarian Eden’.61 Hence, for Bacon, the garden was ‘the purest of human pleasures.’62 As AD Nuttall has noted of the sheep-shearing scene in The Winter’s Tale, the prototypical pastoral is the Garden of Eden; but he notes also that ‘the society proper to pastoral is egalitarian’.63 This principle is articulated (although not acted upon) by Perdita, commenting on the difference in social status between herself and Polixenes: ‘The selfsame sun that shines upon his court / Hides not his visage from our cottage, but / Looks on alike.’ (4.4.449–51) The difference in status between king and subject is a societal distinction, unrecognised by nature. The theme of an unspoilt time before the Fall is emphasised near the start of the play, when Polixenes reminisces on his prepubescent friendship with Leontes. The two boys were ‘as twinned lambs’ (1.2.67), frisking in the sun, bleating at each other, and exchanging ‘innocence for innocence’ (1.2.69). This affecting idyll is immediately followed by the misogynistic intimation of Polixenes that women were responsible for the death of innocence in the two kings.64 Only a few lines later,

Mass, MIT Press, 1988) 11. See also, W Burkert, Homo necans: The Anthropology of Ancient Greek Sacrificial Ritual and Myth, P Bing (trans) (Berkeley, University of California Press, 1983). 60 Ovid, Metamorphoses, MM

Innes (trans) (Harmondsworth, Penguin, 1955) 31, Bk I. Samson, ‘Locus amoenus’, 6. Bacon, ‘Of Gardens’, 430. In New Atlantis, published in 1627, Bacon refers specifically to the ‘art’ of gardening, with especial emphasis on the transformative effect of horticultural techniques: ‘In these we practise likewise all conclusions of grafting and inoculating as well of wild-trees as fruit trees, which produceth many effects. And we make (by art) in the same orchards and gardens, trees and flowers to come earlier or later than their seasons; and to come up and bear more speedily than by their natural course they do. We make them also by art greater much than their nature; and their fruit greater and sweeter and of differing taste, smell, colour, and figure, from their nature’; F Bacon, New Atlantis in Major Works, 457–89, 482. 63  AD Nuttall, Shakespeare the Thinker (New Haven, Yale University Press, 2007) 351. The Edenic pastoral is thrown into sharp, realistic relief by the entrance of the wolfish Autolycus—‘a snapper-up of unconsidered trifles’ (4.3.25–26)—immediately prior to the sheep-shearing scene. On the sheepshearing scene, utopianism and the egalitarian myth in pastoral, see P Jensen, ‘Singing Psalms to Hornpipes: Festivity, Iconoclasm, and Catholicism in The Winter’s Tale’ (2004) 55 Shakespeare Quarterly 279–306. Jensen makes the important observation that in this scene ‘festivity here is also self-conscious and not without irony’: ibid, 296; earlier, she reminds the reader that ‘all representation … instead of replicating, introduces discrepancy between a model and its copy’; ibid, 292. 64  Enterline argues that this moment, in which innocence is transformed into guilt, ‘defines the entire time of the play as the fallen time of sexuality’: L Enterline, The Rhetoric of the Body from Ovid to Shakespeare (Cambridge, Cambridge University Press, 2000) 215. 61 

62 

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the irrational jealousy of Leontes, who wrongly supposes Hermione to be engaging in an adulterous relationship with Polixenes, signals an Ovidian transformation from the Golden Age—‘a season of everlasting spring’—to the Age of Iron, in which ‘modesty, truth and loyalty fled. Treachery and trickery took their place’.65 A similar sense of pastoral idealism and egalitarianism informs much of the dialogue concerning the cultivation of English land and the living conditions of English subjects in Fortescue’s De Laudibus. There is a striking resemblance between the Arcadian idyll imagined by Fortescue and the Golden Age of Ovid’s Metamorphoses. In the latter, ‘The earth itself, without compulsion, untouched by the hoe, unfurrowed by any share, produced all things spontaneously, and men were content with foods that grew without cultivation’;66 while in De Laudibus, ‘England is a Country so fertile, that, comparing it Acre for Acre, it gives place to no One other Country: It almost produces Things spontaneous, without Man’s Labour or Toil.’67 Indeed, according to Fortescue, uncultivated land in England was often more fruitful and profitable than ‘those which are manured and tilled.’68 As a consequence of this natural beneficence, English subjects ‘hath all Things which conduce to make Life Easy and Happy.’ These ‘Things’ include gold, silver, food, drink, clothing, household goods and (more generally) ‘the Fruits of the Earth’.69 This is in stark contrast to the French peasantry, who (as a consequence, Fortescue argues, of the iniquitous system of taxation in France) ‘live in great Hardship and Misery’, drinking only water, eating no meat (apart from offal), and wearing ‘Frocks, or little short Jerkins made of Canvass no better than common Sackcloth’.70 The Arcadian landscape painted by Fortescue is a vision of an ideal, monarchical republic.71 Its polity is identical to that of the English res publica, described by

65 Ovid, Metamorphoses

32, Bk I. ibid, 33, Bk I. De Laudibus, 61. It is ironic that Fortescue should have invoked an English ‘Golden Age’, given his earlier choice of metaphor to describe the artificial ‘transcription’ of law: ‘the Cion of a Pear-Tree grafted on an Apple-Stock’, ibid, 10–11; see text to n 22, above. 68 Fortescue, De Laudibus, 61: past tense ‘manured’ is from the Middle English verb ‘manouren’, meaning to cultivate by manual labour. 69  ibid, 83. There is a notable thematic and stylistic resemblance between Fortescue’s idyll of England and the opening paragraph of The History of the Kings of Britain: ‘It [Britain] abounds in every kind of mineral. It has broad fields and hillsides which are suitable for the most intensive farming and which, because of the richness of the soil, all kinds of crops are grown in their seasons’, Geoffrey of Monmouth, History of the Kings of Britain, 53, Pt i.2. 70 Fortescue, De Laudibus, 80–81. Fortescue provides no authority for his extravagant claims regarding the French peasantry; Selden notes of ‘Frocks’: ‘Collabium, Tunica demissior sine manicis, A short coat without Sleeves, used by the old Romans’, ibid, 80, fn (i). 71  Collinson employed the term ‘monarchical republic’ to encapsulate the idea of the ‘traditions of localised self-government’ in early modern England and the centrality of these traditions to the quotidian governance of the Elizabethan state: P Collinson, ‘The Monarchical Republic of Queen Elizabeth I’ in Elizabethans (London, Hambledon and London, 2003) 31–58, 33; see also, JF McDiarmid (ed), The Monarchical Republic of Early Modern England: Essays in Response to Patrick Collinson (Aldershot, Ashgate, 2007). Regarding the autonomous ‘republics’ of the early modern Inns of Court, see P Raffield, 66 

67 Fortescue,

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Sir Thomas Smith (a hundred years after De Laudibus) in De Republica Anglorum (written in 1565, but not published until 1583). Smith’s English Republic had a king at its head but its body was made up ‘of a multitude of free men collected together and united by common accord and covenauntes among themselves’.72 One hundred years earlier, Fortescue had expressed a similar political sentiment, stating that ‘the Kingdom of England’ existed under ‘a mixt Kind of Government, compounded of the Regal and Political’,73 implicit in which was a level of popular assent. Like his successors in the fields of jurisprudence and political philosophy— Sir Thomas More, Erasmus, and Sir Thomas Smith—Fortescue was a citizen of what Patrick Collinson has described as ‘an invisible republic of letters’, expressing ‘quasi-republican’ political ideas within established constitutional boundaries.74 Ideas concerning egalitarianism and the form of the ideal republic were central thematic features of Sir Thomas More’s Utopia, not least in his discussion of the gardens of the Utopian subjects. These do not form part of country estates, but are a characteristic of urban dwellings. The Utopian citizens of Amaurote lived in terraced houses: ‘a longe rowe throughe the hole streate without anye partition or separacion.’ Behind all of the houses ‘lye large gardeynes whyche be closed in rounde about with the backe parte of the stretes.’ The system under which land was distributed and the use of property regulated was very different in Mores’s Utopia than it was under English law. In Utopia, there was no private ownership of land. People were free to enter property at any time, ‘for there is nothynge within the howses that ys private, or annye mannes owne. And everye .x. yeare they chaunge their howses by lotte.’75 Lack of private ownership notwithstanding, Utopian residents of urban dwellings carefully maintained and cultivated their

‘The Monarchical Republic, Constitutionality, and the Legal Profession’ in L Hutson (ed), The Oxford Handbook to English Law and Literature, 1550–1700 (Oxford, Oxford ­University Press) forthcoming. 72  T Smith (Sir), De Republica Anglorum, M Dewar (ed) (Cambridge, Cambridge University Press, 1982) 57, Bk I.10. 73 Fortescue, De Laudibus, 23–24. Fortescue expanded this argument in De Dominio Regali et Politico. There, he refers to ‘dominium politicum et regale’, under which a ‘king may not rule his people by other laws than such as they assent to and therefore he may set upon them no impositions without their own assent’: J Fortescue (Sir), ‘The Governance of England’ in On the Laws and Governance of England, S Lockwood (ed) (Cambridge, Cambridge University Press, 1997) 83. On Fortescue’s De Dominio and the theory of the king’s two bodies, see Chapter 2, text to nn 146–47, above; on De Dominio and tyranny, see Chapter 2, text to nn 175–80, above. 74  P Collinson, ‘De Republica Anglorum: Or, History with the Politics Put Back’ in Elizabethans, 1–29, 18. 75  T More (Sir), A fruteful and pleasaunt worke of the beste state of a publique weale, and of the new yle called Utopia, R Robinson (trans) (London, Abraham Vele, 1551) sig. H.iii.r, H.iii.v. The idea of common ownership of property in the best interests of civic unity was proposed by Plato in The Republic: ‘since they have no private property except their own persons (everything else being common), won’t litigation virtually disappear? There won’t in fact be any of the quarrels which are caused by having money or children or family’, Plato, The Republic, D Lee (trans) (London, Penguin, 1987) 190, Bk V.464.d–e.

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individual back-garden plots: ‘In them they have vyneyardes, all manner of frute, herbes and flowers, so pleisaunte, so well furnished, and so finely kepte’.76 Whilst the abolition of private ownership of land was never seriously contemplated in the sixteenth-century English state, Samson has noted a ‘popularizing aim’ behind the gardening manuals that were published in England during this period.77 The first of these was A Most Briefe and pleasaunte treatise, teaching how to dresse, sowe, and set a garden, by Thomas Hill, published in 1558. In the preface to this work, Hill stated that ‘we wil first speake of the setting and placinge of Gardens in the village, subburbes, or in the Citie’.78 Whether or not this statement demonstrates ‘a democratizing impulse’ is arguable,79 but it is suggestive of both a communitarian inclination (reflected in More’s Utopia) and a burgeoning commonwealth, made up of private landowners (none of whom was of noble or aristocratic lineage) who sought to attain the utilitarian end of self-sufficiency, while taking pleasure in the aesthetics of a well-cultivated garden.80 The illustrations which adorn gardening manuals of this period reveal that the typical urban and suburban garden, as described by Hill, was modest in size, square or rectangular in shape, and surrounded by a hedge. The illustration on the title page of Hill’s A Most Briefe and Pleasaunte treatise locates the garden within a natural landscape, the well-manicured hedge that defines the garden serving the purpose of excluding nature from the artificial realm within (see Figure 8). A noticeable trend throughout the Elizabethan period was the increasing reliance in garden design on complex geometric patterns, notably the knot garden and the maze. These figure extensively in the anonymous The Orchard, and the Garden, published in 1594 (see Figures 9 and 10).81 Hill noted that mazes were appropriate only for those ‘having the roume in their garden’,82 implying that they were not suitable for the majority of urban and suburban gardeners for whom his book was intended, when it was published in 1558. Both the knot garden and the maze reflect an artificial order, in which man not only controls nature, but dominates it through the extreme application of reason.83 If it is accepted that the loops and twists of the knots are ligaments, linking 76 More, Utopia, sig. H.iii.v. 77 

Samson, ‘Locus amoenus’, 3. to dresse, sowe, and set a garden, sig. A.iii.v. 79  Samson, ‘Locus amoenus’, 3. 80  ‘As greater numbers of the gentry became landowners, the idea of land as private property meant that land might be used for personal economic gain and/or for individual pleasure’: Staub, ‘Dissembling his art’, 100. 81  The Orchard contains the following advice for preventing deer from damaging fruit trees: ‘That the Deares spoyle them not. Take the pisse of a Deare and anoint the Tree therewith’, Anon, The Orchard, and the Garden: Containing Certaine necessarie, secret, and ordinarie knowledges in Grafting and Gardening (London, Adam Islip, 1594) 6. On the metaphorical resonance of grafting, the following passage is noteworthy: ‘The imping [grafting] sprouts must be yong and new with great bodies, and many eies: for where many and great buddes be, that is a token, that is of a strong fruit’, ibid, 7. 82 Hill, how to dresse, sowe, and set a garden, sig. B.v.r. 83  ‘Knot gardens, formal terraces and walkways symbolized through geometry, the ability to shape and control of nature’: Samson, ‘Locus amoenus’, 5. 78 Hill, how

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the disparate parts of the garden to make a unified whole, then we may plausibly draw a parallel between the order of the knot garden and the order of early modern law. The Orchard refers to the ‘Maner or Order to Set the thread or line upon another maner of knot’ and provides ‘A Direction to Fasten Your cords or lines, to draw a knot’.84 As the Italian jurist Giambattista Vico observed in La ­Scienza Nuova (published in 1725), the words for law derive from those for tendons or cords.85 In commenting on Vico’s magnum opus (published in 1725), George Hersey notes that Vico developed tropes of the word corda, meaning variously tendons, sinews, lyre strings and musical chords, all of which implied (quoting Vico) ‘the union of the cords and powers of the fathers, whence derived public powers’.86 In a more tangible sense, the construction of ornate private gardens, enclosed by hedged screens or barriers, was a symbol too of the rejection of interference by unauthorised bodies with the enjoyment of real property. The garden was an integral part of the home, and as Coke stated in Semayne’s Case (heard in the court of King’s Bench in 1605): ‘the house of every one is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose’.87

IV.  Inheritance, Gender and the Common Law Tradition The themes of ownership, exclusion and defence against violence are enacted in the case of Sharington v Strotton, heard in King’s Bench between 1565 and 1566. The primary interest of this case to the present analysis is the apparent ease with which counsel for the defendant persuaded the court that the natural phenomenon of brotherly love was sufficient consideration to raise a use (trust) in the land under dispute, thereby grafting an entailed interest in the estate onto a different branch of the defendant’s family (his brother, his brother’s wife and their male heirs). The plaintiff (Henry Sharington) brought an action for trespass against the defendant (Thomas Strotton and others), claiming that the defendant

84 Anon, The Orchard, 32, 43 (emphases added). Baker notes that the Latin word curia, meaning ‘court’, originally conveyed the structural sense of ‘a lord’s house or, perhaps more strictly, the courtyard around which it was built.’ Of even greater interest to the present discussion is that ‘The French and English word “court”, found in the twelfth century, was not derived from curia but from cohors (acc. cohortem), in its classical sense of a garden (cf hortus) or yard’: ‘The Changing Concept of a Court’ in JH Baker, The Legal Profession and the Common Law: Historical Essays (London, The Hambledon Press, 1986) 153–70, 155. 85 In De Laudibus, Fortescue described law as a ‘ligament’, binding the different members of the body politic into a unified whole: Fortescue, De Laudibus, 22; on the anatomical imagery of ligaments and ligatures, see Chapter 4, n 12, below; also, Chapter 4, text to nn 143–45, below. 86  Quoted in Hersey, Lost Meaning of Classical Architecture, 5. 87 Coke, Semayne’s Case, 5 Reports (1605) 3: 91a, 91b; ‘for a mans house is his castle, & domus sua cuique est tutissimum refugium [‘the house is his safest refuge’]; for where shall a man be safe, if it be not in his house?’, Coke, Third Part of the Institutes, 162.

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had ­unlawfully entered, ‘with force and arms’ (vi et armis), 30 acres of woodland (Haselond Wood) belonging to the plaintiff and had subsequently ‘cut down, and 200 cart-loads of the wood aforesaid to the value of 40l. took and carried away’.88 The plaintiff alleged also that damage to the value of 100 marks had been caused to his land in the course of the trespass. The 30 acres of woodland in question formed part of the manor of Bremble [Bremhill], near Chippenham, Wiltshire. The legal owner of the manor, Andrew Baynton (for whom the defendant worked as a servant), ‘was seized in his demesn as of fee [simple].’89 Andrew Baynton lacked an heir and therefore, anxious that his land should ‘descend to the heirs male of his body lawfully begotten’,90 he created a trust (in 1560), under the terms of which he would enjoy the property during the rest of his natural life. After his death, the land would pass to his brother Edward Baynton and Edward’s wife Agnes in fee tail. After their deaths, the land would pass ‘to the use’ of any heirs male of Andrew Boynton (by his wife Frances Lee), who were not yet born at the date on which the covenant was drawn up, ‘and for default of such issue male of the body of the said Andrew, to the use of the heirs males of the said Edward Baynton’. If Edward had no heirs male, the land would descend ‘to the use’ of another brother, Henry and his heirs male. If Henry had no sons, it would descend to a younger half-brother of Andrew and Edward, also called Henry, and his heirs male.91 The intention of Andrew Baynton was that through this elaborate juridical construct, the land would descend through the male line alone and remain in the Baynton family in perpetuity. This was the usual practice in a system of inheritance that was predicated on a patrimonial model. The complicating factor in this instance was the prior existence, so the plaintiff alleged, of a deed of demise (a contract for the exclusive possession and profit of land for a determinate period) that granted him a life interest in the 30 acres of woodland on the Baynton estate, known as Haselond Wood. Andrew died on 21 February 1564, with no male heirs, whereupon Edward and Agnes entered the manor of Bremble ‘and were thereof seized’.92 On 20 March 1564, Thomas Strotton and others entered Haselond Wood, cut down trees, and carted away timber to the value of 40 pounds. The legitimacy of this action was

88 Plowden, Sharington 89 ibid. 90 ibid.

v Strotton, Commentaries, 1: 298.

91  The importance of Thomas Littleton’s Tenures to property law of this period cannot be overestimated. Baker suggests that the manuscript of Coke’s Commentary upon Littleton ‘has all the appearance of having been Coke’s constant companion in his legal studies’: ‘Coke’s Note-Books and the Sources of his Reports’ in Baker, Legal Profession, 177–204, 180. On Coke’s First Part of the Institutes and Littleton, see Chapter 4, text to n 157, below. Littleton specified the usual mode of inheritance where the owner of land in fee simple died without issue: ‘And in such case where the son purchaseth land in fee simple, & dieth without issue, they of his bloud on the fathers side shal inheryte as heyre unto hym. before any of the bloud of the mothers side. But if he have none heyre on the fathers syde, than shall the land discend unto his heire on the mothers side’, T Littleton, Littleton Tenures in Englishe (London, Richard Tottle, 1556) sig. A.ii.v. 92 Plowden, Sharington v Strotton, Commentaries, 1: 299.

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contingent upon the court recognising that a trust had been created by Andrew Baynton in favour of his brother Edward, and it is a notable feature of the trial that throughout its proceedings arguments on both sides revolved around the issue of transformation or metamorphosis. At common law, a trust might have been raised if Andrew Baynton had parted with possession of his land during his lifetime in favour of a beneficiary; that is to say that there was physical evidence of an intention to create a trust, by virtue of which (in the words of Plowden) the land has undergone ‘transmutation of the possession’.93 Andrew had not parted with possession during his lifetime, and in the absence of any such ‘transmutation’, the validity of the trust depended upon whether it was evidenced by ‘good and sufficient consideration to make the possession be to the use of onother, which shall be upon a contract, or upon a covenant, or grant on consideration.’94 Counsel for the plaintiff (Sergeants Fleetwood and Wray) argued that the consideration evidenced was not sufficient to raise a ‘use’: the mere desire that land should descend to heirs male and remain in the name of Baynton was ‘but a demonstration of his [Andrew Baynton’s] mind … no more is the brotherly love and favour which he bore to Edward Baynton’. Therefore, according to the plaintiff, the covenant between Andrew and Edward was ‘a nude and barren contract, ex et nudo pacto non oritur actio’. The meaning of ‘sufficient consideration’ lay at the heart of the case. Were the natural phenomenon of brotherly love and the natural desire to keep land in the name of Baynton going to be recognised as ‘sufficient’ consideration? The issue of nature thus became a central juridical issue; but it was nature moderated by art. Might ‘consideration’ ever be anything other than the invention of lawyers? Or did it imply, beyond the level of the merely technical, a notion of human understanding and relationship which transcended the juridical, placing it irrevocably in the imaginary realm of the metaphysical and the semiotic? Fleetwood and Wray argued convincingly that any consideration evinced was ‘insufficient’ and ‘past’: ‘Wherefore no new thing is here done or caused by the one side’.95 One of several oddities concerning Sharington v Strotton is that Edmund Plowden not only reported the case, but also acted as counsel for the defendant (alongside Thomas Bromley). In the report, Plowden described himself as ‘an apprentice of the middle temple’.96 Baker argues that Plowden’s ‘eloquence won the day’ for the defendant while simultaneously sowing the seeds of doubt, which led in 1588 to rejection by the courts of ‘love and affection’ as evidence of sufficient consideration.97 As I have 93 

ibid, 303. ibid, 301. 95  ibid, 302. 96  ibid, 301. Thomas Bromley became Lord Chancellor in March 1579. As Sir Thomas Bromley he presided over the trial of Mary Queen of Scots, at Fotheringhay Castle, in 1586; see Chapter 2, text to n 118, above. 97  ‘By 1588, at any rate, the courts had ruled out “love and affection” as consideration for an assumpsit, apparently for the reasons advanced on the losing side in 1565’: ‘Origins of the “Doctrine” of Consideration, 1535–1585’ in Baker, Legal Profession, 369–92, 377. The case of 1588 to which Baker refers is Harford v Gardiner (1588), 2 Leo 30, 74 Eng Rep, 332. 94 

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indicated above, the trust created by Andrew Baynton may be likened to the horticultural technique of grafting, whereby a close relative is artificially merged with the original rootstock, and the resultant cultivar is the product of controlled, genetic fusion. Indeed, the arguments presented by counsel for the defendant placed great emphasis on the imposition of human reason upon ordo naturae. In his argument, Plowden discoursed at length on the subject of procreation and ‘the laws of nature’, at one point appearing to allude to the technique of grafting: ‘And this point of nature has another point of nature joined with it, and that is, when the thing itself is begotten, to nourish it.’98 It is a notable coincidence that there is a strong echo of Plowden’s thesis on nature and procreation, both stylistically and thematically, in the claim of Polixenes that ‘Nature is made better by no mean / But Nature makes that mean.’ (4.4.89–90) Similarly, there is a correlation between the argument of Plowden that ‘the appetite of procreation is not without its end and design, which is, to bring to perfection the thing begotten’,99 and Polixenes’ insistence that by marrying ‘A gentler scion to the wildest stock’, we ‘make conceive a bark of baser kind / By bud of nobler race.’ (4.4.93–95) Plowden was rehearsing the argument (with which all early modern jurists were familiar) that common law was the municipal embodiment of natural law, and that the founders of ­English law were ‘searching after the law of nature’. Never does he recall more clearly for the reader the idea that art is ordained by nature (because it is a creation of nature itself), than in his declaration (again, oddly redolent of Polixenes’ line: ‘But Nature makes that mean’) that ‘there is nothing ordained in our law contrary to nature, or the law of God, but our law is agreeable to them all’; and later, that ‘the founders of our law did not make laws to countenance things against nature, which are monstrous and seldom happen, but to license things which are consistent with nature and often happen’.100 Plowden successfully argued that the brotherly love, which existed between Andrew and Edward, was of itself sufficient consideration to raise a trust in favour of Edward, because it was ‘a consideration proceeding from nature’. The argument made by Plowden in favour of a law that derived from nature proceeded not only by reference to brotherly love, but also by emphasising the crucial importance of ensuring that land belonging to Andrew descended only through the male line of the Baynton family, and that all necessary steps were taken ‘to exclude all females from inheriting the land’. Throughout the case for the defence, there was a strong undercurrent of misogyny, which burst into full flood when Plowden declared that ‘God has divided rational creatures into two sexes, male and female, the male is the superior, the female the inferior … men are for the greatest part more reasonable than women’. Given the presence of a female monarch on the English throne at the time of Sharington v Strotton, there is a peculiar irony in the several references

98 Plowden, Sharington 99 

ibid, 303. 100  ibid, 304, 306.

v Strotton, Commentaries, 1: 303.

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made by Plowden to the innate incapacity of females; in particular, regarding the capacity of women to govern: For to govern and direct is more suitable to the capacity of the male than of the female … And as a woman is not as fit to govern in things of a higher nature as a man is, so is she not as fit to govern in things of a lower nature …101

For obvious reasons, female governance was the subject of political debate and polemic during the reigns of Mary I and Elizabeth I. In 1558, prior to the death of Mary I, John Knox had written and published The First Blast of the Trumpet Against the Monstrous Regiment of Women. Described as a classic of misogyny, Knox railed therein against the perceived idolatry of rule by a woman: And no lesse monstrous is the bodie of that comonwelth, where a woman beareth empire. For ether doth it lack a laufull heade (as in very dede it doth) or els there is an idol exalted in place of the true head.102

John Aylmer (who, following his exile in Switzerland, returned to England immediately after the accession of Elizabeth I) responded to the misogynist rant of Knox in An Harborowe for faithful Subiectes, in which he robustly defended the principle of female succession to the crown and strongly rebutted the arguments of Knox. It is noteworthy of An Harborowe that Aylmer defended female monarchy not solely on the grounds of the right of the regnant Queen to succeed, but rather because ‘it is not she that ruleth but the lawes, the executors whereof be her iudges, appointed bi her, her iustices of peace and such other officers’.103 The constitutional settlement described by Aylmer is a mixed polity, along the lines envisaged by Fortescue. Aylmer termed these constituent parts ‘Monarchie’, ‘Oligarchie’ (the nobility), and ‘Democratie’ (the gentry), ‘wherein ech one of these have or shoulde have like authoritie.’104 Of far greater resonance than the triangular demarcation of power above, as sketched by Aylmer, is his statement that the realm is governed not by the Queen, but by the laws, and executed by the judiciary and other officers of the legal institution.105 In Sharington v Strotton, it appears that (Plowden’s undisputed eloquence notwithstanding) irrational fear of women informed the arguments of counsel.

101 Plowden, Sharington

v Strotton, Commentaries, 1: 305. J Knox, The First Blast of the Trumpet Against the Monstrous regiment of Women (Geneva, J Poullain and A Rebul, 1558) sig. D3.v. Knox, a Calvinist, was also motivated by anti-Catholicism in addressing this diatribe against Mary. See RM Kingdon, ‘Calvinism and Resistance Theory, 1550–1580’ in JH Burns (ed), The Cambridge History of Political Thought 1450–1700 (Cambridge, Cambridge University Press, 1991) 193–218. On Knox and the accession of Elizabeth I, see A Hunt, The Drama of Coronation: Medieval Ceremony in Early Modern England (Cambridge, Cambridge University Press, 2008) 147–150; also, J Guy, ‘Tudor Monarchy and its Critiques’ in The Tudor Monarchy, J Guy (ed) (London: Arnold, 1997) 78–109, 93–94. 103  J Aylmer, An Harborowe for Faithfull and Trewe Subiectes, against the late blowne Blaste, concerninge the Government of Wemen (Strasborowe, 1559) sig. H.3.v. 104  ibid, sig. H.3.r. 105  Concerning the reference by Aylmer to justices of the peace, it is worth noting the observation of Gleason that ‘The justices of the peace symbolize the polity of England’: J Howes Gleason, The Justices 102 

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The sense of irrationality was compounded when Plowden admitted that the mere thought of female succession engendered in all men natural feelings of ‘uneasiness and discontent.’106 The judges were unanimous in their support of Plowden’s arguments that brotherly love and the desirability of succession exclusively by heirs male were evidence of sufficient consideration. In Trinity term, 1566, Catlyn, CJ gave judgment for the defendant: The affection of the said Andrew for the provision of the heirs males which he should beget, and his desire that the land should continue in the blood and name of Baynton, and the brotherly love which he bore to his brothers, are sufficient consideration to raise the uses in the land.107

‘Uneasiness and discontent’ at the prospect of any challenge to the patrimonial system of inheritance in particular and to institutionalised masculine hegemony in general was reflected in the masques and dramas presented during the Candlemas revels at the Elizabethan and Jacobean Inns of Court. The Tragedy of Ferrex and Porrex (better known as Gorboduc) was performed by members of the Inner Temple at the Inn and subsequently at the Palace of Whitehall in January 1562, in the presence of the Queen. The issue of lawful succession and its crucial importance to the order of the state is a central theme of the play. Videna (Queen and mother of the eponymous princes), plays a central role in reacting irrationally to the chaos that ensues, following the ill-advised decision of Gorboduc to dispense with the conventional law of inheritance. King Gorboduc divided his realme in his life time to his sonnes, Ferrex and Porrex. The sonnes fell to discention. The yonger killed the elder. The mother that more dearely loved the elder, for revenge killed the yonger. The people moved with the crueltie of the fact, rose in rebellion and slew both father and mother … And afterwardes for want of issue of the prince whereby the succession of the crowne became uncertaine, they fell to civil warre.108

In ‘The Misfortunes of Arthur’, presented as part of Certaine Devises and shewes, and performed at Greenwich before the Queen in February 1588, Queen

of the Peace in England, 1558–1640: A Later Eirenarcha (Oxford, Clarendon Press, 1969) 1; see also the expansive but broadly accurate claim made for JPs by GM Trevelyan, that they were ‘of the utmost significance for the future of our constitution and our law’, GM Trevelyan, English Social History: A Survey of Six Centuries from Chaucer to Queen Victoria (London, Longman’s, Green & Co, 1942) 171. 106 Plowden, Sharington

v Strotton, Commentaries, 1: 305. ibid, 309. 108  ‘The Argument of the Tragedie’ in T Norton and T Sackville, The Tragidie of Ferrex and Porrex (London, Iohn Daye, 1570) sig. A.i.v. For discussion of the political and constitutional significance of Gorboduc, see Raffield, ‘The Monarchical Republic’. In his analysis of Gorboduc, Graves argues that ‘The political purpose of the drama is confirmed, not only by the occasion and venues of its only two English performances, but also by its theme and content’: MAR Graves, Thomas Norton: The Parliament Man (Oxford, Blackwell, 1994) 92. See also, H James and G Walker, ‘The Politics of Gorboduc’ (1995) 110 The English Historical Review 109–121. Gorboduc provided Shakespeare with one of the sources for King Lear; for the argument that Gorboduc ‘was probably a source for Titus Andronicus’, see D Callaghan and CR Kyle, ‘The Wilde Side of Justice in Early Modern England and Titus Andronicus’ in C Jordan and K Cunningham (eds), The Law in Shakespeare (Basingstoke, Palgrave Macmillan, 2007) 38–57, 41. 107 

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­ uinevere was portrayed as an adulteress, consumed by sexual desire for her stepG son Mordred: ‘Desire to joy him still, torments my mynde.’ The image of Guinevere is one of transgression and excess, a threat to the order of law. ‘Eschew it farre: such love impugnes the lawes’,109 enjoins a lady-in-waiting, Fronia. The theatrical representation of women reached its misogynistic nadir in the masques presented by the Inns during the reign of James I, who often attended in person.110 In these entertainments, which were renowned for their visual extravagance, authors resorted to myth, caricature and cliché, in order to present women both as inversions of the natural order and exceptions to law. Hence, in Circe and Ulysses, The Inner Temple Masque (1615), by William Browne, the personification of natural law, Ulysses, was opposed by the unnatural forces of the eponymous sorceress and the sirens, the latter being depicted here as harpies: mythical and monstrous hybrids of women and birds.111 In the anti-masque which preceded The Inner Temple Masque. Or Masque of Heroes (1619), by Thomas Middleton, the depths of scatological humour were plumbed, as characters (all played by members of the Inn) exchanged insults with each other, such as this line of Plumpudding’s: ‘thy Stomack’s full of Farts, as if they had lost their way, and thou made with the wrong end upward, like a Dutch Mawe, that discharges still into’th Mouth!’112 Relevant to

109  T Hughes, ‘The Misfortunes of Arthur’ in Certaine Devises and shewes presented to her Maiestie by the Gentlemen of Grayes-Inne at her Highnesse Court in Greenwich (London, Robert Robinson, 1587 [1588]) 5. 110  See for example The Maske of Flowers, presented by members of Gray’s Inn in the Banqueting House, Whitehall, on Twelfth Night, 1614, in honour of the marriage (on 26 December 1613) between Robert Carr, Earl of Somerset, and Lady Frances Howard, daughter of Thomas Howard, Earl of Suffolk: ‘The Maske ended, it pleased his Maiestie to call for the Anticke-Maske of Song and Daunce, which was againe presented; and then the Maskers uncovered their faces, and came up to the State, and kissed the King, and Queene, and Princes hand, with a great deale of grace and favour, and so were invited to the Banquet’, IG, WD, TB, The Maske of Flowers. Presented by the Gentlemen of Graies Inne, at the Court of Whitehall, in the Banquetting House, upon Twelfe night 1613 [1614] (London, Robert Wilson, 1614) sig. C4.r. See also, G Chapman, The Memorable Maske of the two Honorable Houses or Inns of Court; the Middle Temple, and Lyncolns Inne. As it was performed before the King, at White-hall, on Shrove Munday at night; being the 15. of February 1613 (London, George Norton, 1613). For discussion of the depiction of Amerindian culture in these masques, see Chapter 5, text to nn 170–212, below. 111  The setting of Circe and Ulysses in Inner Temple Hall is described as follows: ‘At one side the hall, towards the lower end, was discovered a cliffe of the sea, done over in part white, accordinge to that of Virgill, lib. 5 … Upon it were seated two Syrens, as they are described by Hyginus and Servius, with their upper parts like women to the navell, and the rest like a hen’: W Browne, ‘The Inner Temple Masque’ in The Works of William Browne, 3 vols (London, T Davies, 1772) 3: sig. K2.r. In the context of the Jacobean court masque, the decision to portray the sirens as harpies was contentious as, during this period, the harpy symbolised the rapacity and ambition of court favourites. In Minerva Britanna, beneath an engraving of a harpy, ‘Of Virgins face, with winges, and tallants strong’, Peacham noted that ‘The Courtes of Kinges, are said to keepe a crew / Of these still hungry for their private gaine’: H Peacham, Minerva Britanna Or A Garden of Heroical Devises (London, W Dight, 1612) 115. In The Aeneid, Virgil described harpies as ‘flying things / With young girls’ faces, but foul ooze below, / Talons for hands, pale famished nightmare mouths’: Virgil, The Aeneid, R Fitzgerald (trans) (London, Alfred A Knopf, 1992) 73, Bk III.225 et seq. 112  T Middleton, The Inner Temple Masque. Or Masque of Heroes (London, John Browne, 1619) sig. A3.v.

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the present discussion of lawful inheritance is that the anti-masque included the reading of a mock will: ‘The last WILL and TESTAMENT of KERSMAS, Irrevocable’. Here, the tendency toward misogynistic humour was given full rein. The eldest son, ‘Noddie’, inherited ‘possession of all my Lands, Mannors, Mannor-houses’; while the two daughters, ‘Tickle mee quickly’ and ‘my Ladies Hole’ were given ‘free leave to shift for themselves, either in Court, City, or Country’. Their old aunt, ‘my Sow h’as Pigd’, was left ‘a Litter of Curtizans to breede up for Shrove-tide’.113 Shakespeare explored the related themes of institutionalised misogyny and the objectification of women more thoroughly in The Winter’s Tale than in any other of his plays. The reappearance of Hermione in the final scene as a living ‘statue’ has as its primary source the tale of Pygmalion in Book X of Ovid’s Metamorphoses. There, the statue carved by Pygmalion was the object of his lust. He kissed it, caressed it, laid it on a couch and called it his bedfellow, before finally the gods brought it to life in order that he should satisfy his sexual desire for the statue.114 In The Winter’s Tale, the entire scene has been staged by Paulina as a prelude to reconciliation between Leontes and his wife (final propitiation being conditional upon Leontes and Hermione finding what was lost), whom Leontes has mistakenly believed dead for the past sixteen years. Unlike in Ovid’s tale, Hermione is not a statue come to life. Where the original story of Pygmalion may reasonably be said to represent the triumph of art over nature, the exact reverse applies in the case of Hermione’s appearance as a statue. The likeness to Hermione is greater than anything even the supposed carver of the statue, ‘that rare Italian master, Julio Romano’ (5.2.94–95) might have created, because it is Hermione herself rather than an effigy of Leontes’ queen. This difference between the two stories notwithstanding, Lynn Enterline has made the expansive claim that Jacobean audiences ‘were well aware of the sexual and misogynist aspects of the story [of Pygmalion] that are omitted in order to achieve closure in The Winter’s Tale’.115 113  ibid, sig. B.v. For detailed discussion of the above masques and dramas at the Inns of Court, see P Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge, Cambridge University Press, 2004) 124–56. Shakespeare incorporated elements of the Stuart court masques into several of his later plays (notably the masque of Ceres, Iris and Juno in The Tempest (4.1.60–138); the descent of Diana ‘from the heavens’ in Pericles (SD 21.224); and the descent of Jupiter ‘in thunder and lightning, sitting upon an eagle’ in Cymbeline (SD 5.3.156)). On the political symbolism of Jupiter in Cymbeline, see Chapter 4, text to nn 177–187, below. In The Winter’s Tale, the dance of the satyrs replicates an earlier version, which had been performed on New Year’s Day 1611 in Ben Jonson’s court masque, The Masque of Oberon. A servant in The Winter’s Tale alludes to the performance of Jonson’s masque, which had been performed in front of James I: ‘One three of them, by their own report, sir, hath danced before the king’ (4.4.342–43). Pitcher argues that the same professional dancers, who performed the dance of the satyrs in Oberon, were hired by the King’s Men to perform their dance in The Winter’s Tale: see Pitcher (ed) The Winter’s Tale, 394–95. Satyrs featured in the antimasque, which preceded the main masque of The Maske of Flowers: Silenus entered ‘upon an artificiall Asse … attended by a Satyre’, IG, WD, TB, The Maske of Flowers, sig. B3.r. 114  Enterline notes that in Measure for Measure, the reference by Lucio to ‘Pygmalion’s images’ (3.2.43) is synonymous with ‘prostitute’; ‘exactly recalling the reason for Pygmalion’s creative act’: Enterline, Rhetoric of the Body, 205. 115  ibid, 205–206; there is no authority provided by Enterline for the claim that Jacobean audiences were ‘well aware’ of these aspects of the story.

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Public denigration and denunciation for alleged marital infidelity had prefaced the downfall of two English queens in the sixteenth century, Anne Boleyn and Katherine Howard.116 The main difference between the allegations made against these queens and the charge of adultery against Hermione in The Winter’s Tale is that in Sicilia Leontes is told that he is wrong, and the virtue of the Queen is upheld in the strongest possible terms. For example, to the slanderous imputation made by Leontes that Hermione is ‘a hobby-horse’ who ‘deserves a name / As rank as any flax-wench’ (1.2.24–75), Camillo responds: ‘I would not be a stander-by to hear / My sovereign mistress clouded so without / My present vengeance taken.’ (1.2.279–81) Elizabeth I was publicly accused of fornication by anti-Protestant propagandists and polemicists, such as William Allen, the Cardinal of England in exile. Writing in 1588, Allen elaborated on rumours that alleged a sexual relationship between the Queen and Robert Dudley, Earl of Leicester. According to Allen, the Queen ‘exalted’ Leicester ‘only to serve her filthy luste’; while Leicester had ‘caused his owne wife cruelly to be murthered’.117 Allen further alleged that Elizabeth was a serial fornicator and that Leicester was one only of several lovers: ‘With the forsaid person and divers others she hathe abused her bodie’ (a marginal note on this page reads: ‘Her dishonest lyfe’).118 At around the time that Shakespeare wrote The Winter’s Tale, the issue of female governance remained a prominent topic of juristic debate.119 The influence both of Jean Bodin’s Les Six Livres de la République and the French interpretation of Salic law were evident in Selden’s The Reverse or Back-Face of the English Janus, written in 1610.120 Linking Bodin with those authors who were ‘propped up with

116  On proof of betrayal in the law courts and the theatre, with particular reference to Katherine Howard and Cymbeline, see K Cunningham, ‘Female Fidelities on Trial: Proof in the Howard Attainder and Cymbeline’ (1994) New Series XXV Renaissance Drama 1–31. On events leading to the execution of Anne Boleyn, see RM Warnicke, ‘Sexual Heresy at the Court of Henry VIII’ (1987) 30 The ­Historical Journal 247–68; also, E Ives, The Life and Death of Anne Boleyn (Oxford, Blackwell, 2004) 289–64. 117  W Allen, An Admonition to the Nobility and People of England and Ireland Concerninge the Present Warres Made for the Execution of his Holines Sentence, by the highe and mightie Kinge Catholike of Spaine (Antwerp, A Coninncx, 1588) sig. B.v. 118  ibid, B2.r. Kaplan and Eggert note of the above defamatory remarks made by Allen: ‘The illegitimacy of her birth and of her capacity to rule merge in this diatribe, which imagines Elizabeth’s nymphomania transforming her realm into an effeminate “cuntry”’, M Lindsay Kaplan and K Eggert, ‘“Good queen, my lord, good queen”: Sexual Slander and the Trials of Female Authority in The Winter’s Tale’ (1994) New Series XXV Renaissance Drama 89–118, 95. The obscene pun on ‘cuntry’ was probably intended by Allen: ‘how shamefully she hath defiled and infamed her person and cuntry’, Allen, An Admonition, sig. B2.r. 119  A performance of The Winter’s Tale at the Globe on 15 May 1611 was noted in his ‘Book of Plays’, by the scholar and scientist Simon Forman. Ben Jonson’s The Masque of Oberon, from which Shakespeare took the Dance of the Satyrs, was performed on 1 January 1611, but Shakespeare probably inserted this terpsichorean interlude having already written most of The Winter’s Tale. For the convincing argument that Shakespeare wrote The Winter’s Tale towards the end of 1610, see Pitcher (ed), The Winter’s Tale, 84–90. 120  Lex Salica was a legal code, written during the reign of Clovis I (King of the Salian Franks between 481 and 509, and King of all the Franks from 509 until his death in 511). Under the rule of

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the Salick Law (as they call it)’, Selden quoted from Book VI of la République (­published in French in 1576 and translated into Latin by Bodin himself in 1586, as De Republica Libri Sex): The Government of women (’tis Bodin of Anjou says it) is contrary to the Laws of Nature, which hath bestowed upon men discretion, strength of body, courage and greatness of Spirit, with the power of Rule, and hath taken these things from women.121

Selden was defiant in his rejection of the argument that women were unfit to govern by virtue of their gender, arguing that ‘Antiquity holds this Sex to be equally divine as the Male.’122 He offered as example the recently deceased Queen: Reader, thou canst not here chuse but think of our late Soveraign of Ever Blessed Memory, the Darling of Britain, Q. ELIZABETH, nor canst thou, whosoever thou art, but acknowledge, ‘That there was not wanting to a Woman (what Malmesbury writes of Sexburga the Queen Dowager of Cenwalch King of the West Saxons) a great Spirit to discharge the duties of the Kingdom; she levied new Armies, kept the old ones to duty; she governed her Subjects with Clemency, kept her Enemies quiet with threats; and in a word, did every thing at that rate, that there was no other difference betwixt her and any King in management, but her Sex.’123

The theatrical portrayal of women as transgressors and exceptions to law, in all of the Inns’ of Court masques and dramas discussed above, was a crude device; but it was undoubtedly popular in the exclusively male environs of the Inns. The depiction of women in The Winter’s Tale could not contrast more starkly. The innocence of Perdita, the candour of Paulina, and the stoicism of Hermione, provide striking dramatic counterpoints to the tyranny and insane jealousy of Leontes (flaws shared by Polixenes, demonstrated when he threatens to hang the Shepherd, torture Perdita, and bar his own son Florizel from the royal succession, upon discovering that Perdita and Florizel intend to wed). Leontes lays great emphasis on the absolute power of his words: ‘I have said / She’s an adulteress, I have said with whom.’ (2.1.87–88) Anybody who speaks in defence of Hermione ‘is afar off guilty, / But that he speaks!’ (2.1.104–105) He spurns the advice of his wise and loyal counsellors, invoking the royal prerogative as authority for his intransigence:

agnatic succession in Salic law, females were excluded from inheriting the throne. Royal succession was determined exclusively through the male line. If a regnant monarch had no male heirs, then he would be succeeded by the nearest male relative in the male line. In Shakespeare’s Henry V, the Archbishop of Canterbury argues that the French were upholding the Salic law only to bar the just claim of Henry V to the French throne, even though there was a lack of jurisdiction, because the Salic law was German, not French: ‘the land Salic is in Germany, / Between the floods of Saarle and of Elbe’ (1.2.44–45). See K Fischer Drew, The Laws of the Salian Franks (Philadelphia, University of Pennsylvania Press, 1991); C Taylor, ‘The Salic Law, French Queenship and the Defense of Women in the Late Middle Ages’ (2006) 29 French Historical Studies 543–64. 121  J Selden, The Reverse or Back-Face of the English Janus, R Westcot (trans) (London, Thomas ­Bassett & Richard Chiswell, 1682) 19. 122  ibid, 18. 123  ibid, 19–20.

Figure 1:  Francis Herring, Mischeefes mysterie: or, Treasons master-peece, the Powder-plot (1617) title page.

Figure 2:  Sir Henry Goodyere, The Mirrour of Maiestie: or, the Badges of Honour Conceitedly Emblazoned: with Emblems Annexed, Poetically Unfolded (1618) 62–63.

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Figure 3:  The trial of Mary Queen of Scots (1586).

Figure 4:  Van Buchell’s copy of de Witt’s Sketch of the Swan Playhouse, London (1596).

Figure 5:  Leonard Mascall, A Booke of the Arte and maner how to Plant and Graffe all sortes of Trees (1582) title page.

Figure 6:  Sir John Fortescue, De Laudibus Legum Angliae (1737 edn) immediately before title page. The Lord Chancellor and Prince Edward.

Figure 7:  ‘The Roiail Progenei of our Most Sacred King James’ (1619). Unknown artist.

Figure 8:  Thomas Hill, A Most Briefe and pleasaunte treatise, teaching how to dresse, sowe, and set a garden (1558) title page.

Figure 9: Anonymous, The Orchard, and the Garden: Containing Certaine necessarie, secret, and ordinarie knowledges in Grafting and Gardening (1594) 32. ‘The Maner or Order to Set the thread or line upon another maner of knot’.

Figure 10: Anonymous, The Orchard, and the Garden: Containing Certaine necessarie, secret, and ordinarie knowledges in Grafting and Gardening (1594) 49. ‘A Mase’.

Figure 11:  Sir Edward Coke, The first part of the Institutes of the laws of England. Or, A commentarie upon Littelton, not the name of a lawyer onely, but of the law it selfe (1628) 19–20. ‘Gradus Parentelæ & Consanguinitatis’.

Figure 12:  Richard Hackluyt (trans), ‘The True Pictures and Fashions of the People in that Parte of America Now Called Virginia’ in Thomas Hariot, A briefe and true report of the new found land of Virginia (1590). Plate 2. ‘The Arrival of the Englishemen in Virginia’.

Figure 13:  Richard Hackluyt (trans), ‘The True Pictures and Fashions of the People in that Parte of America Now Called Virginia’ in Thomas Hariot, A briefe and true report of the new found land of Virginia (1590). Plate 21. ‘Ther Idol Kiwasa’.

Figure 14:  Late medieval court of King’s Bench, c 1450–60.

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Figure 15:  Portrait of Richard II, wood panel painting (c 1395). Unknown artist.

Figure 16:  Queen Elizabeth I, ‘The Coronation portrait’ (c 1600). Unknown artist.

Figure 17:  Queen Elizabeth I, ‘Elizabeth I and the Three Goddesses’ (c 1590). Attributed to Isaac Oliver.

Figure 18:  Queen Elizabeth I, ‘The Ditchley Portrait’ (c 1592). Marcus Gheeraerts the Younger.

Figure 19:  Composite image: Portrait of Richard II, wood panel painting (c 1395). Unknown artist; Queen Elizabeth I, ‘The Coronation portrait’ (c 1600). Unknown artist.

Figure 20:  Richard II presented to the Virgin and Child by his Patron Saint John the Baptist and Saints Edward and Edmund. ‘The Wilton Diptych’ (c 1395–99). Unknown artist.

Figure 21: John Speed, The Theatre of the Empire of Great Britaine (1611) 137–38. Map of ‘The Kingdome of Irland’.

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‘Our prerogative / Calls not your counsels’ (2.1.163–64) and ‘We need no more of your advice.’ (2.1.168) He is lex loquens: a living, speaking, acting law.124 The speaking law of Leontes is finally silenced by the intervention of a woman. Hermione faints when she hears of the sudden death of her son Mamillius. She is carried from the courtroom, whereupon Paulina returns to inform Leontes that Hermione is dead. She rails at great length against his tyranny, which has caused (she claims) the death of his wife, the Queen: ‘Thy tyranny, / Together working with thy jealousies’ (3.2.176–77). The mythical poet Orpheus casts a long shadow over the entire play. He was the poet whom Apollo loved and it is Orpheus who tells the story of Pygmalion in Book X of Metamorphoses. I have noted above the significance of Orpheus calming the wild beasts with the music of his lyre, acting as metaphor for the moment at which the civilising influence of law was introduced into society.125 The harmony of Orpheus’s lyre is in marked contrast to the discord of his violent death at the hands of the women of Ciconia. Their ‘clamorous shouting, Phrygian flutes with curving horns, tambourines, the beating of breasts, and Bacchic howlings, drowned the music of the lyre.’126 They did not hear the voice of the poet as they stoned him and then tore his body apart. The sweet voice of Orpheus was silenced.127 Her persistent clamour notwithstanding, Paulina is the voice of reason, effectively articulating rational opposition to the irrational governance of Leontes. His rule by prerogative, unchallengeable because spoken by him, falters and eventually collapses in the face of Paulina’s unrelenting resistance. ‘I have deserved / All tongues to talk their bitterest’ (3.2.212–13), confesses Leontes on hearing from Paulina of Hermione’s death, and on being accused by her of tyranny. There are strong parallels here with the increasingly vocal opposition to the prerogative rule of James I, most notably from Coke in his role as Chief Justice of the Common Pleas. It was probably not coincidental that reaffirmation of the Bractonian principle lex facit legem, in the leading cases of Sir Anthony Roper’s Case and Nicholas Fuller’s Case, should have occurred in the same year (1607) that James I declared in a speech to both Houses of Parliament: ‘for you all know, that Rex est lex loquens’.128

124  These sentiments were expressed by Sir Robert Berkeley, one of the judges at the trial in 1637 of John Hampden, for refusal to pay ship money: ‘I never read nor heard that Lex was Rex, but it is common and most true that Rex is Lex, for he is Lex loquens, a living, a speaking, an acting law’, quoted in SR Gardiner, History of England From the Accession of James I to the Outbreak of the Civil War, 1603–1642, 10 vols (Cambridge, Cambridge University Press, 2011) 8: 278. On lex loquens, see Chapter 2, text to nn 12, 30, above; Chapter 4, text to n 185, below. 125  On Orpheus, the music of the lyre, and the mythical foundations of western law, see Chapter 1, n 132, above; also, n 56, above. 126 Ovid, Metamorphoses 246, Bk XI. 127  Enterline describes Paulina in The Winter’s Tale as ‘A domestic version of the Bacchic horde’ who deprives Leontes of his ‘linguistic control of the world’: Rhetoric of the Body, 210. 128  JP Sommerville (ed), King James VI and I: Political Writings (Cambridge, Cambridge University Press, 1994) 161. For discussion of Sir Anthony Roper’s Case, Nicholas Fuller’s Case, and other examples of institutional opposition to Jacobean prerogative rule, see Chapter 4, text to nn 98–121, below.

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V.  The Arts of Portraiture and Politics In Book X of The Laws, Plato insisted that lawmakers ‘should defend law itself and art as either part of nature or existing by reason of some no less powerful agency— being in fact, to tell the truth, creations of reason’.129 The consonance of the above Platonic injunction with the argument of Polixenes that the ‘art itself is Nature’ is conspicuous. Following the discussion between Polixenes and Perdita on the licitness or permissibility of art—the ‘art / That nature makes’ (4.4.91–92)—the figuration of art as nature (and nature as art) is given literal representation by Shakespeare in the living ‘statue’ of Hermione. The ‘art’ here is performance rather than sculpture, because Hermione is playing the part of a statue. This is ‘an art / Lawful as eating’ (5.3.110–11) because it is art in conformity with nature. Taking as its inspiration the unspeaking eloquence of Hermione, ‘standing like a statue’ (5.3.20), the final section of this chapter explores the indivisibility of law and nature through the medium of fine art, with particular reference to the figurative art of late medieval and early modern royal portraiture. My interest lies in exploring the manner in which a royal portrait was able to speak to its audience about the political position of the monarch, within the tripartite constitutional settlement of crown, church and commonwealth. The theme of tyranny that permeates The Winter’s Tale persists in this section, but I refer here to an actual rather than a fictional king, whose reign Shakespeare dramatised with a considerable degree of licence. Richard II is not Leontes, but the reigns of both monarchs are characterised by excessive reliance on the ambiguous authority of prerogative rule, demonstrating thereby a palpable and catastrophic flaw in the exercise of kingship. ‘I am Richard II, know ye not that?’130 On 4 August 1601, Elizabeth I was supposed to have asked this question of William Lambarde, the antiquary, lawyer, and newly appointed Keeper of the Records. The unidentified author of ‘Queen Elizabeth and Richard II’, who signs himself ‘FL’, notes that the manuscript in which the conversation between Lambarde and the Queen is recorded was originally published in John Nichols’ Bibliotheca Topographica Brittanica, number 42, in the 1780s.131 Although an eighteenth-century copy of the manuscript is in

129 Plato, The

Laws, 376, Bk X.890d; see also, Tayler, Nature and Art, 135–36. in EK Chambers, William Shakespeare: A Study of Facts and Problems, 2 vols (Oxford, Oxford University Press, 1930) 2:326–27; also, in FL, ‘Queen Elizabeth and Richard II’ (1913) 7 Notes and Queries, 6–7. 131  ibid, 6. Lambarde was a Bencher of Lincoln’s Inn, a Justice of the Peace in Kent, and the author of several works of juridical importance, including: Eirenarcha: or of The office of the Iustices of the peace (1582); The Dueties of Constables, Borsholders, Tythingmen, and such other lowe and Lay Ministers of the Peace (1602); and Archeion, Or, A Discourse Upon the High Courts of Iustice in England (completed in 1591, but not published until 1635). It is noteworthy in relation to discussion of Richard II that in Archeion, Lambarde stated that ‘the Prince of this Realme is the immediate minister of Iustice under God’, and later in the same book that ‘hee is within his owne Kingdome the Vice-roy of God (the supreme Iudge of the World)’: W Lambard, Archeion, Or, A Discourse Upon the High Courts of Iustice in England (London, Henry Seile, 1635) 68, 97. 130  Quoted

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the possession of the British Library,132 the location of an original manuscript remains unknown; that it ever existed has not been proved. On the reverse of the manuscript, which supposedly recorded the conversation between Lambarde and the Queen, is the following acknowledgement: ‘This was given me by Mr Thomas Godfrey 26 November 1650. He marryed Mr Lambard daughter or grandchild.’ FL states that ‘This Thomas Godfrey, who was the father of Sir Edmundberry Godfrey, married as his first wife Margaret, the only daughter of William Lambarde.’133 Margaret presumably came into possession of the document after her father’s death on 19 August 1601, only two weeks after his meeting with the Queen. If such a conversation took place on 4 August between Elizabeth I and Lambarde, then it is reasonable to presume that the manuscript is an accurate transcript. Lambarde was renowned throughout his long life for honesty and trustworthiness: Elizabeth herself referred to him as ‘good and honest Lambarde’.134 It is sometimes erroneously suggested that the comparison made by the Queen between herself and Richard II was a reference to Shakespeare’s Richard II and its commissioned performance at the Globe Playhouse on 7 February 1601, on the eve of the Essex Rising.135 There are comparisons to be made between Shakespeare’s Richard and Elizabeth I: the play portrays an absolutist and heirless monarch, who isolated himself within a coterie of favourites and advisers; but we should be wary of linking too closely with Shakespeare’s play the comparison made by Elizabeth between herself and Richard II. The connection has been made because of the dialogue between Lambarde and the Queen concerning the Earl of Essex, which followed her initial question: ‘I am Richard II, know ye not that?’ Lambarde supposedly replied: ‘Such a wicked imagination was determined and attempted by a most unkind gent[leman], the most adorned creature that ever your Majestie made.’ To which the Queen responded: ‘He that will forget God, will also forget his benefactors; this tragedy was played 40 times in open streets and houses.’136 In the context of a conversation on the subject of Richard II, it is unsurprising that allusion should have been made to the Essex Rising, which had taken place only six months before the reported conversation between Elizabeth I and 132  BL MS Add 15664, ff 226.r–227.r. Hammer expresses some scepticism about the authenticity of the supposed conversation, suggesting that ‘The whole exchange may well be a mid-seventeenthcentury fabrication’: PEJ Hammer, ‘Shakespeare’s Richard II, the Play of 7 February 1601, and the Essex Rising’ (2008) 59 Shakespeare Quarterly 1–35, 23–24, fn 70. 133  FL, ‘Queen Elizabeth and Richard II’, 6–7. 134  Quoted in M McKisack, Medieval History in the Tudor Age (Oxford, Clarendon Press, 1971) 82. 135  For a convincing interpretation of this performance and its relationship (or rather, lack of) to the Essex Rising of 8 February 1601, see Hammer, ‘Shakespeare’s Richard II’; also, J Bate, Soul of the Age: the Life, Mind and World of William Shakespeare (London, Penguin, 2008) 249–86. Worden argues that the play performed on 7 February was not Shakespeare’s Richard II but a dramatised version of Sir John Hayward’s The First Part of the Life and Reign of King Henry IV: B Worden, ‘Which Play Was Performed at the Globe Theatre on 7 February 1601?’ (10 July 2003) 25(13) London Review of Books 22–24. Hammer strongly disagrees with the argument that the play performed at the Globe was an adaption of Hayward’s book, or indeed that such a play existed: Hammer, ‘Shakespeare’s Richard II’, 20–22. See also, Raffield, Shakespeare’s Imaginary Constitution, 86–87. 136  FL, ‘Queen Elizabeth and Richard II’, 6.

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­ ambarde. Paul EJ Hammer has convincingly argued that Lambarde and the L Queen were referring not to the performance of Shakespeare’s Richard II on 7 February 1601, but rather ‘to the official interpretation of the Essex Rising in which Essex was portrayed as aspiring to the crown and in which the Queen herself was cast as being at risk of suffering the same fate as Richard II.’137 Of interest to the present study is the fact that the conversation between Lambarde and the Queen concerned royal portraiture. Lambarde was granted an audience at Greenwich Palace in his capacity as Keeper of the Records, there to present the Queen with an inventory of archives held in the Tower of London. Lambarde records that the Queen asked him whether he ‘had seen any true picture, or lively representation of his [Richard II’s] countenance and person.’ Following Lambarde’s reply that he had seen ‘None but such as be in common hands’, the Queen informed him that ‘The Lord Lumley, a lover of antiquities, discovered it fastened on the back-side of a door of a base room; which he presented unto me, praying, with my good leave, that I might put it in order with the ancestors and successors; I will command Tho. Kneavet, keeper of my house and gallery at Westminster, to shew it unto thee.’138 It is uncertain to which painting of Richard II the Queen was referring during her conversation with Lambarde, although it has been suggested that the portrait under discussion was the most famous of any associated with the reign of the Plantagenet king: the ‘Coronation’ portrait of Richard II, which at some point during the Reformation had been removed from its original location in Westminster Abbey.139 Despite a frustrating lack of definitive evidence regarding identification of the painting that was discovered ‘on the back-side of a door of a base room’, the remainder of this chapter is concerned with examining similarities between the reigns of Elizabeth I and Richard II, as expressed through royal portraiture. I make especial reference to two paintings, similar in style and theme: the ‘Coronation’ portraits of Richard II and Elizabeth I. I am concerned here with exploring the iconography and semiotics of kingship in figurative art, through which we may

137 

Hammer, ‘Shakespeare’s Richard II’, 24. ‘Queen Elizabeth and Richard II’, 6–7. Thomas Knyvett was Keeper of Whitehall Palace at this time. In 1580, John, first Baron Lumley, inherited Nonsuch Palace in Surrey from his father-inlaw, Henry FitzAlan, 19th Earl of Arundel. In 1592, he remitted possession of Nonsuch to Elizabeth I, but stayed on as Keeper of the Palace. Presumably, it was ‘a door of a base room’ at Nonsuch, to which the Queen referred in the above conversation; in which case, by August 1601 the painting had been moved to Whitehall Palace. Roy Strong claims that Lumley owned ‘the largest portrait collection in Elizabethan England’: R Strong, English Icon: Elizabethan and Jacobean Portraiture (London, Routledge & Kegan Paul, 1969) 45. See K Barron, ‘The Collecting and Patronage of John, Lord Lumley (c 1535– 1609)’ in E Chaney (ed), The Evolution of English Collecting: The Reception of Italian Art in the Tudor and Stuart Periods (New Haven, Yale University Press, 2003) 125–58; also, CD Liddy and C Steer, ‘John Lord Lumley and the Creation and Commemoration of Lineage in Early Modern England’ (2010) 167 Archaeological Journal 197–227. 139  ‘It [the ‘Coronation’ portrait of Richard II] was rediscovered “fastened to the backside of a door of a base room” by John, Lord Lumley. Lumley brought the portrait to the attention of Elizabeth I, and it may well have been the basis for the portrait of Elizabeth in her coronation robes’: J Alexander and P Binski (eds), Age of Chivalry: Art in Plantagenet England 1200–1400 (London, Royal Academy of Arts / Weidenfeld and Nicolson, 1987) 518. 138  FL,

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identify a visual rhetoric that locates subject and object firmly in the realm of the aesthetic image. In both of these paintings, the persona of the monarch takes precedence over the person of the sitter: the viewer is witness to the solemn enactment of kingship. Stephen Greenblatt has noted of the Elizabethan period that ‘Royal power is manifested to its subjects as in a theatre, and the subjects are at once absorbed by the instructive, delightful, or terrible spectacles’.140 The reference to spectacles is apt, as it indicates the primacy of the visual image in facilitating the manifestation and communication of monarchic power. In the case of the Tudor dynasty, the show of majesty was brought vividly to bear in the depiction of its kings and queens, most notably through the medium of portraiture.141 Although the Tudor monarchs cultivated and exploited the idea of the king as Imago Dei—the image of God—the first English monarch to establish what might be termed the theatre of divine kingship was Richard II.142 It was during the reign of Richard II that a vocabulary not only of words, but also of gesture was developed, intended to represent and enhance the mystical presence of the King. For example, Sir John Bushy, Speaker of the House of Commons in the ‘Revenge’ Parliament of 1397, recalled that whenever he addressed the king, who was seated on his throne, he would extend his arms and supplicate with his hands, as if praying to him, entreating his high, excellent and most praiseworthy majesty that he might deign to concede these or those things.143

In his Chronicles of England, one of the primary sources for Shakespeare when writing the History plays, Holinshed commented of Bushy’s address to the King that he ‘did not attribute to him titles of honour, due and accustomed, but invented unused termes and such strange names, as were rather agreeable to the divine maiestie of God, than to any earthlie potentate.’144 According to the ­Canterbury Eulogium chronicler, Richard II invariably sat, ‘throned in state from dinner till vespers, observed by his courtiers, who were expected to bend the knee

140  S Greenblatt, ‘Invisible bullets: Renaissance authority and its subversion, Henry IV and Henry V’ in J Dollimore and A Sinfield (eds), Political Shakespeare: Essays in Cultural Materialism (Manchester, Manchester University Press, 1994) 18–47, 44. On kingship and the transformative power of the king’s iconic image, see L Marin, Portrait of the King, MM Houle (trans) (Basingstoke, Macmillan, 1988): ‘The king is only truly king, that is, monarch, in images. They are his real presence. A belief in the effectiveness and operativeness of his iconic signs is obligatory, or else the monarch is emptied of all his substance through lack of substantiation, and only simulacrum is left’, 9. 141  See K Sharpe, Selling the Tudor Monarchy: Authority and Image in 16th-Century England (New Haven, Yale University Press, 2009); also, S Anglo, Images of Tudor Kingship (London, BA Seaby, 1992). 142  It seems that Shakespeare’s depiction of Richard II as a ‘player-king’ was accurate: Saul notes that Richard II had a ‘deeply-felt instinct for theatricality. From the time of the Peasants’ Revolt to the closing days of the reign his public behaviour was characterized by a tendency to self-assertion and self-dramatization’: N Saul, ‘Richard II and the Vocabulary of Kingship’ (1995) 110(438) The English Historical Review 854–77, 861. 143  ‘Annales Ricardi Secundi et Henrici Quarti’ in W de Rishanger, Chronica et Annales, HT Riley (ed) (London, Longman, 1866) 68. 144  R Holinshed, Chronicles of England, Scotland and Ireland, 6 vols (London, J Johnson, 1807–08) 2: 840.

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­ henever his gaze fell on them.’145 There is much in common with the aesthetics of w power associated with Elizabethan rule, and it may have been this theatrical aspect of Ricardian kingship that the Queen had in mind when she posed her enigmatic question to Lambarde: ‘I am Richard II, know ye not that?’ It is highly improbable that she would have alluded openly either to the absolutism that characterised his reign, or to the deposition that ended it. Given the date at which the conversation was supposed to have taken place, it seems more likely that Elizabeth was thinking about the absence of an obvious heir to the throne, as she approached the end of her life.146 The interest of Elizabeth in Richard II or, to be more precise, in the representation of Richard II, may have had its basis in that particular king’s manipulation of spiritual iconography for temporal purposes, strengthening and extending the ambit of the royal prerogative. Those who opposed his excessive exercise of the royal prerogative were regarded as rebels against the sanctity of majesty.147 The most striking pictorial images of Richard II that were painted during his lifetime are undoubtedly the ‘Coronation’ portrait in Westminster Abbey (c 1395) and ‘The Wilton Diptych’ (c 1395–99). The former painting is the earliest known ­‘Coronation’ portrait of an English monarch and, I shall argue, it serves as a template and precedent for The ‘Coronation portrait’ of Elizabeth I (see Figures 15 and 16). In it, the newly crowned king gazes directly at the viewer; the sceptre (symbol of temporal authority) in his left hand, and the orb (symbol of Christ’s dominion over the world and of the king’s role as God’s anointed deputy) in his right. Nigel Saul has argued that ‘People were encouraged to see Richard as a supra-mortal, even a God-like, being’; in which case, it is not coincidental that the face of Richard in the ‘Coronation’ portrait is ‘like an iconic close-up of the face of Christ’.148

145 

Saul, ‘Richard II and the Vocabulary of Kingship’, 875. describes James VI as ‘Elizabeth’s implicit, but frustratingly unannounced, choice’: Hammer, ‘Shakespeare’s Richard II’, 8–9. On the claims to the English throne of respectively Arbella Stuart, the sons of the Earl of Hertford and Catherine Grey, and the Infanta Isabella Clara Eugenia, see ibid, 6. On the alleged plot by Sir Walter Raleigh and his co-conspirators to murder James I and establish Arbella Stuart on the throne, see Chapter 2, n 16, above. Regarding the comparison made by Elizabeth I between her reign and that of Richard II, Duncan-Jones notes: ‘Carrying the identification of herself with Richard to its full extent meant embracing the probability both of deposition and assassination’, K Duncan-Jones, Shakespeare: Upstart Crow to Sweet Swan, 1592–1623 (London, Arden Shakespeare, 2011) 224. 147  ‘Richard came to see those who accroached on the royal prerogative as “rebels”: or, to be more precise, as “rebels” against “majesty”’, Saul, ‘Richard II and the Vocabulary of Kingship’, 867. 148  ibid, 862. The issue roll for Westminster Abbey, of 15 December 1395, records payment of 20 pounds ‘for the picture of an image in the likeness of a king in the choir of the church’: Alexander and Binski (eds), Age of Chivalry, 517. The painter of the ‘Coronation’ portrait is unnamed, ‘but Richard II’s painter until 1395 was Gilbert Prince of London, who was succeeded before January 1397 by Thomas Litlyngton’, ibid. On medieval, ‘visual art as a universal medium of communication’, see M Camille, ‘The Language of Images in Medieval England, 1200–1400’ in ibid, 33–40, 33. Regarding the capacity of figurative art to represent the divinity of Christ, see A Coleman Danto, Embodied Meanings: Critical Essays and Aesthetic Meditations (New York, Farrar, Straus and Giroux, 1995). For a comprehensive introduction to religious art of the period, see G Campbell, Renaissance Art and Architecture (Oxford, Oxford University Press, 2004); also, A Spira, ‘Ars Sacra c 1200–1527’ in M Kemp (ed), The Oxford 146  Hammer

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Throughout her reign of 45 years Elizabeth was herself the subject of numerous portraits, many of which sought to mythologise her as a goddess, endowing her with supernatural powers. See, for example, the exquisite miniature ‘Elizabeth I and the Three Goddesses’ (c 1590, attributed to Isaac Oliver), a reworking of the classical legend the Judgement of Paris. In this painting, the aura of splendour surrounding the Queen appears to alarm and discomfort Juno and Pallas-Minerva, while Venus can only gaze in wonderment at her beauty (the portrait noticeably flatters the aging features of Elizabeth). The golden apple, given by Paris to the fairest of the three goddesses, is replaced here by a large orb, which the Queen retains for herself, implying that she alone embodies the virtues associated with the three goddesses (see Figure 17).149 The ‘Ditchley Portrait’ (c 1592), by Marcus Gheeraerts the Younger, was painted to commemorate the visit by Elizabeth to Henry Lee’s house at Ditchley, Oxfordshire, in September 1592 (see Figure 18).150 Gheeraerts places the Queen in an emphatically English setting, while endowing her with a mystical aura of divinity. Elizabeth I, supremely majestic in bejewelled dress, appears to float over a map of England, thunderous skies behind her and bright sunlight in front. Her feet rest above a map of the county of Oxfordshire, marking her arrival and reception at Ditchley Park. The sonnet, inscribed

­History of Western Art (Oxford, Oxford University Press, 2000) 138–43; J Richards and M Kemp, ‘The New Painting: Italy and the North’ in ibid, 152–61. 149  The Oliver painting, which measures only 115 mm × 157 mm, is of exceptional quality (watercolour and bodycolour, heightened with gold, on vellum stuck to card), suggesting that it may have been painted for Elizabeth herself. See C Bolland and T Cooper, The Real Tudors: Kings and Queens Rediscovered (London, National Portrait Gallery, 2014) 134. The miniature was based on an earlier version of ‘Elizabeth I and the Three Goddesses’, painted by Hans Eworth in 1569. On the frame of the Eworth painting is the inscription: ‘IVNO POTENS SCEPTRIS ET MENTIS ACVMINE PALLAS / ETROSEO VENERIS FVLGET IN ORE DECVS / ADFVIT ELIZABETH IVNO PERCVLSA REFVGIT OBSVPVIT PALLAS ERVBVITQ VENVS’ [‘Pallas was keen of brain, Juno was queen of might, / The rosy face of Venus was in beauty shining bright, / Elizabeth then came, And, overwhelmed, Queen Juno took flight: / Pallas was silenced: Venus blushed for shame’]. The painting is in The Royal Collection (RCIN 403446) and currently hangs in the Queen’s Drawing Room, Windsor Castle. For analysis of this painting, see S Doran, ‘Virginity, Divinity and Power: The Portraits of Elizabeth I’ in TS Freeman and S Doran (eds), The Myth of Elizabeth (London, Palgrave Macmillan, 2003) 171–199, 175–76; also, K Hearn (ed), Dynasties: Painting in Tudor and Jacobean England, 1530–1630 (New York, Rizzoli, 1995)  63. 150  Henry Lee (1533–1611) was one of Elizabeth’s favourite courtiers. In 1571, he was appointed Lieutenant of the royal manor of Woodstock: the Queen visited Woodstock on three occasions in the 1570s. In 1580, Lee was made Master of the Armoury, in which role he became responsible for organising the annual Accession Day tilts. Lee became a Knight of the Garter in 1597; see EK Chambers, Sir Henry Lee: An Elizabethan Portrait (Oxford, Clarendon Press, 1936). For an image of Lee (painted in 1568 by Antonis Mor) and commentary, see C Saumarez Smith, The National Portrait Gallery (London, National Portrait Gallery, 2000) 38–39. Strong describes the ‘Ditchley Portrait’ as ‘Lee’s own picture of his life’s heroine’: R Strong, The Cult of Elizabeth: Elizabethan Portraiture and Pageantry (London, Thames and Hudson, 1977) 154. Sir John Harington wrote of Elizabeth I: ‘When she smiled, it was a pure sun-shine, that every one did chuse to bask in, if they could; but anon came a storm from a sudden gathering of clouds, and the thunder fell in wondrous manner on all alike’, quoted in Saumarez Smith, National Portrait Gallery, 46. On the painter of the ‘Ditchley Portrait’, Marcus Gheeraerts the Younger, see K Hearn and R Jones, Marcus Gheeraerts II: Elizabethan Artist (London, Tate Publishing, 2002).

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on the right side of the portrait, compares the Queen with ‘The prince of light. The Sonne by whom …’ (line-ends of the sonnet have been cut from the painting, presumably when it was framed). Whilst the portrait acknowledges the advancing age of the monarch, of greater symbolic importance is its suggestion that her celestial authority is undiminished. According to the third line of the sonnet, the sun itself ‘Hath no such glorye …’ The fifth line includes the word ‘thunder’, used either as a noun or (arguably) as an imperative verb: ‘Thunder the ymage of that power div[ine]’. The 12th and 13th lines offer ‘Rivers of thankes’ for honouring Ditchley with her majestic presence. Astraea, Venus, Gloriana and Diana all figure in the literary and pictorial ­iconography of the Queen. Christopher Haigh argues that ‘the public Elizabeth was not a real person, but a cluster of images’.151 In support of his argument, he quotes from Thomas Dekker’s play Old Fortunatus, which was performed before the Queen by the Admiral’s Men on 27 December 1599. In a prologue that was addressed to the Queen, reference was made throughout to the divine majesty of ‘Eliza’. The prologue starts with the following conversation between two old men: 1  Are you then travelling to the temple of Eliza? 2  Even to her temple are my feeble limmes travelling. Some cal her Pandora: some ­Gloriana, some Cynthia: some Delphæbe, some Astræa: all by severall names to expresse severall loves: Yet all those names make but one celestial body, as all those loves meete to create but one soule. 1  I am one of her owne countrie, and we adore her by the name of Eliza. 2  Blessed name, happie countrie: Your Eliza makes your land Elizium …152

As in the ‘Ditchley Portrait’, celestial imagery was employed to project the sense of divinity that her presence was intended to evoke. In Old Fortunatus the second old man offers the following encomium to Elizabeth: I weepe for ioy to see the Sunne looke old, To see the Moone mad at her often change, To see the Starres onely by night to shine, Whilst you are still bright, still one, still divine …153

During the reign of Elizabeth I, the use of Judaeo-Christian religious iconography was, to say the least, contentious. Iconoclastic reformers interpreted ecclesiastical imagery as inherently idolatrous, embodying falsehood and dissemblance. As a consequence of such intolerance, the character angelicus of the Queen was represented instead with reference to the mythography of ancient, classical art. It was permissible for example to depict the Queen as Astraea, the virgin goddess, who

151 

C Haigh (ed), The Reign of Elizabeth I (Basingstoke, Macmillan, 1984) Introduction, 5. T Dekker, The Pleasant Comedie of Old Fortunatus (London, William Aspley, 1600) sig. A.v. 153  ibid, sig. A.2.r. Bate notes that ‘Queen Elizabeth was mythologized as the returned Astraea of Virgil’s fourth eclogue’: W Shakespeare, Titus Andronicus, J Bate (ed) (London, Arden Shakespeare, 1995) Introduction, 28. See FA Yates, Astraea: The Imperial Theme in the Sixteenth Century (London, Routledge and Kegan Paul, 1975) 75–80. 152 

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took flight from the wickedness of mankind and ascended to the heavens as the constellation Virgo (drawn from Book 1 of Ovid’s Metamorphoses). There was another iconic, virginal figure with whom the Queen was associated, who links the portraiture of Elizabeth (and one portrait in particular) with the religious iconography surrounding Richard II. This figure was the Blessed Virgin Mary, the Mother of Christ. Indeed, it has been argued that the cult of Elizabeth was a response to strenuous attempts, made during the English Reformation, to disband the cult of the Virgin Mary. In some sixteenth-century eyes, Elizabeth was a Protestant substitute for a Roman Catholic icon of motherhood and selfless devotion.154 The ‘Coronation portrait’ of Elizabeth I depicts the Queen, crowned and wearing the cloth of gold robes, which she wore at her coronation on 15 January 1559. They had been worn by her predecessor Mary at her coronation. The portrait was painted between 1600 and 1610. It has been argued that it is a copy of a lost original, completed at some point in 1559, but no evidence exists of an earlier version, and as John Fletcher has argued: ‘There was no precedent in England in 1559 for the newly-crowned monarch to be painted in her coronation robes, let alone for a painting on a very large panel’.155 Fletcher’s claim notwithstanding, there was one outstanding precedent: the ‘Coronation’ portrait of Richard II. The portrait of Elizabeth I is a portrait not only of a monarch, but a depiction also of youthful femininity and beauty, even of vulnerability. It is strikingly similar in theme, composition and appearance to the ‘Coronation’ portrait of Richard II. The crown, orb and sceptre are regal artefacts common to both paintings (although missing from the portrait of Richard II is the ring that was placed on his finger during the coronation ceremony at Westminster Abbey; the seal of his faith and symbol of his pastoral responsibility).156 The shapes of the faces in the two portraits are similar, so too is the colouring of the hair (which, in the case of Elizabeth, was the same shade as her father’s). Staring directly at the viewer, both faces express a sense of inexperience and vulnerability, while conveying the mystical aura of kingship (at his coronation in 1377, Richard II was only 10; at hers in 1559, Elizabeth was 25): the body natural subsumed into the body politic (see Figure 19). The most significant historical fact regarding both portraits is that they were painted retrospectively: neither was contemporaneous with the actual event depicted in the painting. The portrait of Elizabeth was painted about 40 years after

154  See H Hackett, ‘Rediscovering Shock: Elizabeth I and the Cult of the Virgin Mary’ (1993) 35 Critical Quarterly 30–42; also, H Hackett, Virgin Mother, Maiden Queen: Elizabeth I and the Cult of the Virgin Mary (Basingstoke, Palgrave Macmillan, 1995). On royal portraiture and the representation of Protestant ideology in sixteenth-century England, see P Goodrich, ‘The Iconography of Nothing: Blank Spaces and the Representation of Law in Edward VI and the Pope’ in C Douzinas and L Nead (eds), Law and the Image (Chicago, The University of Chicago Press, 1999) 89–114. 155  J Fletcher, ‘The Date of the Portrait of Elizabeth I in her Coronation Robes’ (1978) 120(908) The Burlington Magazine 753. 156  N Saul, Richard II (New Haven, Yale University Press, 1997) 26.

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her coronation and that of Richard II between 18 and 22 years after his. R ­ ichard himself commissioned the ‘Coronation’ portrait and it appears that the form and subject matter of the painting were determined by political events of the mid to late 1390s. Thomas Walsingham summarised the shift towards absolute rule in his Chronicle of 1397, in which he stated that during this year the King ‘began to tyrannize’ his subjects.157 Walsingham referred to the imposition of forced loans and blank charters: so called because although the sums specified to be ‘lent’ were included in the documents, the names of the lenders were omitted until it became known which people had the requisite funds to lend. Such procedures were undoubtedly unconstitutional and almost certainly illegal. The levying of this tax had not been approved by Parliament, and the manner of its imposition called into question the constitutional validity of general or non-specific warrants, the illegality of which was established only in the eighteenth century in the cases of Wilkes v Wood and Entick v Carrington.158 It was during 1397 also that Richard II turned against his opponents among the nobility, arresting the three senior Lords Appellant—Warwick, Gloucester and Arundel—and trying them by appeal in the ‘Revenge’ Parliament. By the time of his due appearance before the High Court of Parliament in September 1397, Gloucester had been murdered while imprisoned in Calais. The killing was almost certainly carried out on the King’s orders. Richard feared the impression Gloucester’s eloquence might have made on the court, and anyway it was by no means certain that the High Steward of the court, Gloucester’s brother (John of Gaunt, Duke of Lancaster), would pass sentence of death on him, it being considered ignoble to execute a prince of the royal blood.159 Arundel was executed, but Warwick pleaded guilty and begged for mercy from the King. The death sentence was commuted to life imprisonment on the Isle of Man. The three earls had been the principal instigators of the uprisings of 1386–88, in which the exercise of the royal prerogative to levy tax at an unprecedented level was challenged and the political influence of the King’s favourites destroyed.160 In effect, the measures taken by Richard II in 1397 instanced a coup against those influential personages who sought to restrain his political excesses. His proclamation of 15 July 1397 referred only generally to their ‘extortions, oppressions, grievances etc. Committed against the king and people, and for other offences

157  C Given-Wilson (ed), Chronicles of the Revolution, 1397–1400: Reign of Richard II (Manchester, Manchester University Press, 1993) 71. 158  Wilkes v Wood (1763) 19 St Tr 1153; Entick v Carrington (1765) 19 St Tr 1029. In discussion of these two cases, Goodrich refers to ‘the inviolability of soil’ and the immemorial law of unwritten tradition that guarantees protection of proprietary interests by the courts, Goodrich, Languages of Law, 215. 159  See AE Stamp, ‘Richard II and the Death of the Duke of Gloucester’ (1923) 38(150) The English Historical Review 249–51; RL Atkinson, ‘Richard II and the Death of the Duke of Gloucester’ (1923) 38(152) The English Historical Review 563–64. 160  On the rejection by Parliament in October 1386 of Chancellor de la Pole’s request for taxation in order to defend the realm from French invasion, see Saul, Richard II, 157; on the arrest and subsequent treatment of the three earls, see ibid, 366–79.

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against the king’s majesty’.161 According to the Parliamentary Roll (recorded in old French), at the opening of the September 1397 Parliament (on St Lambert’s Day, 17 September), the new Chancellor, Edmund Stafford, Bishop of Exeter, stated that ‘ont il prist a son theme la pole de Ezechiel le Prophete, Rex unus erit omnibus’.162 Stafford was referring to Ezekiel 37.22: ‘one king shall be king to them all’. The arrogation to the Crown of absolute power was justified by reference to Biblical sources: the Word of God condoned the autocratic conduct of a divinely ordained king. That was the message relayed by Stafford to a Parliament whose new members included 25 royal retainers, 85 holders of crown offices and a Speaker (Sir John Bushy) who was a close councillor of the King.163 Such also was the visual message conveyed by the ‘Coronation’ portrait of Richard II. It is a pictorial representation of unchallengeable, irrefutable right, bestowed by God and claimed for the King in Stafford’s address to the 1397 Parliament: ‘ils ont de droit pluseurs Privileges donez a eux, come Regalies, Prerogatives, & pluseurs autres Droitz annexes a la Corone’ [‘they have by right several Privileges given to them, like Regalities, Prerogatives, and several other rights annexed to the Crown’].164 Just over two years later, on 29 September 1399, Richard II abdicated while imprisoned in the Tower of London. Ever aware of the rhetorical power of theatrical gesture, when he surrendered the crown it was recorded that ‘he placed it on the ground and resigned his right to God’.165 On 13 October (St Edward’s Day), his usurper, Henry Bolingbroke, Duke of Lancaster, was crowned King of England. By mid to late February 1400, Richard was dead, either hacked to death by Sir Piers Exton and his followers (the story preferred by Shakespeare) or (more likely) starved to death in his cell at Pontefract Castle, Yorkshire.166 Was it fear of deposition that Elizabeth I had in mind when she asked of ­Lambarde, ‘I am Richard II, know ye not that?’ Further examination of the ­Elizabethan coronation portrait goes some way towards answering that question. The date of the portrait is significant, as the scholar or curious viewer is impelled to ask why the painting was commissioned so long after the coronation itself. Treering analysis of the three timbers that make up the large panel has established that the tree from which they were made was felled in 1597, or at most a few years after that date. This would suggest that the probable date for the painting of the ‘Coronation portrait’ is between 1600 and 1610. Fletcher, who carried out treering measurements on the painting, argues that it may have been painted as part of the elaborate events which surrounded the funeral of Elizabeth I in April 1603,

161  Calendar of Close Rolls preserved in the Public Records Office: Richard II (Neldeln, Liechtenstein, Kraus Reprint, 1972) 208. 162 J Strachey (ed), Rotuli Parliamentorum; Ut Et Petitiones, Et Placita in Parliamento Tempore Edwardi R I, 6 vols (London, 1767–77) 3:347. 163 Saul, Richard II, 376. 164  Strachey (ed), Rotuli, 347. 165  Given-Wilson (ed), Chronicles of the Revolution, 155. 166  The single reference to Sir Piers Exton is contained in Traison et Mort, ibid, 233–34; the person of Exton is otherwise unknown. On the death of Richard II, see Saul, Richard II, 425–29.

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and was ‘intended to remind one of her “Second Coronation” after her ascent from earth to heaven.’167 Fletcher’s is a plausible explanation, but for more satisfactory exegesis we need to consider the tendency of figurative artists in the Elizabethan era to allegorise their subjects. As Roy Strong has noted of Elizabethan visual art, paintings served an iconic function, guiding the viewer to comprehension of the underlying theme of the particular artefact. With reference to the numerous paintings of Elizabeth I, Strong suggests that they are texts, ‘which call for reading by the onlooker.’168 With Strong’s injunction to semiotic analysis of Elizabethan royal portraiture in mind, I turn to the coronation robes, depicted in the panel portrait. The painting accurately reflects the description in the Inventory of the Wardrobe of Robes, as ‘one mantle of Clothe of golde tissued with golde and silver furred with powdered Armyons [ermines] with a mantle lace of silke and golde with buttons and tassels to the same’.169 The cloth of gold mantle and kirtle worn at the coronation of Elizabeth were made not for that particular occasion, but for the coronation of her predecessor, Mary. For Janet Arnold, the fact of Elizabeth’s wearing her Catholic half-sister’s robes at her own coronation ‘must have seemed like a triumphant and tangible symbol of safety and freedom.’170 This may or may not have been the case: in the context of Elizabeth’s coronation, the robes may also be seen as a symbol of dynastic succession. The thematic connection with Mary and Roman-Catholicism recalls the cult of another Virgin Queen, to whom I have already referred: the Blessed Virgin Mary. The association with the mother of Christ establishes a further link with ­Richard II, one that is manifest in the other royal portrait commissioned by Richard: the Wilton Diptych, in which the veneration of the Virgin Mary by Richard II is a principal theme (see Figure 20). My interest in this particular artefact is concerned with noting the manner in which the meaning of a specific image is capable of infinite mutation and reinvention. Given Richard’s insistence on his right to govern absolutely, which he justified by reference to his status as God’s anointed deputy (accountable to God alone and not beholden to municipal law), the humiliating circumstance of his deposition and his inauspicious demise in Pontefract Castle provide a salutary counterpoint to the idea of providential kingship that the Diptych was originally intended to represent. The sign is the trace of a memory and, for a legal system predicated upon a system of precedent rather than a codified institutional edifice, the reflection of that memory in an order of signs is of paramount importance.171 The relevance of the Wilton Diptych to such

167 

Fletcher, ‘The Date of the Portrait of Elizabeth I’, 753. R Strong, The Spirit of Britain (London, Hutchison, 1999) 177. 169  J Arnold, ‘The “Coronation” Portrait of Queen Elizabeth I’ (1978) 120(908) The Burlington Magazine 726–41, 727; see also, Roy Strong, Portraits of Queen Elizabeth I (Oxford, Clarendon Press, 1963) 54. 170  Arnold, ‘The “Coronation” Portrait’, 728. 171  On ‘the memory of presence’ in the English legal tradition, see Goodrich, Languages of Law, 53. 168 

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an aesthetic order is that it acts as a signifier of divinely ordained kingship; but after the death of Richard II, it became a signifier also of the mortality of kings, and of their susceptibility to deposition. In this respect, the representation (on the left interior panel of the Diptych) of St Edmund the Martyr (King of England, 855–869), holding one of the arrows that was supposed to have killed him, attains symbolic prominence.172 Surrender and subjection to the authority of the legal institution is contingent upon the persuasive power of the image. The institutional memory of English law is selective: apologists for common law in Elizabethan and Jacobean England proclaimed the immemorial, indigenous origins of common law, while conveniently ignoring the influence of foreign, rival jurisdictions (notably those of civil and canon law).173 The images and narratives of English law have been continuously adapted to suit the circumstances of its immediate condition.174 The royal portraits of the late medieval and early modern periods were signs, unravelling in visual images the complex emotional bond between the legal institution and the subject of law. In this sense, they served the didactic function of instructing their audience on the relationship between governor and governed. The known facts about the creation of the ‘Coronation Portrait’ of Elizabeth I are that it was not commissioned by the Queen, and that it was painted between the years 1600 and 1610. If it was painted to commemorate the death of Elizabeth I and her second coronation in a Protestant Heaven, then it is fair to ask why she was portrayed in robes worn originally by her Roman Catholic half-sister, Mary. As Susan Doran has noted, Marian iconography is unusual in portraits of Elizabeth: ‘in works where she was the patron of a portrait, she was more usually depicted as a Protestant ruler than a virgin queen.’175 Consideration of this issue begs the more fundamental question of why the death of Elizabeth I was commemorated by a revival of the coronation scenario. In light of the above, it seems reasonable to suggest that the template for the ‘Coronation portrait’ of Elizabeth I was almost certainly not an earlier version, painted around the time of the Queen’s coronation. There is no evidence to suggest that an earlier version of the portrait was actually painted. It is far more likely that the precedent and paradigm for the

172  For detailed discussion of the temporal and spiritual symbolism of the Wilton Diptych, see Raffield, Shakespeare’s Imaginary Constitution, 82–85; also, C Given-Wilson, ‘Richard II and the Higher Nobility’ in A Goodman and J Gillespie (eds), Richard II: The Art of Kingship (Oxford, Clarendon Press, 1999) 107–28. On St Edmund the Martyr, see A Bale (ed), St Edmund King and Martyr: Changing Images of a Medieval Saint (York, York Medieval Press, 2009). 173  For example: ‘If the ancient laws of this noble island had not excelled all others, it could not be, but some of the several conquerors and governors thereof, that is to say, the Romans, Saxons, Danes, or Normans, and’ specially the Romans, who (as they justly may) do boast of their civil laws, would (as every of them might) have altered or changed the same’, Coke, 2 Reports (1602) 1: ‘To the Learned Reader’, x. 174  For a theoretical discussion of the adaptation of traditions to suit contemporary institutional circumstances, see H-G Gadamer, Truth and Method, J Cumming and G Barden (eds), W Glen-Doepel (trans) (London, Sheed and Ward, 1979). 175  Doran, ‘Virginity, Divinity and Power’, 172.

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Elizabethan coronation portrait was the ‘Coronation’ portrait of Richard II, which is identical in theme and style to the ‘Coronation portrait’ of Elizabeth. The allusion to Marian iconography in the Elizabethan coronation portrait refers us inevitably to the other painting associated with Richard II: the Wilton Diptych, and its representation of divinely ordained kingship. Elizabeth’s successor to the English throne, James VI of Scotland, had made public his opinions on the nature of monarchy in The Trew Law of Free Monarchies, first published in 1598. The description by James of the unlimited power vested in God’s anointed deputy bears a startling resemblance to the kingship of Richard II: The duetie, and alleageance of the people to their lawfull king, their obedience, I say, ought to be to him, as to Gods lieutenant in earth, obeying his commands in all things, except directly against God, as the commands of Gods Minister, acknowledging him a Iudge set by GOD over them, having power to iudge them, but to be iudged only by God, whom to only hee must give count of his judgment.176

A few paragraphs later, he expressed the same sentiment; only this time, more concisely: ‘the King is above the law’.177 In his resolute belief in the divine right of kings,178 James VI demonstrated conformity with the providential autocracy of Richard II. Like Richard II, he endowed the royal prerogative with mystical and irrefutable authority. Judges were not permitted to question exercise of the prerogative, on grounds that ‘That which concernes the mysterie of the Kings power, is not lawfull to be disputed’.179 In light of the probable date at which the ‘Coronation portrait’ of Elizabeth I was painted, either immediately before or soon after the accession of James I (but in either case, after the publication of The Trew Law of Free Monarchies), it is reasonable to suggest that the portrayal of the Queen may have been an encoded warning to her successor, along the following lines: abide by the Bractonian doctrine of limited kingship, or perish like your Plantagenet forebear, Richard II. The augury was ignored. The Stuart kings adhered from the start to an imperial model of governance. In Of the Laws of Ecclesiastical ­Polity,

176  James I, ‘The Trew Law of Free Monarchies’ in Sommerville (ed), King James VI and I, 72. James VI’s other major work on the subject of kingship was Basilicon Doron. This was intended (ostensibly at least) as a book of advice for his son and heir, Henry. The manuscript was completed in 1598, and it was published in Edinburgh in 1599. Revised editions were published in Edinburgh and London in 1603; see Sommerville (ed), King James VI and I, Introduction, xviii–xix. On the substance of princely education and Basilicon Doron, see Chapter 5, text to nn 80–85, below. 177  James I, ‘The Trew Law of Free Monarchies’, 75; on The Trew Law of Free Monarchies and tyranny, see Chapter 2, text to nn 165–73, above. 178  On the divine right of kings, the threat posed to the crown by Presbyterianism, and specifically the claim of Thomas Cartwright that the governance of the Church and the State should be distinct, see J Guy, ‘The Elizabethan Establishment and the Ecclesiastical Polity’ in J Guy (ed), The Reign of Elizabeth I: Court and Culture in the Last Decade (Cambridge, Cambridge University Press, 1995) 126–49, 127; also, P Lake, Anglicans and Puritans? Presbyterianism and English Conformist Thought from Whitgift to Hooker (London, Unwin Hyman, 1988) 1–2; C Cross, The Royal Supremacy in the Elizabethan Church (London, Allen & Unwin, 1969). 179  James I, ‘Speach In The Starre-Chamber’ in Sommerville (ed), King James VI and I, 213.

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the Elizabethan divine (and political theologian) Richard Hooker had urged restraint, reiterating Bracton’s assertion that the king was subject not only to the law of God, but to municipal law also: ‘The axioms of our regal government are these, Lex facit Regem.’180 All of this was to no avail. The Stuart dynasty was set on a course of absolute rule, which would lead eventually to vociferous dissent in ­Parliament, civil war, and the abolition of monarchy. I suggest that ‘I am Richard II, know ye not that?’ was the concealed message of the ‘Coronation portrait’ of Elizabeth I. The pattern, precedent, and warrant for the painting were over 200 years old, provided by the ‘Coronation’ portrait of Richard II. In the two centuries that separated these two paintings, the meaning of the royal image had mutated. The Tudor dynasty successfully exploited the capacity of portraiture to transform the person of the king into the symbolic body of the monarch. The failure of the Stuart monarchs to do the same may be attributed to a lack of transubstantiation. In place of veritas was simulacrum, in place of truth was falsehood, in place of iconography was idolatry.181 The first half of the seventeenth century instanced the transformation of the king from ‘deputy elected by the Lord’182 into an assailable and imperfect human body, cloaked in the defiled robes of kingship. The consequences to the crown would be fatal.

180  R Hooker, Of the Laws of Ecclesiastical Polity, AS McGrade (ed) (Cambridge, Cambridge University Press, 1989) 147, Bk VIII.III.III. On theories of kingship and resistance to tyranny, as espoused by Hooker, see Chapter 2, text to nn 185–91, above. 181  On the cult of monarchy in the courts of James I and Charles I, see RM Smuts, Court Culture and the Origins of a Royalist Tradition in Early Stuart England (Philadelphia, University of Pennsylvania Press, 1999) 23–50; also, TN Corns, The Royal Image: Representations of Charles I (Cambridge, Cambridge University Press, 1999). 182  Richard II (3.2.57).

4 Cymbeline: Empire, Nationhood and the Jacobean Aeneid I.  Some Footsteps in the Law Of this we find some footsteps in our Law, Which doth her Roote from God and Nature take, Ten thousand Men she doth together draw, And of them All, one Corporation make.1

Nosce Teipsum, from which the above stanza is quoted, was published in 1599. It was written by John Davies: the poet, barrister, judge and jurist whose satirical epigrams are discussed in Chapter 1, above. The major theme of ‘footsteps in our Law’ is one that I explore in the course of this chapter. Specifically, I consider the journey on which English law was embarked in the first decade of Jacobean rule. According to Davies, law derives its authority from ‘God and nature’; it unifies a disparate populace, and unites people within a single common-weal, body, or ‘Corporation’. The trope of law as being underfoot—‘some foot-steps in our Law’—is ancient, traceable at least to Plato’s Republic, in which justice was visualised as the quarry of hunters, ‘lurking right under our feet all the time’.2 The conceit is suggestive of a journey, along a path of self-discovery, during which the essence of justice is revealed. In A Direction or Preparative to the Study of the Lawe, William Fulbecke adapted the Platonic trope, providing a negative image of law being trampled underfoot by the Godless: ‘For religion, Justice, and law do stand together, & are together trodde under foote by such as neither care for God, nor goodness’.3 In his compendium of heraldic emblems and verses, The Mirrour of

1  J Davies, Nosce teipsum this oracle expounded in two elegies, 1. Of humane knowledge, 2. Of the soule of man, and the immortalitie thereof (London, I Standish, 1599) sig. F.v. 2 Plato, The Republic, D Lee (trans) (London, Penguin, 1987) 144, Bk IV.I.432d. 3  W Fulbecke, A Direction or Preparative to the Study of the Lawe (London, T Wight, 1600) sig. B.v. Fulbecke collaborated on ‘The Misfortunes of Arthur’, presented to the Queen at Greenwich Palace in 1588 by members of Gray’s Inn: T Hughes, Certaine Devises and shewes presented to her Maiestie by the Gentlemen of Grayes-Inne at her Highnesse Court in Greenewich (London, Robert Robinson, 1587 [1588]); see Chapter 3, text to n 109, above. For analysis of ‘The Misfortunes of Arthur’, see P Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge, Cambridge University Press, 2004) 131–38.

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Maiestie, published in 1618, Sir Henry Goodyere dedicated the last device in the book jointly to the three most senior judges of the common law: the Chief Justice of the King’s Bench, the Chief Justice of the Common Pleas, and the Chief Baron of the Exchequer. The emblem and its accompanying text is an encomium to the Platonic ideal of justice, and an injunction to magistrates that they should ‘hunt wilde creatures’ by day (thereby quelling ‘Disorders in all civil States’), while by night ‘they should watchfull insight keepe, / To hunt out Vice’. The dictum encircling the emblem reads: ‘sic ubique’ [‘everywhere’]. Here, the pictorial image appears to provide a composite of two Roman deities: ‘Night-wandring Luna’ (goddess of the moon) and her successor Diana (whose portfolio of divine patronage was extended to include hunting) (see Figure 2).4 The goddess depicted is armed with a bow, and stalks her quarry across a bleak landscape. In the background, on the horizon, a stag glances over its shoulder at Luna/Diana. In 1692, writing in the wake of the ‘Glorious Revolution’ of 1688, the anonymous editor of State Tracts employed the trope in a similar sense to that intended by Fulbecke nearly 100 years earlier, but directed it instead towards the abuses of monarchic power perpetrated in government by the late Stuart kings, Charles II and James II: ‘Our Laws (says he) were trampled under foot, and upon the matter abolished, to set up Will and Pleasure in their room, under the Cant and Pretence of Dispencing Power.’5 It is my aim in this chapter to examine the Jacobean dawn of the Stuart dynasty’s reign over England. At the heart of the Jacobean political project was the fervent desire of the newly crowned King James I to unite the realms of England and Scotland under one kingdom. In part, my concern here is to reflect the manner in which the arts of law, poetry and theatre played a crucial role in fulfilling the aim of creating a unified Britain, a nation with ambitions of further imperial expansion. Of central importance also to the style of Jacobean kingship was the tendency of James I to trample law underfoot whenever the legal institution (and in particular the courts of common law) opposed the extension of prerogative rule. In this context, of particular interest is the marked contrast between the absolutist leanings of James I and the artificial reason of common law. I refer throughout to Shakespeare’s late romance, Cymbeline, reading the play not only as a dramatic symbol of national and imperial identity, but also as a representation of the journey of intellectual and political self-discovery upon which the subject of law was tentatively embarked in Jacobean England. I interpret Cymbeline as a Jacobean Aeneid: an epic poem, for a new century and an uncharted epoch. An especially contentious aspect of Jacobean jurisprudence was the increased assimilation of rival juridical processes into the indigenous legal tradition, including those derived from Roman, canon and civil law. This development is reflected in Shakespeare’s

4  H Goodyere (Sir), The Mirrour of Maiestie: or, the Badges of Honour Conceitedly Emblazoned: with Emblems Annexed, Poetically Unfolded (London, W Jones, 1618) 63. 5  Anon (ed), State Tracts: Being a Farther Collection of Several Choice Treatises Relating to the Government, From the Year 1660 to 1689 (London, Richard Baldwin, 1692) ‘Preface to the Reader’.

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play by the depiction of the complex and ambiguous relationship between the British monarch, Cymbeline, and the Roman colonisers of his kingdom. For the purposes of the present analysis, I conceive law in symbolic terms, rather than in its narrow, historical context. If the historical material contained herein is not always brought directly to bear on the text of Cymbeline, it is because I interpret the realms of literature and law in this specific instance as running parallel to each other, rather than immediately impacting one upon the other.

II.  A Law Inscribed upon the Heart In her study of seventeenth-century interpretations of the Arthurian myth, Roberta Brinkley suggests that archetypal icons of nationhood such as King Arthur were signs of ‘the origin and power of English law’.6 It is apposite in this respect that in the preface to Part Nine of The Reports (published in 1613) Sir Edward Coke should refer to ‘a very ancient and learned treatise of the laws and usages of this kingdom’, entitled The Mirror of Justices, ‘which have been used by holy customs since the time of King Arthur, &c.’7 As so often in The Reports, mythical (or quasi-mythical) characters are employed by Coke as signifiers of the antiquity and constitutional hegemony of common law. For Coke, King Arthur was the personification of a united and ancient British state; but for others, at the time of the Jacobean accession, King Arthur represented the flawless genealogy of the Stuart dynasty. Henry VII (great-great-grandfather of James I) claimed descent from Cadwallader (last of the British kings) and ultimately from King Arthur.8 Hence, in A Prophesie of Cadwallader, last King of the Britaines (written in 1604 by William Herbert), James I is described as ‘The Lords great Stuart, Albions mightie King, / Our second Brute like to the morning starre’.9 As suggested in Chapter 3 with reference to the immediate post-Reformation period, it may be regarded as understatement to claim that the meaning of signs was ambiguous. The sign was never innocent; it was amenable to innumerable interpretations depending on the political predilections of the interpreter. Consequently, the images of King Arthur and Brutus of Troy became artefacts of interpretative contention for the proponents of rival political ideologies. As the 1692 editor of State Tracts noted of

6 

RF Brinkley, Arthurian Legend in the Seventeenth Century (London, Frank Cass, 1967) 41. Part 9 (1613) of The Reports of Sir Edward Coke, Knt. In English, G Wilson (ed), 7 vols (London, Rivington, 1777) 5: ‘To the Reader’, ia, ib. The Mirror of Justices was written by Andrew Horne (d 1328) in the fourteenth century, and remained a popular juristic text for the next three centuries. 8 Brinkley, Arthurian Legend, 2. In the Jacobean period, it was noted that the full name of James I, ‘Charles Iames Stuart’, is an anagram of ‘Claimes Arthur’s Seat’: R Gossedge and S Knight, ‘The Arthur of the Sixteenth to Nineteenth Centuries’ in E Archibald and A Putter (eds), The Cambridge Companion to the Arthurian Legend (Cambridge, Cambridge University Press, 2009) 103–19, 104–105. 9  W Herbert, A Prophesie of Cadwallader, last King of the Britaines: Containing a Comparison of the English Kings (London, Roger Iackson, 1604) sig. H.v. 7 

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the tumultuous political events in seventeenth-century England, ‘a true History’ was less to do with battles and the births of princes, than with ‘the Legal Government of a Nation, struggling with Arbitrary Power, and illegal Proceedings.’10 King Arthur, Cadwallader, Brutus of Troy, et al, became objects of political manipulation: rhetorical devices, intended to capture the imagination of the audience in an effort to assert the true history of Britain and the legitimacy of its government. The symbolic artefact as microcosm is central to my analysis of the early seventeenth-century English state. I examine Jacobean rule with especial reference to the anatomical representation (favoured by James I) of a united British nation, with the king as political head of a compliant body, made up of obedient subjects. Addressing Parliament on 21 March 1610, James I described the role of king variously as God’s lieutenant on earth, parens patriae, and ‘the head of this Microcosme of the body of man.’11 The anatomical representation of the body politic was a familiar trope throughout the Renaissance period, in which laws were depicted as tendons that bound the commonwealth. For example, on the first page of The boke named the Governour, Sir Thomas Elyot described the ‘publike weale’ as ‘a body lyvyng’.12 After his accession to the throne of England, unprecedented emphasis was placed by James I on the Pauline image of the spiritual ‘head’ of a united body (the head of James I substituted here for that of Christ, in St Paul’s The Epistle to the Ephesians).13 In his speech to Parliament of 19 March 1604, with reference to the kingdoms of Scotland and England, James I described himself as ‘the head wherein that great Body is united.’14 But the ‘perfect Union of Lawes and persons’—the ‘Naturalizing as may make one body of both Kingdomes under mee your King’15—desire for which was expressed by James I in March 1607, was

10  Anon (ed), State Tracts, ‘Preface to the Reader’. Heather James argues that Shakespeare ‘defined’ a nation ‘in terms of the laws, customs, and ethics established through its history’: H James, Shakespeare’s Troy: Drama, Politics, and the Translation of Empire (Cambridge, Cambridge University Press, 1997) 152. 11  JP Sommerville (ed), King James VI and I: Political Writings (Cambridge, Cambridge University Press, 1994) 181. 12  T Elyot, (Sir) The boke named the Governour (London, Tho Bertheleti, 1531) sig. A.r. See also, Fortescue: ‘The Law, under which the People is incorporated, may be compared to the Nerves or Sinews of the Body Natural; for, as by these the whole Frame is fitly joined together and compacted, so is the Law that Ligament (to go back to the truest Derivation of the Word, Lex à Ligando) by which the Body Politic, and all its several Members are bound together and united in one entire Body’: J Fortescue (Sir), De Laudibus Legum Angliae, J Selden (ed) (London, R Gosling, 1737) 22. See also, The Politics of Aristotle, Bk V.III.1302b33. 13  ‘But speaking the truth in love, may grow up into him in all things, which is the head, even Christ: From whom the whole body fitly joined together and compacted by that which every joint supplieth, according to the effectual working in the measure of every part, maketh increase of the body unto the edifying of itself in love’: The Epistle of Paul the Apostle to the Ephesians, 4.15–16 (all references to the text of The Bible are from the Authorised King James Version). On the use by Coke of the Pauline metaphor of the body, see P Raffield, Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (Oxford, Hart Publishing, 2010) 73. 14  Sommerville (ed), King James VI and I, 135. 15  ibid, 161. On relations between James I and the English Parliament, see C Russell, King James VI and I and his English Parliaments, R Cust and A Thrush (eds) (Oxford, Oxford University Press, 2011).

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rejected by the House of Commons and not attained until the Anglo–Scottish union of 1707. I consider especially the juridical implications of the disjointed realm, and the literal representation of the body politic as an anatomised artefact: the organic symbol of an interdependent relationship between crown, common law and common-weal in the first decade of Jacobean rule. The conclusion of Stephen Greenblatt that ‘a poetics of Elizabethan power’ is inseparable from ‘a poetics of the theatre’16 is as valid, if not more so, in relation to a poetics of Jacobean power. The statement, made by James I to both Houses of Parliament in March 1610, that ‘Kings Actions (even in the secretest places) are as the actions of those that are set upon the Stages’ is a patent acknowledgement of the correlation between statecraft and stagecraft, of the artifice of both, and of their reliance on the metamorphic power of theatre, transforming the actor into the character he professes to be.17 Unification of the two kingdoms of Scotland and England, desire for which was expressed by James I in his speech to Parliament of March 1604, could be achieved only if it were universally accepted that the state was an artificial construct, capable of infinite reinvention.18 James I envisaged the two countries not as separate nations, but as ‘a little World within it selfe, being intrenched and fortified round about with a naturall, and yet admirable strong pond or ditch’.19 There is a peculiar echo of the above words of James I in ­Shakespeare’s Cymbeline, in which Cloten remarks that ‘Britain’s / A world by itself ’, (3.1.12–13) and his mother the Queen describes Britain ‘As Neptune’s park, ribbed and paled in / With oaks unscalable and roaring waters’ (3.1.19–20).20 The terms in which Cloten’s stepsister Innogen expresses her idea of British nationhood are far less expansive than those employed above by the ‘clotpoll’ Cloten or his mother. Innogen describes Britain thus: ‘In a great pool a swan’s nest.’ (3.4.138)21

16  S Greenblatt, ‘Invisible bullets: Renaissance authority and its subversion, Henry IV and Henry V’ in J Dollimore and A Sinfield (eds), Political Shakespeare: Essays in Cultural Materialism (Manchester, Manchester University Press, 1994) 18–47, 44. 17  Sommerville (ed), King James VI and I, 184. 18  Forty years after Cymbeline was written, Hobbes made the following statement concerning the artifice of the state: ‘For by Art is created that great LEVIATHAN called a COMMONWEALTH, or STATE, (in latine CIVITAS) which is but an Artificial Man; though of greater stature and strength than the Naturall, for whose protection and defence it was intended; and in which, the Soveraignty is an Artificial Soul, as giving life and motion to the whole body’, T Hobbes, Leviathan, or, The Matter, Forme, & Power of A Common-Wealth Ecclesiasticall and Civill (London, Andrew Crooke, 1651) ‘The Introduction’, 1. 19  Sommerville (ed), King James VI and I, 136. 20  Hadfield argues that after 1603, Shakespeare moved away from the republican themes that are identifiable in Elizabethan works such as Titus Andronicus and The Rape of Lucrece, ‘towards an acceptance of the incumbent monarch’s status and role as head of state’: A Hadfield, Shakespeare and Renaissance Politics (London, Arden Shakespeare, 2004) 183. 21  For a convincing argument that the heroine of Cymbeline is ‘Innogen’ rather than ‘Imogen’, see W Shakespeare, Cymbeline, M Butler (ed) (Cambridge, Cambridge University Press, 2005) Introduction, 36, 77. All references to the text of the play are from this edition. As Butler notes, Innogen was ‘the name of the mother of the Britons’, ibid, 36. She married Brutus of Troy, the legendary founder of Britain. In The Faerie Queene, Spenser refers to her as ‘faire Inogene’: E Spenser, The Faerie Queene,

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The theme of a united Britain, albeit one subjected to imperial rule by a foreign power, was addressed by Shakespeare in Cymbeline, written in 1610, around the time of the investiture of James I’s eldest son Henry as Prince of Wales.22 In no other of Shakespeare’s plays is the dysfunctional body politic more graphically or more memorably represented than in the decapitated corpse of the King’s comically malevolent stepson Cloten, clad in the garments of Cymbeline’s banished subject, Posthumus, and cradled by the blood-splattered Innogen, mistakenly believing her husband to have been slain. Decapitated heads there are aplenty in Shakespeare’s plays,23 but only in Cymbeline does a headless body appear onstage. Insofar as Innogen and Posthumus are embarked upon physical and spiritual odysseys, I consider the motif of the journey (both in a literal and a figurative sense), which provides the narrative structure of Cymbeline (and the other lateShakespearean ‘romances’), but which serves also as a symbol of the quest for self-knowledge and self-determination,24 of a search for national and individual identity in the early seventeenth-century English state.25 The phantasm of Virgil’s Aeneid and the epic journey of its hero Aeneas, from the ruins of Troy to the foundation of Rome, loom large over the ensuing analysis, as they do over Cymbeline. So too, the legend of Aeneas’s descendant Brutus of Troy, his journey from Italy to the unlikely destination of Totnes in Devon, and his march east to found not only

TP Roche Jr (ed) (London, Penguin, 1978) 331, Bk II.x.13. Brutus was supposedly the grandson of Silvius Posthumus (a possible the source for the name of Posthumus in Cymbeline), and the great-­ grandson of Aeneas. See also, Cymbeline, R Warren (ed) (Oxford, Oxford University Press, 1998) Appendix A, 265–68, which includes a facsimile of Simon Forman’s account of an early performance of Cymbeline, in which the name ‘Innogen’ is written twice. Jones notes that ‘something positive is added to Cymbeline if we recognise that Shakespeare’s heroine shares her name with the legendary first queen of Britain’: E Jones, ‘Stuart Cymbeline’ (1961) 11 Essays in Criticism 84–99, 99. 22  The investiture took place on 5 June 1610. On the likely date of composition for Cymbeline, see Cymbeline, Butler (ed), Introduction, 5–6. Like Shakespeare’s Cymbeline, James I had two sons (Henry Frederick and Charles) and one daughter (Elizabeth). Four other of his children died before Cymbeline was written; see Introduction, n 38, above. 23  Rutter comments on the capacity of the decapitated heads in Shakespeare’s plays to ‘speak’ to the audience; in addition, she offers the following inventory: ‘a minimum of six are needed in the Henry VI trilogy written at the beginning of the playwright’s career; a “whole heap” in Pericles at the end. In between, eight more plays put heads on stage—and a further five imagine them just off ’, CC Rutter, ‘Talking Heads’ in S Hampton-Reeves and B Escolme (eds), Shakespeare and the Making of Theatre (Basingstoke, Palgrave Macmillan, 2012) 102–127, 105. 24  The other Shakespearean romances are Pericles, The Winter’s Tale and The Tempest. Coleridge and Hazlitt both used the word ‘romance’ to describe these plays: see Cymbeline, Butler, Introduction, 6–7. On Shakespearean romance as ‘the idea of a quest for discovery or self-discovery … a psychological journey’, see Cymbeline, (ed) Warren (ed), Introduction, 16. Orgel states that in connection with a category of Shakespearean plays, the phrase ‘romance’ was first used by Edward Dowden in Shakespeare: A Critical Study of His Mind and Art, published in 1875: W Shakespeare, The Tempest, S Orgel (ed) (Oxford, Oxford University Press, 1987) Introduction, 4, fn 3. 25  Upon his accession to the English throne, James I proclaimed himself ‘King of Britain’, but prior to the recognition of a single kingdom named ‘Great Britain’ in the Treaty of Union of 1706, England and Scotland were discrete kingdoms, with separate legislatures, ruled by the same monarch. See JF Larkin and PL Hughes (eds), Stuart Royal Proclamations, 2 vols (Oxford, Clarendon Press, 1973) 1: 19.

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the nation of Britain, but also the city of Troia Nova or Troynovant (London) on the banks of the River Thames.26 The mythography of the ancient world was an invaluable resource not only for poets, but also for the patriarchs and ‘lawyer-poets’ of early modern English law, exemplars of whom are Sir John Fortescue and his judicial successor Sir Edward Coke. They exploited the myth of Brutus, depicting him not only as an icon and archetype of nationhood, but also as the definitive founder of English law. According to Coke, ‘Brutus the first King of this land, as soon as he had settled himself in his kingdom, for the safe and peaceable government of his people, wrote a book in the Greek tongue, calling it the Laws of the Britons, and he collected the same out of the laws of the Trojans’.27 As Heather James notes in Shakespeare’s Troy, the Trojan legend, as narrated by Virgil, ‘became a privileged topos for nationalistic endeavors in early modern Europe.’28 Fortescue, Coke, and other common lawyers of the period were representative of a peculiar early modern propensity for blurring such distinctions as may be said to exist between mythology and history, between reality and illusion, between literature and law.29 Another of their number was Sir John Davies, from whose Nosce Teipsum the lines of verse with which this chapter begins are taken. The poem was written by Davies in the 1590s, several years before its author was knighted by James I in December 1603, while serving as Solicitor-General for Ireland. The quest for self-knowledge lies at the thematic heart of Davies’s poem, the title of which translates from the Latin as ‘Know Thyself ’. Davies’s effusive champion and editor in the nineteenth century, the Reverend Alexander B Grosart, described him as ‘artistically among the finest of our poets’;30 while Nahum Tate, the late seventeenth-century editor of Nosce Teipsum, expressed the conviction that ‘the poem, on account of its intrinsic worth, would be as lasting as the Iliad or the Æneid’.31 Davies represented the Homeric juridical

26  On the story of Brutus, as told by Geoffrey of Monmouth, see Chapter 3, n 15, above. Thorpe notes that Totnes had been an important trading port since the Saxon period: Geoffrey of Monmouth, The History of the Kings of Britain, L Thorpe (trans) (London, Penguin, 1966), 73, Pt i.16, fn 1. 27  Coke, 3 Reports (1602) 2: ‘To the Reader’, viiia. Fortescue states that ‘the Kingdom of England had its Origins from Brute and the Trojans, who attended him from Italy and Greece, and became a mixt Kind of Government, compounded of the Regal and Political’, Fortescue, De Laudibus, 23–24. On the mythical origins of English law, see P Goodrich, ‘Poor Illiterate Reason: History, Nationalism, Common Law’ (1992) 1 Social & Legal Studies 7–28. 28 James, Shakespeare’s Troy, 13–14. 29  Richard Weisberg has noted that ‘the carefully crafted utterance (in law and literature) unites the message with the medium—indeed, is so constituted that the medium of linguistic expression is the meaning’; RH Weisberg, Poethics: And Other Strategies Of Law And Literature (New York, Columbia University Press, 1992) 4. Robert Cover argues that ‘In this normative world, law and narrative are inseparably related. Every prescription is insistent in its demand to be located in discourse—to be supplied with history and destiny, beginning and end, explanation and purpose’; RM Cover, ‘The Supreme Court, 1982 Term—Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4–68, 5. 30  AB Grosart (ed), The Complete Poems of Sir John Davies, 2 vols (London, Chatto and Windus, 1876) 1: ‘Memorial-Introduction’, lxxxiii. 31  ibid, Appendix, 120.

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tradition, in which law was recorded not as imperial edict or statute, but as a work of art, derived from nature.32 Equating Davies with the poets and lawgivers of the ancient world, Tate noted of Nosce Teipsum that ‘in old times the poets were the divines, and exercised a kind of spiritual authority amongst the people. Verse in those days was the sacred style, the style of Oracles and Lawes.’33 I shall return to the theme of the common lawyer as divine lawgiver in the course of this chapter. Such was the success of Nosce Teipsum that three editions were published between 1599 and 1608. A manuscript copy from the 1590s was dedicated to Coke, then serving as Attorney-General to Elizabeth I. In the dedicatory verses of this unpublished version of Nosce Teipsum, Davies described Coke as ‘my honourable patron and frend’.34 Davies had much in common with Coke (the pre-eminent apologist for the jurisdictional and constitutional supremacy of common law); this despite the abiding interest of Davies in the theory and practice of continental civil law and (in later life) Davies’s professed admiration for the ‘wisdom and valor’ of Charles I.35 Above all else, Davies and Coke shared express belief that ‘the lawe of nature, which the schoolmen call Ius commune, & which is also Ius non Scriptum, being written only in the hart, is better than all the written lawes in the worlde’.36 These words, written by Davies in the Preface Dedicatory to his Le Primer Report des Cases (1615), bear a striking resemblance to those written by Coke in his report of Postnati. Calvin’s Case (published seven years earlier in Part Seven of The Reports), in which he equates lex æterna or ‘the moral law’ with the law of nature, and claims that it is ‘written with the finger of God in the heart of man’.37

32  On the derivation of law from nature and Coke’s description (in Prohibitions del Roy) of the ‘reason’ of law as artificial, see Introduction, text to nn 6–11, above. 33  Grosart (ed), Complete Poems, 1: Appendix, 120. For an anthology of law-related poetry, see D Kader and M Stanford (eds), Poetry of the Law: From Chaucer to the Present (Iowa, University of Iowa Press, 2010); also, M Stanford, ‘Poets on Lawyers’ (2015) 27 Law & Literature 49–73. 34  S Kelsey, ‘Davies, Sir John (bap 1569, d 1626)’, Oxford Dictionary of National Biography (Oxford, Oxford University Press, 2004); online edn, Jan 2008 [http://www.oxforddnb.com/view/article/7245]. 35  Letter to the Earl of Huntingdon, 1 April 1625, quoted in HS Pawlisch, Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (Cambridge, Cambridge University Press, 1985) 32. In 1592, Davies travelled to Holland, where he met and subsequently expressed great admiration for Paul Merula, Professor of Civil Law and Jurisprudence at Leyden, ibid, 17. On the extensive reliance by Davies on civil law, while Attorney-General for Ireland, see ibid, 161–75. The imposition by Charles I of the forced loan in 1626 was instrumental in Davies’s elevation to Chief Justice of the King’s Bench. His predecessor as Chief Justice, Sir Randolph Crewe, refused to endorse the imposition of the forced loan. Charles dismissed Crewe from office in November 1626, appointing Davies in his place; see The Diary of Sir Richard Hutton, 1614–1639, WR Prest (ed) (1991) 9 Selden Society, supplementary series 66. Davies died the night before he was due to be installed as Chief Justice, on 8 December 1626. Coke led parliamentary opposition to the forced loan, culminating in the Petition of Right of 1628; see Raffield, Images and Cultures, 199–208. 36  J Davies (Sir), Le Primer Report des Cases & Matters en Ley resolves & adiudges en les Courts del Roy en Ireland (Dublin, Iohn Franckton, 1615) ‘A Preface Dedicatory’, sig. *2.r. 37 Coke, Postnati. Calvin’s Case, 7 Reports (1608) 4: 1a, 12b. On Coke as a law reporter, see JH Baker, ‘Coke’s Note-Books and the Sources of His Reports’ (1972)(A) 30(1) The Cambridge Law Journal 59–86. It is ironic, given the professed friendship of Davies and Coke and the well-publicised enmity between Lord Ellesmere and Coke, that Davies should have dedicated Le Primer Report des Cases to the

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A law inscribed only in the heart implies the human capacity to look inwardly, in order to see the divine plan and thereby to understand it. In the first section of Nosce Teipsum, entitled ‘Of humane knowledge’, Davies anticipated by nearly 20 years his comments on Ius non Scriptum in the preface to Le Primer Report. One stanza includes the two lines: ‘We interpret Lawes, which other men have made; / But reade not those, which in our harts are writ.’ In the next stanza he asks: Is it because the minde is like the eye, (Through which it gathers knowledge by degrees) Whose rayes reflect not, but spread outwardly, Not seeing it selfe, when other things it sees?38

He is identifying here the spiritual need for a mirror to the soul; the means whereby the moral law, which guides and directs the juridical conscience, may be revealed. In his speech to Parliament of 21 March 1610, James I employed the identical image to persuade members of the Houses of Lords and Commons that he was acting in all good conscience. He told the assembled parliamentarians that he had summoned them in order to make them ‘a faire Present’ of ‘a Christall Mirror; Not such a Mirror wherein you may see your owne faces, or shadowes; but such a Mirror, or Christall, as through the transparantnesse thereof, you may see the heart of your King.’39 The crystal mirror serves as the conscience of the king, the eye of justice, which alone can read the law inscribed upon the heart.40 The selfportrayal by James I of a reflective king sat uneasily with the providential model of kingship that he sought to enact, based on a selective reading and an idiosyncratic interpretation of Old Testament authority.41 The reference by James I to a mirror, to ‘see the heart of your King’, recalls the deposition scene in Shakespeare’s Richard II. There the King requests a mirror to read ‘the very book indeed / Where all my sins are writ, and that’s my self.’ (4.1.273–74)42 While in Richard II the discovery and revelation of interiority are crucial ­elements in the private, psychological journey made by the king, in Cymbeline they are central to the satisfactory resolution of the plot, and especially to the

Lord Chancellor, Ellesmere. The dedication is explicable though, in terms of the significant part played by Thomas Egerton (prior to his ennoblement as Lord Ellesmere) in securing Davies’s readmission to the Middle Temple in 1601, following his expulsion from the Inn in 1598; see Grosart (ed), Complete Poems, 1: ‘Memorial-Introduction’, xxix–xxxi. 38 

Davies, ‘Of humane knowledge’ in Nosce Teipsum, sig. B3.r. Sommerville (ed), King James VI and I, 179. 40  In his collection of ancient adages, Erasmus cites a proverbial hexameter: ‘Est oculus aequitatis omnia intuens’ (‘It is the eye of justice that notices all things’), quoted in M Stolleis, The Eye of the Law: Two Essays on Legal History (Abingdon, Birkbeck Law Press, 2009) 16. 41  ‘Thou shalt not revile the gods, nor curse the ruler of thy people’ (Exodus 22.28); ‘I have said, Ye are gods; and all of you are children of the most High’ (Psalms 82.6). The interpretation by James I of these passages is discussed in Raffield, Shakespeare’s Imaginary Constitution, 191–94. 42  Nuttall refers to this moment in Richard II as ‘a profound shift in the scope of drama, nothing less than the discovery of human interiority’: AD Nuttall, Shakespeare the Thinker (New Haven, Yale University Press, 2007) 145. 39 

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r­ econciliation of husband and wife, Innogen and Posthumus. The contrast in the later work between ‘that which makes him both without and within’ (1.4.18) is not only a recurring motif in Cymbeline; it also provides the most memorable visual image of the play: the headless corpse of Cloten, dressed in ‘The garments of Posthumus’ (4.2.307). Throughout the play, clothes are conspicuous symbols of falsehood, embodiments of a lie. In the social sphere of the play, they also exert a disproportionate influence over events. Innogen’s odd rebuke to Cloten that the ‘meanest garment’ (2.3.127) of Posthumus is dearer to her even than all the hairs on Cloten’s head inspires her step-brother to imagine his awful revenge: to rape Innogen on the slaughtered body of her husband, while wearing his clothes. There is a sense throughout Cymbeline of imminent social inversion. It is a world in which at the start of the play the Princess, Innogen, informs her father, with ­characteristic candour: ‘Would I were / A neatherd’s daughter, and my Leonatus / Our neighbour’s shepherd’s son.’ (1.1.148–50) The rejection by Innogen of societal status as the defining feature of her life is derided by the status-obsessed Cloten, who pits obedience, ‘which you owe your father’ (2.3.106), against her marriage to Posthumus: ‘The contract you pretend with that base wretch—/ One bred of alms and fostered with cold dishes, / With scraps o’th’court—it is no contract, none.’ (2.3.107–109) The tension between status and contract, embodied by the marriage between Innogen and Posthumus, may be said to represent the crisis of ancient law.43 Ultimately, contract triumphs over status, as Innogen ­relinquishes any claim to the throne which she may have had in favour of her marriage to the commoner, Posthumus.44 Only at the end of the play does her father, ­Cymbeline, finally give her his blessing: ‘My tears that fall / Prove holy water on thee!’ (5.4.268–69). The dislocation of rank is emphasised throughout by Cloten, whose continual references to his high birth become a source of derision, even to the extent that when he introduces himself as ‘A gentleman’ (2.3.72) and ‘a gentlewoman’s son’ (2.3.73), Innogen’s lady-in-waiting replies: ‘That’s more / Than some whose tailors are as dear as yours / Can justly boast of.’ (2.3.73–75) Once again, the dramatic lens focuses upon clothes as the image of falsehood.45 That the repeated references in Cymbeline to clothing (and in particular to the socio-political significance of the sartorial image) were of immense contemporary importance is undeniable. In 1604, James I attempted to extend the boundaries of the royal prerogative by introducing a Bill in Parliament, which sought to repeal all former sumptuary

43 ‘The movement of the progressive societies has hitherto been a movement from Status to Contract’: HS Maine, Ancient Law (London, Dent, 1917) 100. 44  Marcus notes that Innogen ‘would relinquish her kingdom if she could in order to be Posthumus’s equal, and in fact, she never does become queen. Her devotion to her husband always comes first’: LS Marcus, Puzzling Shakespeare: Local Reading and its Discontents (Los Angeles, University of California Press, 1988) 128. 45  Cloten’s ‘insistence on clothing, in fact, prompts one to wonder if the word followed the pattern of “nothing-noting” and thus sound like “Cloten,” a relentless characterological reduction’, James, Shakespeare’s Troy, 159.

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laws so that the King could control sartorial extravagance by Proclamation (as had been customary under Elizabeth I). The Bill was rejected by a large majority in the House of Commons. A new Bill was introduced in the House of Lords in May 1604, and was eventually approved by the Commons: ‘for this reason, for that it repealeth all former laws touching apparel’.46 Legislation repealing all sumptuary laws was finally enacted in 1 Jac. I cap. 25. As Susan Vincent notes: ‘That the regulation of dress was linked to matters of prerogative and constitutional power may be read as evidence of its contemporary seriousness’.47 The contentious issue of rule by Proclamation was a major factor in the worsening of relations between crown and Parliament, and crown and common law, during the first decade of Jacobean rule. In 1610, Coke (then Chief Justice of the Common Pleas) was summoned to appear before the Lord Chancellor and the two senior law officers, in order to give his opinion as to whether the King could rule by Proclamation. His response was typically forthright: ‘the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament.’48 Coke used the opportunity to remind his audience that ‘the King hath no prerogative, but that which the law of the land allows him.’ Coke’s only concession in this respect was that the King might use Proclamations only ‘to admonish his subjects that they keep the laws’.49 Whilst, as Alan Hunt has observed, ‘sumptuary law was directed at the “citizen” as the proper subject of governmental action’,50 it was the particular form which the ‘action’ took—the Proclamation—that marked the conduct here of James I as inconsistent with both the principle of government by consent and the implicit primacy of the social contract. The idea of a contract between governor and governed did not originate with Thomas Hobbes. The premise (to which Coke subscribed) that human law was predicated upon a contract or promise is traceable to Cicero. For Coke and others of his generation, the social contract between magistrate and subject of law represented the concurrence of human reason and divine will. As Victoria Kahn has argued, pre-eminent common lawyers of the early seventeenth century (notably Selden and Coke) constructed ‘a legal fiction of the contracting subject that illustrated a new confidence in the adequacy of human agreements

46  Commons’ Journals, 1: 979, quoted in W Hooper, ‘The Tudor Sumptuary Laws’ (1915) 30 (119) The English Historical Review 433–49, 449; see also, S Vincent, Dressing the Elite: Clothes in Early Modern England (Oxford, Berg, 2003) 117–52. 47  ibid, 119. 48 Coke, Proclamations, 12 Reports (1655) 7: 74, 75. In 1610, the House of Commons presented the King with a petition for grievances, in which the opposition of MPs to rule by Proclamation was articulated; see Hooper, ‘Tudor Sumptuary laws’, 449. 49 Coke, Proclamations, 76. 50 A Hunt, Governance of the Consuming Passions: A History of Sumptuary Law (Basingstoke: Macmillan, 1996) 6; Hunt perceives sumptuary law in terms of Foucault’s thesis that power takes two distinct forms: ‘disciplines’ acting on ‘bodies’, and ‘regulation’ acting on ‘populations’, ibid, 11.

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to secure or constrain intention.’51 Contractarian misgivings notwithstanding,52 there was a lingering sense among the supporters of sumptuary legislation in Jacobean England that (to paraphrase Thomas Carlyle’s Sartor Resartus) clothes were the visible emblems of the ‘invisible bonds’ which define societal relations.53 Hence, in The Gentleman’s Exercise (1612), Henry Peacham invented the following dialogue between two philosophers, Cosmopolites and Eudaemon: Cosmopolites:  I have my selfe met an ordinary tapster in his silke stockins, garters deep fringed with gold lace, the rest of his apparel suteable with cloake lined with velvet, who tooke it in some scorne I should take the wall of him, as I went along in the streete, what shall now our Courtiers and gentlemen thinke of themselves? Eudaemon:  It is a fault in the Magistrate, that so good Laws as we have (God be thanked) in this land be so ill executed, I verily believe if this fellow had lived in the time of Cato Censor in Rome, hee would have beene followed as a monster, and for his punishment have been confined to the bottom of a Sellar during his life.54

For Shakespeare’s Belarius and his two princely charges, Guiderius and Arviragus, the external trappings of the courtier are no more ‘than rustling in unpaid-for silk’ (3.3.24). Guiderius, who is both ‘young prince and young savage’,55 sees Cloten as he is, not as he appears to be. To Guiderius, Cloten is ‘A most uncivil one’ (5.4.292); and so, he ‘cut off ’s head’.56 (5.4.295) The necessity to distinguish between truth and semblance, and personal discovery of the capacity to do so, is expressed with greatest clarity in Cymbeline through the character of Posthumus. Indeed, he mistakenly comments of Innogen: ‘Let there be no honour / Where there is beauty, truth where semblance, love / Where there’s another man.’ (2.4.108–110) It is only

51  V Kahn, Wayward Contracts: The Crisis of Political Obligation in England, 1640–1674 (New Jersey, Princeton University Press, 2004) 33. See also, P Raffield, ‘Contract, Classicism, and the C ­ ommon-Weal: Coke’s Reports and the Foundations of the Modern English Constitution’ (2005) 17(1) Law & Literature 69–96. Selden made the following observation: ‘If our Fathers have lost their Liberty, why may not we labour to regain it? Ans. We must look to the Contract’: J Selden, Table Talk, being the discourses of John Selden, Esq (London, J Tonson, 1696) 44. 52  1610 was the year of ‘the Great Contract’, according to which the crown intended that the House of Commons would grant a substantial, permanent, annual revenue to James I and his immediate family, in return for which the King would abandon certain rights such as those concerning wardship and purveyance. It was during this period of negotiations between crown and Parliament that James I gave the speech in which he claimed to be making a present to Parliament of ‘a Christall Mirror’; see text to nn 39–40, above. See also, SR Gardiner (ed), Parliamentary Debates in 1610 (London, Camden Society, 1862) 1–9, 13–14. 53 ‘First, Man is a Spirit, and bound by invisible bonds to All Men, and secondly, that he wears Clothes, which are the visible emblem of that fact’: T Carlyle, Sartor Resartus: the Life and Opinions of Herr Teufelsdröckh (London, Chapman & Hall, 1885) 42. 54  H Peacham, The Gentlemans Exercise (London, Iohn Browne, 1612) 145. 55  H Granville-Barker, Prefaces to Shakespeare: Cymbeline (London, Nick Hern Books, 1993) 71. 56  Heather James notes the parallels with The Aeneid, in which the decapitation of Priam symbolises the fall of Trojan civilisation: James, Shakespeare’s Troy, 161–62. Virgil’s account of Priam’s death at the hands of Achilles’ son, Pyrrhus, ends as follows: ‘Iacet ingens litore truncus, / Avulsumque umeris caput et sine nomine corpus’ [‘On the distant shore / The vast trunk headless lies without a name’], Virgil, The Aeneid, R Fitzgerald (trans) (London, AA Knopf, 1992) 52, Bk II.557.

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when Posthumus discards his ‘Italian weeds’ (5.1.23), ‘suiting’ himself ‘As does a Briton peasant’ (5.1.24) that he can ‘shame the guise o’th’world’ and ‘begin / The fashion—less without, and more within.’ (5.1.32–33) And it is only when imprisoned and shackled that he acknowledges his conscience to be ‘fettered / More than my shanks and wrists.’ (5.3.102–103) Posthumus, the wronged subject of law, ‘a poor but worthy gentleman’ (1.1.7), banished by Cymbeline for marrying above his rank, twice wrongs his wife: he believes her to have been unfaithful to him, and he orders that she be murdered. It is through self-discovery and the liberation of his conscience that Posthumus is able to acknowledge the great wrong he has done her. In this crucial respect, the story in Book IV of The Aeneid, of Dido’s betrayal by Aeneas, whilst an obvious source for the betrayal of Innogen by Posthumus, is radically revised by Shakespeare. In The Aeneid, the love which Aeneas proclaims for his country, ‘hic amor, haec patria est’,57 impels him to desert Dido, forsaking Carthage for his destiny in Italy. As Heather James has noted with reference to Cymbeline: ‘that emotional betrayal confirms the project of empire-building for Aeneas but jeopardises Posthumus’ prospects.’58 In Cymbeline, the unity and stability of the state is attained only after the realisation by Posthumus that he must atone for his wrongs by returning to Britain from Italy, defending his country, ‘Against the part I come with’ (5.1.25), and declaring his willingness to ‘die / For thee, O Innogen, even for whom my life / Is every breath a death’ (5.1.25–27). If the bestial Cloten personifies the first half of Plautus’s phrase lupus est homo homini, non homo, quom qualis sit non novit [‘a man is a wolf, not a man, to another man, for as long as he does not know who he is’], then Posthumus may fairly be said to embody the phrase in its entirety. The above phrase from Plautus’s Asinaria (line 495) has been variously translated. In his discussion of ‘the origin of the political, the originary social contract and sovereignty’, Derrida translated it as: ‘When one does not know him, man is not a man but a wolf for man’ (it should be noted that this is an English translation of Derrida’s French translation from the original Latin). Derrida emphasised that the phrase has been ‘reinterpreted, reinvested, and mediated by so many others’, including Bacon, Montaigne, Rabelais and (in De Cive) Hobbes.59 In the context of Cymbeline, it is reasonable to suggest that the phrase implies not only knowledge of others, but also knowledge of self. It is the discovery of self that redeems Posthumus, who (prior to his epiphany)

57 Virgil, The

Aeneid, 108, Bk IV.347. Troy, 162. 59  J Derrida, The Beast and the Sovereign, G Bennington (trans), 2 vols (Chicago, University of Chicago Press, 2009) 1: 11. Hobbes freely translated the phrase in the Epistle Dedicatory to De Cive: ‘To speak impartially, both sayings are very true: That Man to Man is a kind of God; And that Man to Man is an arrant Wolfe: The first is true, if we compare Citizens amongst themselves, and the second, if we compare Cities’; T Hobbes, Philosophicall Rudiments Concerning Government and Society (London, R Royston, 1651) ‘The Epistle Dedicatory’, sig. A4.r. 58 James, Shakespeare’s

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has demonstrated that he shares several barbarous traits with Cloten.60 A similar journey of self-discovery is undergone by Iachimo, who (for a wager) convinces Posthumus of Innogen’s infidelity. In the final scene of the play, Iachimo penitently declares: ‘I am down again, / But now my heavy conscience sinks my knee’ (5.4.412–13). Relevant to the early modern juristic thesis that common law was ‘grounded upon the Law of God’61 is the representation in Cymbeline of divine law, which manifests itself in the play not (in the words of Constance Jordan) as ‘some supernatural agent’, but rather as ‘the voice of the individual conscience’.62

III.  Postnati. Calvin’s Case and the Journey of Jacobean Law Characters in Cymbeline undertake arduous physical journeys (in the case of Posthumus, from Cymbeline’s court in Britain to Rome, thence to Milford Haven), the rigours of which mirror their spiritual and emotional journeys. A physical journey of transnational nature had been undertaken by James I, processing through his new kingdom in 1603, as he travelled to London from Edinburgh upon his accession to the English throne. An epic juridical journey from Edinburgh to London was recorded by Coke in Postnati. Calvin’s Case (published in Part Seven of The Reports, in 1608), the consequences of which (both to English law and the body politic of Britain) were profound and long-lasting. Coke may have been inclined to hyperbole, but he was probably correct in asserting that at the time of writing his report of Calvin’s Case this was ‘the greatest case that ever was argued in the hall of Westminster’. Bradin Cormack notes that this was a test case, brought by the crown, which enabled James I to obtain through the courts ‘some of what he had aimed at through a full constitutional union of the two kingdoms’.63 Arrangements concerning the conveyance of English land to a child born in Scotland after the accession of James I were explained to the King by Sir Robert Cecil. Subsequently, a suitable plaintiff was identified.64 The importance of the case was such that Coke

60  As Nuttall suggests, ‘Posthumus and Cloten are eerie doubles’: Nuttall, Shakespeare the Thinker, 343. 61  Lord Ellesmere, quoted in W Dugdale (Sir), Origines Juridiciales or Historical Memorials of the English Laws (London, F and T Warren, 1666) 3. 62  C Jordan, Shakespeare’s Monarchies: Ruler and Subject in the Romances (Ithaca, Cornell University Press, 1997) 72. 63  Coke, 7 Reports, ‘To the Reader’, iia; B Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509–1625 (Chicago, The University of Chicago Press, 2007) 243. On Calvin’s Case and Cymbeline, see MT O’Connor, ‘A British People: Cymbeline and the Anglo-Scottish Union Issue’ in B Cormack, MC Nussbaum and R Strier (eds), Shakespeare and the Law: A Conversation Among Disciplines and Professions (Chicago, The University of Chicago Press, 2013) 231–55. 64  B Galloway, The Union of England and Scotland, 1603–1608 (Edinburgh, John Donald, 1986) 148.

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rewrote his original report, with the intention of gaining a wider readership than that of the legal profession; in so doing, he hoped to create ‘a public report for the present and all posterity’.65 Such was the lasting symbolic importance of the case to Anglo-Scottish relations that the report was republished in Edinburgh in 1705, the year before the Treaty of Union between England and Scotland was ratified, almost 100 years after the original publication of Calvin’s Case in 1608.66 The potential significance of Calvin’s Case to English law was considered by the legal institution to be so great that at the time it was heard, ‘all the Judges of England (as the law doth require) did argue openly, and at large’ in the court of Exchequer Chamber, during Trinity Term, 1608.67 Coke was one of the judges. The plaintiff, Robert Calvin, was born in Edinburgh on the day in which the reign of James I almost came to a precipitate and violent end, 5 November 1605.68 Although neither the facts of the case nor the decision of the court were as explosive as the intended consequences of the Gunpowder Plot, insofar as the outcome permanently affected the constitutional relationship between crown and subject, in jurisprudential terms the significance of Calvin’s Case was immensurable. The juridical narrative is one of alienation preceding conciliation. The plea was uncomplicated. The two-year-old Robert Calvin issued a writ (through his guardians, John Parkinson and William Parkinson) to the effect that the defendants, Richard Smith and Nicholas Smith, had disseised him of the freehold interest in a property in Shoreditch, London.69 The defendants argued that there was no case to answer, as the plaintiff was an alien at English law, having been born in Scotland: his allegiance as a Scottish subject was owed to King James VI of Scotland, not to King James I of England. The fact that both of these kingly titles vested in the same body natural was, the defendants asserted, irrelevant: by virtue of his nationality, Calvin was ‘disabled to bring any real or personal action for any lands within the realm of England’.70 The Court found for the plaintiff, on the grounds

65  Coke, 7 Reports, ‘To the Reader’, iiia. Baker notes of Calvin’s Case that ‘The report of this case ­occupies over one third of the volume’: Baker, ‘Coke’s Note-Books’, 74. 66  That the 1705 publication was intended for a lay readership may be inferred from the information on the title page: ‘Publish’d now for the Information of such as would know the RIGHTS and PRIVILEGES of SCOTS-MEN Residing in England, and of ENGLISH-MEN Residing in Scotland’, The Famous Case of Robert Calvin a Scotsman; as Contain’d in the Reports of Sir Edward Coke, Lord Chief Justice of the Common-Pleas. And as it was Argued in Westminster Hall by all the Judges of England, in the Reign of King James VI. of Scotland, and I. Of England (Edinburgh, J Watson, 1705). 67  Coke, 7 Reports, ‘To the Reader’, viia. 68 ibid, Postnati. Calvin’s Case, 1b. 69  The plaintiff ’s actual surname was ‘Colvill’ or ‘Colville’, rather than ‘Calvin’: PJ Price, ‘Natural Law and Birthright Citizenship in Calvin’s Case’ (1997) 9 Yale Journal of Law & the Humanities 73–145, 81; also, Galloway, Union of England and Scotland, 148. Gardiner notes that the plaintiff ‘was a grandson of Lord Colvill of Culross, whose family name was often written Colvin’: SR Gardiner, History of England: From the Accession of James I to the Outbreak of the Civil War, 1603–1642, 10 vols (Cambridge, Cambridge University Press, 2011) 1: 355, fn 2. ‘Calvin’ was the anglicised version of the family name. 70 Coke, Postnati. Calvin’s Case, 2a; on the legal status of aliens under early modern common law, see JH Baker, An Introduction to English Legal History (London, Butterworths, 2002) 467.

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that the postnati (those subjects born in Scotland after the accession of James VI to the English throne in 1603) were not aliens at English law, but rather were (de facto) English subjects (as well obviously as Scottish subjects), due to the allegiance they owed the body natural of the King (unlike the antenati—those born before the accession of James VI to the English throne—who remained aliens at English law). Fleming CJ supported the argument made by counsel for the plaintiff (Sir Francis Bacon) that ‘The liga is to ye king’s person not to the law. Comon law is to yield to ye law of nature.’71 As Bruce Galloway notes, possibly the most important aspect of the case was the elevated status accorded the law of nature, ‘over and above common or municipal laws.’72 The naturalisation of aliens by an imperial power finds an obvious historical precedent in the reception of strangers by the Roman Empire, a parallel noted by Sir Francis Bacon in his essay entitled ‘Of the True Greatness of Kingdoms and Estates’ (based on a speech which he delivered to the House of Commons in February 1607): ‘all states that are liberal of naturalisation towards strangers are fit for empire … never any state was in this point so open to receive strangers into their body as were the Romans’.73 Bacon was opposed to the idea of national taxation where its main purpose was the funding of wars. He argued that the success of imperial design was more likely to be achieved through transnational commercial enterprise, rather than national belligerence towards neighbouring nationstates (a theme mirrored throughout Cymbeline, not only by the initial refusal of Cymbeline to pay Britain’s ‘tribute’ to Rome; but also, by the continual contrast between the economic imperative of Renaissance Italy and the military ethos of Imperial Rome). The issue of ‘tribute’ was presumably uppermost in the mind of James I when in March 1610 he sought the ‘Aide and Supply’ of Parliament in the form of grant of an annual income, in return for which he would surrender certain ancient rights of the crown.74 Commenting on Bacon’s essay, Jordan notes his observation that the establishment of a British empire comparable in stature to the Roman Empire depended not necessarily ‘on war and conquest. It could grow through commerce’:75 an objective to which ‘strangers’ such as Robert Calvin were likely to make a significant contribution. The naturalisation of the plaintiff notwithstanding, the claim that the decision in Calvin’s Case represented a political merger of England and Scotland is highly contentious.76 As Cormack observes: ‘Scotland and England, though united after

71 

Quoted in Galloway, Union of England and Scotland, 154. ibid, 157. For an alternative analysis of Calvin’s Case, in which natural law is ‘folded … into the authority of the English common law’, see O’Connor, ‘A British People’, 237. 73  F Bacon (Sir), ‘Of the True Greatness of Kingdoms and Estates’ in The Major Works, B Vickers (ed) (Oxford, Oxford University Press, 2002) 397–403, 400. 74  Sommerville (ed,), King James VI and I, 100; on the failure of the ‘Great Contract’ proposed in 1610 by James I, see ibid, Introduction, xxiv–xxv. 75 Jordan, Shakespeare’s Monarchies, 100. 76  ‘The decision [in Calvin’s Case] established that a merger of England and Scotland had taken place to some degree at a political level’: Price, ‘Natural Law and Birthright Citizenship’, 84. 72 

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1603 in the person of the king, remained constitutionally distinct.’77 The idea of political unification of the two kingdoms did not find favour with parliamentarians and, speaking in his role as a judge of the common law, Coke himself expressed reservations about (albeit not outright opposition to) the project. In his reporting of Calvin’s Case, Coke articulated the popular concern that aliens should not be permitted to inherit property in England, on the grounds that ‘then strangers might fortify themselves in the heart of the realm, and be ready to set fire on the commonwealth, as was excellently shadowed by the Trojan horse in Virgil’s Second Book of his Æneid’.78 In other words, that given the opportunity, aliens would infiltrate the realm, exploit its resources, and threaten its very existence as a nation. In his speech to Parliament in 1607, James I had attempted to allay fears such as those expressed above by Coke, claiming that ‘These are foolish and idle surmises. That which you possesse, they are not to enjoy’.79 In the same speech, the King asserted his personal desire for ‘a perfect Union of Lawes … so that there may be in both [kingdoms] but unus Grex & una Lex [‘one Society and one Law’]’;80 but his fervent and prescient wish for union between the two kingdoms was rejected by Parliament, a decision which SR Gardiner attributed to ‘the conservative timidity of the Commons, which dreaded each step into the unknown.’81 For many common lawyers, the King’s wish for the political and juridical amalgamation of England and Scotland summoned the terrible spectre of a legal system founded in the civil law, the prevailing jurisdiction in Scotland. Some feared that a likely consequence of unification would be the annihilation of common law. In the ‘Christall Mirror’ speech to both Houses of Parliament in March 1610, James I defended himself against the charge that he ‘disliked’ the common law or ‘that I would have wished the Civill Law to have bene put in place of the Common Law for government of this people.’82 Despite the above reassurance offered by the King, there is probably some truth in the argument, made by Leah Marcus, that ‘James I preferred Scots law over the English system’, and possibly even that he ‘hoped to mold Britain’s “one law” in accordance with the Roman model’.83 Suspicions concerning the King’s intentions had been aroused by the publication in 1607 of The Interpreter, written by the Regius Professor of Civil Law at Cambridge, John Cowell. In it, Cowell compared the powers of the king to those

77 Cormack, A Power to Do Justice, 228. Regarding Cymbeline, Cormack notes that ‘the play uses the historical question of Britain’s jurisdictional independence from the Roman empire in order to interrogate the relationship, internal to James’s Britain, between the king’s discrete kingdoms and the imperial whole’, ibid, 230. 78 Coke, Postnati. Calvin’s Case, 18b. 79  Sommerville (ed), King James VI and I, 169. Marcus states that ‘members of Parliament conjured up horrific visions of beggarly Scotsmen swarming across the border and devouring England’s prosperity’: Marcus, Puzzling Shakespeare, 123. 80  Sommerville (ed), King James VI and I, 161, 162; see text to n 15, above. 81 Gardiner, History of England, I: 328. 82  Sommerville (ed), King James VI and I, 180. 83 Marcus, Puzzling Shakespeare, 123.

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of his ­continental counterparts, who presided over civilian jurisdictions. The most controversial of these claims was that the royal prerogative bestowed ‘all that absolute height of power that the Civillians call (maiestam, vel potestam, vel iu simperii,) subject only to god’.84 Parliament accused Cowell of betraying the liberties of the people, and the personal intervention of James I was required in order to save Cowell from imprisonment.85 James I distanced himself from Cowell, claiming in the ‘Christall Mirror’ speech that ‘what hee [Cowell] spake of himself therein [The Interpreter] without my direction, I shal always make good’.86 If, as David Harris Willson claimed, one of the principal objectives of The Interpreter was ‘to reconcile the civilian and the common lawyer’,87 then its author singularly failed in his design. It will probably come as no surprise to learn that Coke despised Cowell, whom he is alleged to have given the derogatory title of ‘Doctor Cowheel’.88 More seriously, Coke made a barely veiled attack on Cowell in the preface to Part Ten of The Reports, published in 1614. There, Coke warned civilians not to engage in discourse of any sort on the subject of common law: It is a desperate and dangerous matter for civilians and canonists (I speak what I know, and not without just cause) to write either of the common laws of England which they profess not, or against them which they know not.

He went on to accuse civil lawyers in general ‘of palpable errors and gross mistakings’ before alluding patronisingly to Cowell in particular, when he remarked that ‘our books of law seem to them to be dark and obscure’, a failing which he attributed ‘to their ignorance, who by their sole and superficial reading of them cannot understand the depth of them.’89 The affronted allusion by Coke to the alleged darkness and obscurity of his beloved common law may be traced directly

84  J Cowell, The Interpreter: or Booke containing the signification of words wherein is set foorth the true meaning of all, or the most part of such words and termes, as are mentioned in the law writers (Cambridge, Iohn Legate, 1607) sig. Ddd3.v. For the argument that Cowell ‘was simply careless in discussing politically sensitive matters’, rather than an absolutist, see G Burgess, Absolute Monarchy and the Stuart Constitution (New Haven, Yale University Press, 1996) 78, fn 74; also, G Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1600–1642 (Basingstoke, Macmillan, 1992) 149–55. 85  ER Foster (ed), Proceedings in Parliament, 1610, 2 vols (New Haven, Yale University Press, 1966) 1: 18. For discussion of the complaint made by the House of Commons against Cowell’s claim for unlimited power of the royal prerogative, see P Croft, ‘Sir John Doddridge, King James I, and the Antiquity of Parliament’ (1992) 12 Parliaments, Estates and Representation 95–107, 96. On Cowell and seventeenth-century civil lawyers, see BP Levack, The Civil Lawyers in England, 1603–1641: A Political Study (Oxford, Clarendon Press, 1973); also, DR Coquillette, ‘Legal Ideology and Incorporations I: the English Civilian Writers, 1523–1607’ (1981) 61 Boston University Law Review 1–89. Specifically on civil law and early Stuart absolutism, see Burgess, Absolute Monarchy, 63–90. 86  Sommerville (ed), King James VI and I, 180. 87  DH Willson, King James VI and I (London: Jonathan Cape, 1959) 261. 88  ‘It is said by some writers that when Lord Coke spoke of this learned person, he would call him Dr. Cowheel; this certainly is not in unison with the Judge’s usual gravity; but, if it be true that he uttered such an expression, it was indeed a low jest’: HW Woolrych, The Life of the Right Honourable Sir Edward Coke, Knt, Lord Chief Justice of the King’s Bench, &c (London, J & WT Clarke, 1826) 205. 89  Coke, 10 Reports (1614) 5: ‘To the Reader’, xviia–xviib.

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to The Interpreter, in which Cowell described the indigenous jurisdiction as ‘this auncient palace, that hitherto hath bene accoumpted (howsoever substantiall) yet but darke and melancholy’.90 With more than a degree of disingenuousness, Coke concluded his diatribe against civilians with the following emollient promise: ‘I will not sharpen the nib of my pen against them [civil lawyers], for that I pity the persons, and wish they had more discretion for that I honour their profession.’91 It seems unlikely that Coke was speaking more in sorrow than in anger, if only because the civil law (whose professors were the object of his choleric disparagement, sustained over two pages in the preface to Part Ten of The Reports) had already infiltrated the English legal institution in the form of various prerogative courts. Of these, the greatest threat to the juridical supremacy of the common law courts during Coke’s career as a judge was the Ecclesiastical Court of High Commission (hereinafter, ‘High Commission’). Ecclesiastical commissions had been established on an ad hoc basis in the reigns of Henry VIII and Edward VI, following the Henrician Reformation. Upon the accession of Elizabeth I, the appointments of these tribunals were validated by the Act of Supremacy, 1559 (1 Eliz cap 1). But in 1583 a permanent ecclesiastical tribunal was established under Archbishop Whitgift in order to enforce conformity of doctrine, liturgy and worship within the Church of England. Administered by canon and civil lawyers, High Commission rapidly came to pose a serious threat to the juridical supremacy of the courts of common law. When in 1591 Caudrey’s Case established the competence of High Commission to deprive permanently a rector of his benefice, the ecclesiastical tribunal was asserting powers far beyond those pertaining to spiritual or ecclesiastical jurisdiction; it had extended its remit into matters of temporal concern, traditionally the domain of the courts of common law.92 The 1559 Act of Supremacy had authorised the monarch to establish commissions with ‘all manner of jurisdiction, privileges, and pre-eminences in any wise touching or concerning any spiritual or ecclesiastical jurisdiction’. According to the statute, such commissions were empowered ‘to visit, reform, redress, order, correct, and amend, all such errors, heresies, schisms, abuses, offences, contempts, and enormities whatsoever, which by any (manner) spiritual or ecclesiastical power, authority or jurisdiction can or may lawfully be reformed’.93 The insertion

90 Cowell, The

Interpreter, ‘To the Readers’, sig. *3.r. Coke, 10 Reports, 5: ‘To the Reader’, xviib. 92 Coke, Caudrey’s Case. Of the King’s Ecclesiastical Law, 5 Reports (1605) 3: ia. On this case, and other challenges to the lawful authority of High Commission, see Raffield, Shakespeare’s Imaginary Constitution, 25–27; the constitutional implications of Caudrey’s Case are discussed in J Guy, ‘The Elizabethan Establishment and the Ecclesiastical Polity’ in J Guy (ed) The Reign of Elizabeth I: Court and Culture in the Last Decade (Cambridge, Cambridge University Press, 1995) 126–49, 131–32. 93  Quoted in Coke, Caudrey’s Case, ib. 91 

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of the word ‘lawfully’ was important, as it indicated the intention of Parliament that juridical limits to the authority of the commissions should be imposed. The Act of Supremacy empowered the monarch to establish ecclesiastical commissions by virtue of the royal prerogative, but the same statute did not enable the commissions to act as curiae regis. When High Commission asserted the power to arrest, indict, convict, imprison and otherwise punish alleged offenders, it was arrogating the lawful authority of the common law courts (this is not to mention the procedural irregularities of the ex officio mero prosecutions by High Commission, whereby defendants were compelled to answer questions put to them by commissioners, without either having seen the charges against them or the benefit of legal advice).94 But this matter of crucial constitutional importance was hardly considered in Caudrey’s Case. Coke went so far as to confirm the legitimate jurisdiction and power of High Commission: Now albeit the proceedings and process in the ecclesiastical courts be in the name of the Bishops, &c. it followeth not therefore, that either the court is not the King’s, or the law whereby they proceed is not the King’s law …95

Caudrey’s Case clearly illustrated the conflict of laws that existed between ecclesiastical and secular jurisdictions. Robert Caudrey, ‘Parson of the rectory of South Luffenham’ in Rutland, ‘brought an action of trespass against George Atton’. Prior to bringing the action for trespass, Caudrey had been deprived of his benefice by High Commission, ‘as well for that he had preached against the said book of Common Prayer, as also for that he refused to celebrate divine service according to the said book’.96 The choice facing the court in the action for trespass was stark: if the deprivation of the benefice by High Commission were unlawful, then the action for trespass would succeed; if it were lawful, then the action for trespass would fail. The decision that the commissioners acted lawfully had the effect of elevating High Commission to the status of a legitimate court of first instance. As GR Elton noted, Caudrey’s defeat ‘established the Court of High Commission as a proper and lawful court’.97 94  At the Hampton Court Conference of January 1604, one witness (anonymously described in the account recorded by the Dean of Chester, William Barlow, as ‘one of the Lordes’, and in Howell’s edited transcript as ‘A nameless Lord’) recounted the proceedings of High Commission in the following terms: ‘The proceeding thereby, was like unto the Spanish Inquisition, wherein, men were urged to subscribe more then law required; that by the oath ex officio, they were inforced to accuse themselves; that they were examined uppon 20. or 24. Articles, upon the sodaine, without deliberation, and for the most part against themselves’, W Barlow, The summe and substance of the conference which, it pleased his excellent Maiestie to have with the lords, bishops, and other of his clergie, (at which the most of the lordes of the councell were present) in his Maiesties priuy-chamber, at Hampton Court. Ianuary 14. 1603 [1604] (London, Mathew Law, 1604) 89–90; see also, ‘Proceedings in a Conference at Hampton Court, respecting Reformation of the Church’ in TB Howell (ed), A Complete Collection of State Trials, 21 vols (London, Longman, 1816) 2: 70–92, 86. On the juridical procedures of High Commission, see RG Usher, The Rise and Fall of the High Commission (Oxford, Clarendon Press, 1913) 106–120. 95 Coke, Caudrey’s Case, xxxixb. 96  ibid, ia, iiia. 97  GR Elton (ed), The Tudor Constitution: Documents and Commentary (Cambridge, Cambridge University Press, 1960) 221.

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It is a measure of the political journey made by Coke between the last decade of Elizabethan rule and the first decade of Jacobean rule that in the report of Caudrey’s Case (published while Coke was Attorney-General) he attributed to High Commission the power to try cases only peripherally concerned with spiritual issues, among which he included ‘substraction and right of tithes’;98 whilst in his report of Sir Anthony Roper’s Case in 1607 (over which he presided, as Chief Justice of the Common Pleas) he stated that ‘Substraction of tithes is injury and no crime, but concerns interest and property: and for this the High Commission cannot meddle with it.’99 Equally difficult to reconcile with Coke’s apparent constitutionalist stance, after his appointment to the post of Chief Justice of the Common Pleas, is his comment in Caudrey’s Case that the lawful authority of High Commission derived from the fact that ‘by the ancient laws of this realm, this kingdom of England is an absolute empire and monarchy consisting of one head, which is the King’. Accordingly, ‘the King or Queen of England for the time being may make such an ecclesiastical commission as is before mentioned, by the ancient prerogative and the law of England.’100 Only one year after Coke’s appointment as Chief Justice of the Common Pleas,101 and two years after the publication of Caudrey’s Case in Part Five of The Reports, the absolutist message of the above passage had been replaced by explicit insistence on the jurisdictional sovereignty of common law. The reporting by Coke of two cases in particular (one of which is Sir Anthony Roper’s Case, above), both heard in 1607, indicates a normative shift on his part; if not exactly from absolutism to constitutionalism, then definitely to a position more in accord with the Bractonian maxim lex facit regem [‘law makes the king’],102 than with the civil law maxim quod principi placuit legis habet vigorem [‘the will of the prince has the force of law’].103 In 1604, Coke had referred to Bracton in the preface to Part Four of The Reports, stating that ‘the King is under no man, but only God and the law; for the law makes the King’,104 but this was part of an intellectual dissertation

98 Coke, Caudrey’s Case, ixa; the case was heard in 1591, but Coke’s report of it was not published until 1605. 99 Coke, Sir Anthony Roper’s Case, 12 Reports, 7: 45, 46. 100 Coke, Caudrey’s Case, viiib. 101  Prior to his appointment in 1606 as Chief Justice of the Common Pleas, Coke had held parttime judicial office, as Recorder of Coventry (1585); Recorder of Norwich (1586); Recorder of London (1591–92), a position from which he resigned upon his appointment to the office of Solicitor-General in June 1592; Recorder (for life) of Harwich (1604). See S Taylor, The History and Antiquities of Harwich and Dovercourt, S Dale (ed) (London, C Davis and T Green, 1730) 214–22. 102 H de Bracton, De Legibus et Consuetudinibus Angliae (c 1235), SE Thorne (trans), 4 vols (Cambridge, Mass, Belknap Press, 1968–77) 2: 33; see Chapter 2, n 187, above. 103 Justinian, The Institutes, Bk I, Title II, ‘De Iure Naturali, Gentium et Civili’. The quotation continues: ‘cum Lege Regia, quae de ejus imperio lata est, Populus ei, et in eum omne imperium suum et Potestatem concessit’ [‘for the People by a Law called Lex Regia made a Concession to him of their whole Power’], D Justiniani Institutionem Liber Primus. The First Book of Justinian’s Institutes (London, J Millan, 1749), 28, 29. See E Lewis, ‘King Above Law? “Quod Principi Placuit” in Bracton’ (1964) 39 Speculum 240–69. 104  Coke, 4 Reports (1604) 2: ‘To the Reader’, xixa.

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(dedicated ‘To The Reader’) on the constitutional relationship between crown and common law. By contrast, in 1607, the reports of Sir Anthony Roper’s Case and Nicholas Fuller’s Case demonstrated the resolve of Coke and his brethren in the common law judiciary to apply Bracton’s maxim in an institutional context, effectively seeking to limit the power of the prerogative courts (and thus of civil law) to boundaries defined by the courts of common law.105 Both cases concerned the disputed right of High Commission to imprison those summoned to appear before it. In the former case, Sir Anthony Roper was imprisoned by High Commission, at the suit of the Vicar of Bentley, for his refusal to pay ‘a pension out of a rectory impropriate, of which Sir Anthony was seised in fee’. A writ of Habeas Corpus was served on behalf of Roper, and the judges (who included Coke) were unanimous in their decision that ‘the Commissioners had not authority or commission in the said case’.106 In the latter case, Nicholas Fuller, a barrister, was imprisoned by High Commission for slander and contempt of court. Having obtained writs of Habeas Corpus for two of his clients, both imprisoned by High Commission for their refusal to take the ex officio oath, Fuller proceeded to challenge its status as a legitimate court of law. In King’s Bench, Fuller was vocal in his condemnation of High Commission, arguing not only that commissioners acted unlawfully, ‘taking an ell whereby they had but an ynch granted them’; but also, that their procedures were ‘not of Christ but of Anti-Christ’.107 Judgment in King’s Bench was reserved until the judges of Common Pleas and the Barons of the Exchequer had been convened. Unsurprisingly, given both the intemperate tone of his comments and the threat posed by these to its putative jurisdiction, Fuller was immediately imprisoned by High Commission. A writ of Habeas Corpus was subsequently issued on behalf of Fuller and, according to Coke, the case was decisive in confirming ‘that the Judges of the common law shall determine in what cases the ecclesiastical Judges have power to punish any’. Coke further confirmed that, whilst the publication of ‘heresy’ or ‘schism’ was punishable according to ecclesiastical law; slander and contempt of court were misdemeanours, subject certainly to indictment, fines and imprisonment, but ‘solely determinable and punishable before the Judges of the common law.’108 The decisions in the above cases notwithstanding, it would be mistaken to argue that opposition of common lawyers to High Commission was widespread before

105  On ‘an English legal tradition of discretionary and inseparable prerogatives, confined but not governed by law’, see Burgess, Absolute Monarchy, 83; also, BP Levack, ‘Law and Ideology: The Civil Law and Theories of Absolutism in Elizabethan and Jacobean England’ in H Dubrow and R Strier (eds), The Historical Renaissance: New Essays on Tudor and Stuart Literature and Culture (Chicago, University of Chicago Press, 1988) 200–41. 106 Coke, Sir Anthony Roper’s Case, 45–46. 107  BL Lansdowne MS 1172; also, BL Hatfield MS 124; quoted in RG Usher, ‘Nicholas Fuller: A Forgotten Exponent of English Liberty’ (1907) 12(4) The American Historical Review 743–60, 747. 108 Coke, Nicholas Fuller’s Case, 12 Reports, 7: 41, 42; also, PB Waite, ‘The Struggle of Prerogative and Common Law in the Reign of James I’ (1959) 25(2) The Canadian Journal of Economics and Political Science, 144–52.

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the accession of James I, or even during the first years of his reign. According to research conducted by RG Usher, there were almost equal numbers of common lawyers and bishops serving as commissioners between 1601 and 1608.109 It seems that hardening and polarised attitudes were contingent upon two events near the start of James I’s reign: the Hampton Court Conference of January 1604,110 and the election of Richard Bancroft as Archbishop of Canterbury in November of the same year. Bancroft applied himself enthusiastically to the task of enforcing religious conformity through the offices of High Commission, complaining to James I about the issuing of writs of Prohibition by the common law courts, the effect of which was seriously to restrict the punitive powers of the ecclesiastical courts. Bancroft went so far as to argue ‘that the Judges [of the common law] are but the delegates of the King’,111 and that the King was entitled to sit in judgment in any of his courts, a claim roundly rejected by Coke.112 This returns us to the issue of the body, and the objectification of the human form in both the early modern legal institution and poetic drama of that period. The conflict between temporal and spiritual jurisdictions, which I have described above, was signified (but not resolved) by increased use of the writ of Habeas Corpus, which required that the imprisoned body be presented to the court from which the writ issued, and justification provided for its continued restraint. Where High Commission imprisoned a subject, the courts of common law demanded that legitimate reasons be given for the deprivation of liberty. On numerous occasions during the first decade of Jacobean rule, the judges of Common Pleas convened to discuss the lawful capacity of High Commission to arrest and imprison individuals (Part Twelve of Coke’s Reports alone records no fewer than five such instances between 1607 and 1611). Consistently, their decision was that commissioners ‘could not in any case have punished any delinquent by fine or imprisonment unless they had authority so to do by act of Parliament’, and further: That the High Commissioners cannot by force of the act I El. cap. I. send a Pursuivant to arrest any person subject to their jurisdiction, to answer to any matter before them: but they ought to proceed according to ecclesiastical law.113

By 1610, the year during which Cymbeline was first performed, the related issues of rival jurisdictions, unlawful imprisonment, and Habeas Corpus, had caused a 109 Usher, Rise and Fall of the High Commission, 90; the statistics provided by Usher relate to membership of High Commission for the Province of Canterbury, according to which (in 1601), of 54 members, 13 were bishops and 13 were common lawyers. 110  On the Hampton Court Conference, and relations between James I, the episcopate and the­­ ­‘puritan’ reformers, see F Shriver, ‘Hampton Court Re-Visited: James I and the Puritans’ (1982) 33 Journal of Ecclesiastical History 48–71. 111 Coke, Prohibitions del Roy, 63; there are echoes of the above remark by Bancroft in Bacon’s description of judges as ‘lions under the throne’, Bacon, ‘Of Judicature’ in The Major Works, 446–49, 449. According to the Biblical source from which the image derives, the lions stood at the side of King Solomon’s throne, rather than under it: ‘And twelve lions stood there on the one side and on the other upon the six steps’ (1 Kings 10.20); see Raffield, Shakespeare’s Imaginary Constitution, 201–202. 112 Coke, Prohibitions del Roy, 64–65; see Introduction, text to nn 10–11, above. 113 Coke, If High Commissioners have Power to imprison, 12 Reports, 7: 19; ibid, High Commission, 49.

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juridical standoff between the court of Common Pleas and High Commission. Matters were coming to a head.114 In March 1611, High Commission ordered the indefinite imprisonment of Sir William Chancey, on grounds of adultery, ‘cohabitation with another woman’, and his subsequent refusal to pay maintenance for his wife.115 A writ of Habeas Corpus was served and Chancey was brought from Fleet Prison to appear before the court of Common Pleas. The judges unanimously decided that High Commission had acted unlawfully in ordering Chancey’s imprisonment. In a significant development, counsel for the King ‘did not defend the imprisonment to be lawful’, and Chancey was released on bail, pending the outcome of a meeting between all the judges of the common law and the Archbishop of Canterbury. The court of Common Pleas emphasised its discretion to ‘discharge him of imprisonment’.116 At the subsequent meeting, the Archbishop, George Abbot, complained ‘of prohibitions to the High Commissioners out of the Common Pleas, and the delivery of persons committed by them by Habeas Corpus, and principally of Sir William Chancey’.117 The familiar argument, rehearsed by the Archbishop, was that the powers of High Commission to fine and imprison were granted by 1 Eliz cap 1. Coke’s predictable response was that it was for the judges of the common law, rather than High Commission, to interpret statutes and the powers enshrined therein. An impasse had been reached, as a consequence of which, the Privy Council summoned the judges of Common Pleas, King’s Bench, and the Barons of the Exchequer. Led by the Lord Treasurer (Sir Robert Cecil) and the Lord Chancellor (Lord Ellesmere), the Privy Council argued in favour of High Commission’s right to fine and imprison subjects. The judges of Common Pleas unanimously rejected the argument, while (to the apparent surprise and annoyance of Cecil) the judges of King’s Bench and the Barons of the Exchequer ‘were not unanimously agreed’. Coke records that the judges of Common Pleas were subsequently summoned to appear before the King, who assured them of his determination to reform High Commission, ‘and reduce it to certain spiritual causes’. As reported by Coke, Cecil evasively added that the King promised to reform ‘divers other things … but he [Cecil] did not declare them in particular.’118 There is no doubt that Coke’s intransigence concerning his belief in the unassailable supremacy of the court of Common Pleas contributed towards his ‘elevation’

114  Halliday notes in connection with the liberties granted by Magna Carta that ‘nowhere do the words “habeas corpus” appear. That did not stop law’s high priesthood four centuries later from finding in the charter what they would proclaim were evanescent traces of the writ’, PD Halliday, Habeas Corpus: From England to Empire (Cambridge, Mass, Belknap Press, 2010) 15. 115 Coke, Sir William Chancey’s Case, 12 Reports, 7: 82. 116  ibid, 83. 117 ibid, High Commission, 84. 118  ibid, 86. In his speech to Parliament of March 1610, whilst stating that the jurisdiction of High Commission emanated from ‘the power that is in me’, James I had ‘thought good to restraine it onely to the two Archbishops, where before it was common amongst a great part of the Bishops in England’, Sommerville (ed), King James VI and I, 191.

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in 1613 to the post of Chief Justice of the King’s Bench. Despite the association of King’s Bench with those matters directly affecting the crown,119 Common Pleas was perceived to be the court of greater juridical importance (although the Chief Justice of Common Pleas received a lower annual salary than his counterpart in King’s Bench). Coke himself accurately described Common Pleas as ‘the lock and the key of the Common law’.120 Sir Francis Bacon, who was instrumental in the transfer, argued that the punitive action ‘will be thought abroad a kind of discipline to him for opposing himself in the king’s causes’; he also believed that Coke might ‘think himself near a privy councillor’s place, and thereupon turn obsequious’,121 a belief which turned out to be spectacularly misguided. In the context of the present discussion of the body and its objectification through institutional and theatrical representation, the most striking allusion to a mutilated and emasculated body politic is contained in Cecil’s remark at the above meeting of Privy Council in 1611, that the decision to reform High Commission would leave ‘nothing but stumps remaining’.122 The imagery employed by Cecil is Shakespearean: from the early tragedy of Titus Andronicus to the late romance of Cymbeline, the dismembered human body had served as a potent visual trope, both for a dysfunctional state and a violated society.123 I refer above to the headless corpse of Cloten as a representation of an acephalous body politic.124 A further layer of symbolism attaches to this image through the device of dressing Cloten’s body in the clothes of Posthumus, an impression suggestive of the relationship between governor and governed, and of the conjunction between citizen and body politic. Jordan argues that this macabre spectacle reduces Cloten and Posthumus ‘to an image of the body politic as Cymbeline has shaped it; thus reduced, that body is ready for a new head.’125 The political metaphor of the mutilated body predates Cymbeline;126

119  The primary function of King’s Bench was to hear ‘all pleas of the Crowne; as all manner of treasons, felonies, and other pleas of the Crown which ex congruo, are aptly called propriæ causæ regis, because they are placita coronæ regis’; E Coke (Sir), The Fourth Part of the Institutes of the Laws of England: Concerning the Jurisdiction of Courts (London, M Flesher, 1644) 71. 120  ibid, 99. On the founding of Common Pleas (communia placita) in Magna Carta, see ibid. On the rivalry between Common Pleas and King’s Bench, see Raffield, Shakespeare’s Imaginary Constitution, 55–58; also, Baker, Introduction to English Legal History, 37–52. In 1610, the annual salaries of the Chief Justice of King’s Bench and the Chief Justice of Common Pleas were respectively £238 6s 8d and £201 19s 2d: BL Harleian MS 1857, fo. 9; quoted in SE Thorne, Sir Edward Coke 1552–1952 (London, Bernard Quaritch, 1957) 8. 121  The Works of Francis Bacon, J Spedding, RL Ellis, DD Heath (eds), 14 vols (London, Longmans, 1857–74) 4: 381. 122 Coke, High Commission, 86. 123  On the political symbolism of the rape of Lavinia and the subsequent mutilation of her body in Titus Andronicus, see Hadfield, Shakespeare and Renaissance Politics, 121; also, Raffield, Shakespeare’s Imaginary Constitution, 32. 124  See text to n 23, above. 125 Jordan, Shakespeare’s Monarchies, 94–95. 126  Discussing the priority of the state over any individual within it, Aristotle argues that ‘the whole must be prior to the part. Separate hand or foot from the whole body, and they will no longer be hand or foot except in name, as one might speak of a “hand” or “foot” sculptured in stone’: Aristotle, The Politics, TA Sinclair (trans) (London, Penguin, 1992) 60, Bk I.II.1253a18.

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it was incorporated by Fortescue into his description of a failed, Augustinian society, founded on the promotion of the ‘common good’, but lacking a head: For, as in the Body Natural, the Head being cut off, We no longer call it a Body, but a Trunk; so, a Community, without a Head to govern it, cannot, in Propriety of Speech, be called a Body Politic.127

It is likely that Shakespeare was familiar with Fortescue’s work. First published in Latin in 1545, the English translation (by Robert Mulcaster) of De Laudibus Legum Angliae was published in 1567, under the title A Learned Commendation of the Politique Lawes of England.128 The metaphorical connection made by Fortescue between the headless trunk and the leaderless body politic finds strong dramatic echoes in Cymbeline. The mutilated body, presented with graphic figuration, has connotations of a crippled state. But whilst the interpretation offered by Jordan, above, is (as far as it goes) accurate, it fails to embrace the likelihood that the royal body, enwrapped by the garments of Posthumus, represents more specifically the politically paralysed citizen, incapacitated by an enfeebled and tyrannical state. In the terminology of Habeas Corpus, the body has been ‘delivered up’, but to what use? Liberty of the subject in Cymbeline’s Britain is contingent upon the personal beneficence of the King. At the start of the play, his daughter Innogen is imprisoned at his command for her presumption in marrying beneath her royal status; the King’s faithful nobleman Belarius has been ‘unjustly banish[ed]’ (3.3.100) for an act of treason which he did not commit; and Posthumus is exiled on pain of death for marrying the King’s daughter. The arbitrary power of the King is graphically depicted in Act Five of Cymbeline, in which the captured Posthumus is presented ‘to CYMBELINE, who delivers him over to a JAILER’ (SD 5.3.94). The shackled Posthumus, likened by one of his gaolers to a tethered horse,129 welcomes his imprisonment, describing it as ‘a way, / I think, to liberty.’ (5.3.97–98) In relation to the constitutional and political landscape of early seventeenth-century England, arbitrary imprisonment and detention without trial were issues which led eventually to parliamentary clamour for the recognition of liberty as a fundamental right. But it was to be almost two decades after Cymbeline was written that the inalienable right to personal liberty was entrenched in law, following the Petition of Right of 1628.130 It may be helpful in this context to adopt the analogy

127 Fortescue, De Laudibus, 22. Fortescue refers in Chapter XIII of De Laudibus to St Augustine’s ‘alternative definition of “people” and “commonwealth”’: ‘A people is the association of a multitude of rational beings united by a common agreement on the objects of their love’, St Augustine, City of God, H Bettenson (trans) (London, Penguin, 2003) 890, Bk XIX.c.24. 128  The 1567 edition was published in London by Richard Tottell; a second edition was published in 1573. Barnes notes that in 1513, John Rastell ‘had referred descriptively to Fortescue’s work as “de laudibus legum Anglie”’, TG Barnes, ‘John Fortescue’ in Shaping the Common Law: From Glanvill to Hale, 1188–1688, AD Boyer (ed) (Stanford, Stanford University Press, 2008) 243, fn 2. 129  ‘You shall not now be stolen, you have locks upon you. / So graze as you find pasture.’ (5.3.95–96) 130  For a comprehensive transcript of the parliamentary debates surrounding the Petition of Right, see Proceedings in Parliament 1628, RC Johnson, MF Keeler, M Jansson Cole, WB Bidwell (eds), 6 vols (New Haven, Yale University Press, 1977–78) vol 3.

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between the Stuart dynasty’s rule over England and a historical drama, as drawn by JR Tanner to interpret the momentous political events of the seventeenth century. According to Tanner’s analysis, Act One ended with the execution of Charles I; this was followed by the ‘Interlude’ of the Republic; after which, Act Two ended with the abdication of James II, ‘while the reign of James I is only the Prologue of the same great play.’131 In the first decade of Jacobean rule, liberty was a frail commodity, regarded by the crown (and, as I have indicated, especially by its agents in High Commission) not as an inalienable right, but rather as a conditional phenomenon, the recognition of which was dependent entirely upon the exercise of monarchic discretion. In Cymbeline, the theme of rival jurisdictions is a major narrative thread that affects the central plot concerning Posthumus and his eventual reconciliation with Innogen.132 Cymbeline’s Britain is subjugated to Roman imperial rule, and the King’s refusal to pay his colonial overlords their tribute prompts an invasion of the kingdom by the imperial army. It is as a member of the invading forces that the exiled Posthumus returns to Britain, before defecting to the Britons and playing a major role in defeating the Romans in battle. Following their defeat, he reverts to his Roman costume; his change of clothes—from Roman to Briton, and back again to Roman—reflecting his nebulous status as a citizen of no particular nation, an alien. Posthumus is a stateless subject, who is intent only on being captured and executed by the Britons. He believes that his mistreatment of Innogen merits this fate. But it is at least arguable that Posthumus has himself been mistreated by Cymbeline, who banished him for his temerity in contracting a marriage to the Princess, Innogen. This was despite the service done the state by Posthumus’s father Sicilius and the subsequent adoption of Posthumus as an orphaned child by Cymbeline.133 The eventual reconciliation of Posthumus with Cymbeline marks the end of the former character’s journey from bondage to liberty, and from alien to citizen. The full name of Shakespeare’s hero is Posthumus Leonatus, the possible derivation of which from Postnati has not gone unnoticed by critics.134

131  JR Tanner, English Constitutional Conflicts of the Seventeenth Century, 1603–1689 (Cambridge, Cambridge University Press, 1966) 1. 132  The theme of rival jurisdictions in Cymbeline is addressed in BC Lockey, Law and Empire in English Renaissance Literature (Cambridge, Cambridge University Press, 2006) 160–86. 133  Justification by Cymbeline for the banishment of and subsequent reconciliation with Posthumus is consonant with the claim of James I that under natural law, the father of the family possessed the power of life, death and banishment: ‘as hee finds them give cause of offence, or restore them in favour againe with the penitent sinner: So may the King deale with his Subiects’, Sommerville (ed), King James VI and I, 182. 134 Jordan notes that ‘Posthumus is leonatus and postnatus or the Scottish subject born after the accession of James, who, in the time of the play’s production, is about to be integrated into the English body politic’: Jordan, Shakespeare’s Monarchies, 75. In the Cambridge edition of Cymbeline, Butler argues that the decision in Calvin’s Case stresses ‘subjection rather than citizenship, vesting loyalty not in the state but in the person of the monarch’, Butler (ed), Cymbeline, Introduction, 39. See also, Cormack, A Power to Do Justice, 243; Lockey, Law and Empire, 172. The heraldic significance of Leonatus was noted by Coke in his report of Calvin’s Case, in which he refers to ‘the three lions of England, and that one of Scotland, united and quartered in one escutcheon’: Coke, Postnati. Calvin’s Case, 15a.

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In 1608, the transformation from alien to citizen (in the sense of a naturalised member of the nation), and the symbolic adoption of an orphaned subject by his King, was formally acknowledged by the decision in Calvin’s Case. As I have indicated above, the facts of the case were not the stuff of high drama, concerning as they did a claim by the plaintiff for the recovery of a freehold interest in a property in Shoreditch, of which he was allegedly disseised by the defendants. The great constitutional matter of the purported right to personal liberty was not at issue here. Robert Calvin was not the subject of an ex officio mero prosecution by a tribunal whose legitimacy was questionable. Therefore no challenge could be issued to the authority of a rival jurisdiction in the form of the writ of Habeas Corpus. The case was, in short, a dispute over property ownership. But, as Coke records in the preface to Part Seven of The Reports, ‘never any case within man’s memory, was argued by so many Judges in the Exchequer-chamber, as this was, there having argued the Lord Chancellor and fourteen Judges.’135 Calvin’s Case may well have been, in Coke’s words, ‘the least for the value’; but it was also ‘the weightiest for the consequent … here was magnum in parvo.’136 The juristic significance of Calvin’s Case lies not in its resolution of a dispute over property ownership, but in its depiction both of the king as personification of the state, and of the subject’s constitutional relationship with the monarch. Ultimately, the subject owed allegiance to the body natural rather than the body politic of the King, even though the body natural ‘is ever accompanied with the politic capacity’.137 As a Scot, Calvin did not owe allegiance to the English body politic, but as a subject he owed it instead to the body natural of King James I of England, on the grounds that the latter happened also to be King James VI of Scotland. The decision (distinguishing as it did between fealty to the body politic and the body natural) may effectively have made Calvin a subject of King James I, rather than a citizen of the English state; but in broader terms it had the effect also of realigning the constitutional relationship between sovereign and subject. The theory of the king’s two bodies found its juridical promulgation during the latter half of the sixteenth century in The Reports or Commentaries of Edmund Plowden.138 There, we learn that ‘the king has in him two bodies, viz. a body natural, and a body politic.’139 Numerous discussions of the theory have flowed from Ernst H Kantorowicz’s magisterial study of supernatural kingship and political theology, The King’s Two Bodies.140 It is not my intention here to rehearse those

135 

ibid, ‘To the Reader’, viia. Calvin’s Case, 3b. 137  ibid, 10a. 138  Case of the Dutchy of Lancaster, The Commentaries or Reports of Edmund Plowden, 2 vols (Dublin, H. Watts, 1792) 1: 212; see also, Hales v Petit, ibid, 1: 253; Willion v Berkley, ibid, 1: 223. 139  Case of the Dutchy of Lancaster, ibid, 1: 213. 140  EH Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (New Jersey, Princeton University Press, 1957). For critiques of Kantorowicz, see P Raffield, ‘Time, Equity, and the Artifice of English Law: Reflections on The King’s Two Bodies’ (2014) 12 Law, Culture and the Humanities: http://lch.sagepub.com/content/early/2014/05/25/1743872114534800; L Hutson, ‘Not the King’s 136 ibid, Postnati.

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discussions (which I address in Chapter 2, above), although in passing it is worth noting FW Maitland’s splenetic response (which predated Kantorowicz’s analysis by almost 60 years) to the phenomenon of the king’s two bodies, as related by Plowden: ‘I do not know where to look in the whole series of our law books for so marvellous a display of metaphysical—or we might say metaphysiological— nonsense.’141 Rejecting the dualistic theory of indivisibility, Maitland argued instead that the ‘medieval dualism of Church and State’ was transcended when Henry VIII conflated spiritual and temporal jurisdictions in the person of the King. The conditions were thus created for the emergence of the irrefutable power of the Hobbesian sovereign: ‘The frontispiece of the Leviathan is already before our eyes’.142 Maitland’s scepticism notwithstanding, the theory of the king’s two bodies (especially as developed and related by Coke) allowed the artificial construct of the state to be represented in terms which emphasised the reciprocal relationship between governor and governed: ‘As the ligatures or strings do knit together the joints of all the parts of the body, so doth ligeance join together the Sovereign and all his subjects’.143 I have noted above the linguistic derivation of ‘law’ from ‘ligament’, and the comparison made by Fortescue between the unity of the body politic and the body natural, ‘fitly joined together’.144 The main thematic development of the anatomical analogy, since the publication of both De Laudibus and Plowden’s report of The Case of the Dutchy of Lancaster, was the emphasis placed by Coke in his report of Calvin’s Case on the ‘ligiance’ owed the subject by the monarch. Accordingly, the King has not only to govern but also to ‘protect his subjects, regere & protegere subditos suos; so as between the Sovereign and subject there is duplex & reciprocum ligamen’.145 As described by Coke, the role played by the subject in defining the body politic is an active one, in the Aristotelian sense of ‘owning’ the state and shaping its boundaries.146 In Coke’s definition, the body politic is ‘framed by the policy of man’; whilst in the definition provided by Plowden, it is ‘constituted for the direction of the people’,147 the salient distinction Two Bodies: Reading the “Body Politic” in Shakespeare’s Henry IV, Parts 1 and 2’ in V Kahn and L Hutson (eds), Rhetoric and Law in Early Modern Europe (New Haven, Yale University Press, 2001) 166–98; D Norbrook, ‘The Emperor’s New Body? Richard II, Ernst Kantorowicz, and the Politics of Shakespeare Criticism’ (1996) 10 Textual Practice 329–57; Raffield, Shakespeare’s Imaginary Constitution, 88–101; JR Rust, ‘Political Theology and Shakespeare Studies’ (2009) 6 Literature Compass 175–90. 141 

FW Maitland, ‘The Crown as Corporation’ (1901) 66 Law Quarterly Review 131–46, 134. ibid, 133. 143 Coke, Postnati. Calvin’s Case, 4b. 144  See n 12, above. 145 Coke, Postnati. Calvin’s Case, 4b–5a. Coke suggests in the above phrase that the relationship between king and subject is reciprocal, but it is noteworthy, given his fractious relationship with James I, that alternative translations of duplex and reciprocum are respectively ‘false’ and ‘ebbing’. 146  ‘It follows that the state belongs to the class of objects which exist by nature, and that man is by nature a political animal [zoon politikon]’, Aristotle, The Politics 59, Bk I.II.1253a1. 147 Coke, Postnati. Calvin’s Case, 10b; Plowden, Case of the Dutchy of Lancaster, 213 (emphases added). The Case of the Dutchy of Lancaster was heard in Michaelmas Term 1561, almost 47 years before Calvin’s Case. 142 

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being progression from passive subjection to active citizenship. The metaphor of the epic, literary journey is employed by Coke throughout his report of Calvin’s Case in order to represent this development. Consequently, not only does he refer on three occasions to The Aeneid,148 but also to the journey of St Paul from Caesarea to Rome (via Cyprus, Crete, Malta, Sicily, Rhegium and Puteoli). The voyage was undertaken in order to assert Paul’s right as a Roman citizen to the protection of the Emperor from persecution by the Jews in a province of the Roman Empire (following his arrest in Jerusalem in 57 AD and subsequent imprisonment in Caesarea), and the concomitant right for the charge against him of treason to be heard in a Roman court of law.149 Coke made an explicit comparison between St Paul and the plaintiff in Calvin’s Case: ‘But as St. Paul was Judæus patria et Romanus privilegio, Judæus natione et Romanus jure nationum; so may Calvin say, that he is Scotus patria, & Anglus privilegio, Scotus natione & Anglus jure nationum’.150 Coke was insistent that reciprocal allegiance, binding king and subject, is owed according to natural law: the eternal or moral law which, it was believed (as I have indicated above in relation to Coke and Davies), God inscribed in the hearts of men.151 Citing Book I of Aristotle’s The Politics as authority, Coke proposed the syllogistic argument that actions which are necessary to preserve ‘the society of man’ are condoned by the law of nature; that government and magistracy are prerequisites ‘for the preservation of the society of man’; and that therefore government and magistracy are ‘of nature.’152 In point of fact, Coke presented his reader with two parallel arguments. The first of these was that kingship is ordained by the law of nature, and that allegiance is owed to the body natural of the King. The second argument was that unwritten law or lex terrae is derived from lex eternae and is of immemorial provenance. Therefore it both precedes and supersedes municipal law. It is apparent (at least to Coke) that the command of unwritten law ‘doth extend to him that is pater patriae’,153 the King himself. In the context only of Calvin’s Case, the claim that the King was subject to the constraints of unwritten law is not especially significant. The decision in this case was based solely on

148  See text to n 78, above, for reference to the Trojan Horse in Book II of The Aeneid. In discussion of the power of the King ‘to decide causes according to natural equity’, Coke also quoted from Books VII and V of The Aeneid, respectively: ‘Hoc Priami gestamen erat, cum jura vocatis / More daret populis’ [‘Priam bore this accoutrement when giving laws / To peoples in due form called to assembly’], VII.245–46; and ‘Gaudet regno Trojanus Acestes, / Indicitque forum & patribus dat jura vocatis’ [‘Acestes, Trojan that he was, took pleasure / In his new realm, proclaiming an assembly / And giving laws to the senate now convoked’], V. 757–59; quoted in Coke, Postnati. Calvin’s Case, 13a. 149  The story is narrated in The Acts of the Apostles 21–28. For a collection of essays on the life, writings and theology of St Paul, see JDG Dunn (ed), The Cambridge Companion to St Paul (Cambridge, Cambridge University Press, 2003). Butler notes that in Cymbeline, Posthumus’s ‘upward trajectory is accomplished in a Pauline language of sin, penitence and forgiveness’: Butler (ed), Cymbeline, Introduction, 23. 150 Coke, Postnati. Calvin’s Case, 24a–24b. 151  See text to nn 36–38, above. 152 Coke, Postnati. Calvin’s Case, 13a. 153  ibid, 12b.

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grounds that the plaintiff was bound to a reciprocal relationship of allegiance with the body natural of the King. The wider juridical implications of the claim to a higher authority than statute or imperial edict were not to be realised until the conflict between rival jurisdictions materialised in the cases and disputes discussed above, concerning the powers of High Commission. I turn now to a consideration of natural law and its elevation by the judiciary to the status of supreme constitutional determinant in a debate over the balance of power between crown and common law. As Glenn Burgess has noted, the overriding view of Coke in this respect was ‘that law controlled politics and not vice versa.’154 Thereinafter, I endeavour to demonstrate the significance of natural law as a medium through which the power of the crown might be controlled and circumscribed, that the best interests of the common-weal may be attained.

IV.  The Divine Purpose, Nature and the Equivocal Image Cicero’s encomium to the immutable within time, to the congruency of nature and human reason, and therefore to the primacy of natural law,155 was adopted by early modern common lawyers as a dictum which validated the claim to jurisdictional dominance for a legal system grounded not in statute, but in recta ratio, as reflected in the customary law of England. For example, the title page to Part One of Coke’s Reports includes the following Ciceronian maxim: ‘Lex est certa ratio e mente divina manans’ [‘Law is unerring reason, emanating from a divine purpose’]. For Sir John Davies, no written law had more ‘harmony of reason’ than unwritten, customary law. He describes common law as ‘comming neerest to the lawe of Nature, which is the roote & touchstone of all good lawes, & which is also Ius non Scriptum, & written onely in the memory of man’.156 The ‘roote’ is suggestive of an originary or paternal source. Translated into legal terms, it refers us to the foundation of legitimate jurisdictional authority, and therefore (as far as early modern lawyers were concerned) to its divine purpose. The graphic portrayal of the genealogical tree became a familiar emblematic device in early modern juristic texts, as a means through which the patriarchal structure of law might be communicated. In The First Part of the Institutes, Coke’s seminal treatise on Thomas Littleton’s Tenures, the illustration of a family tree depicts Littleton himself, in judicial robes, lending paternal authority to ‘The degrees of Parentage and of 154 Burgess, Absolute

Monarchy, 166. See Chapter 3, text to n 51, above. 156 Davies, Le Primer Report, ‘A Preface Dedicatory’, sig. *2.r. As Lockey has noted regarding the ‘civilizing’ quality of civil law, civil lawyers also equated civil law with natural law. In the context of Cymbeline, he argues that Cymbeline’s ‘tyrannical use of common-law principles triggers a realisation that Roman rule may still be necessary to the civility of the British state’: Lockey, Law and Empire, 172. 155 

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­ onsanguinitie for the better understanding of our Author’ (see Figure 11).157 As C the subtitle of the Institutes makes clear, Littleton is ‘not the name of a lawyer onely, but of the law it selfe’. For Coke, Littleton was both legitimising father and personification of English law; hence the depiction of him in the Institutes as a pictorial representation of the unimpeachable genealogy of common law. The equation of kingship with arboriculture is an ancient literary device, an elaborate Biblical example of which occurs in The Book of Daniel. There, King Nebuchadnezzar relates to Daniel his dream, in which a tree grew to the heavens, its fruit providing food for all and its boughs lending shelter for the beasts of the field; until ‘an holy one came down from heaven’ (Daniel 4.13) and ordered the tree to be cut down, its branches cut off and its fruit scattered. Daniel interprets the dream, informing Nebuchadnezzar that the tree represented his rule, which ‘reacheth unto heaven, and thy dominion to the end of the earth’ (Daniel 4.22). The King as tree has been cut down to size, literally and figuratively, by an omnipotent God. The vengeful action of the deity reminds Nebuchadnezzar ‘that the most High ruleth in the kingdom of men, and giveth it to whomsoever he will’ (Daniel 4.25). Bacon referred to Nebuchadnezzar’s dream in ‘Of the True Greatness of Kingdoms and Estates’, but chose conveniently to ignore that part of The Book of Daniel which described the disempowerment of the King by a higher power, insisting instead ‘that the trunk of Nebuchadnezzar’s tree of monarchy be great enough to bear the branches and the boughs; that is, that the natural subjects of the crown or state bear a sufficient proportion to the stranger subjects that they govern.’158 James I, in a speech made to Parliament on 9 November 1605, following the discovery of the Gunpowder Plot, employed an arboreal metaphor to convey the idea of the King’s susceptibility to risk: ‘so chiefly Kings, as being in the higher places like the high Trees … are most subiect to the dayly tempests of innumerable dangers’.159 Writing in the same year, John Thornborough interpreted Nebuchadnezzar’s dream of the lopped tree as an allegory of a divided Britain, whose sinful inhabitants God had justly punished, and whose fortunes were restored by the unifying policies of James I: The tree is growne up againe to former beautie, that we might learne to magnifie the King of heaven, as did Nabuchodonosor restored to the honor of his kingdome, to his glory, and beautie againe, to his Counsailours, and Princes, and to the establishment of his Throne with augmented glorie.160 157  E Coke (Sir), The first part of the Institutes of the laws of England. Or, A commentarie upon Littelton, not the name of a lawyer onely, but of the law it selfe (London, the Societie of Stationers, 1628) 19–20. For analysis of the above image of ‘Parentage and Consanguinitie’, see P Goodrich, ‘Visive Powers: Colours, Trees and Genres of Jurisdiction’ (2008) 2 Law and Humanities 213–31: ‘the tree is presented early on in the Institutes, precisely because it is an institutional work, because it institutes the rules of common law. What founds both inheritance of property and judicial authority is the place that is occupied upon the family tree’, 218. 158  Bacon, ‘Of the True Greatness of Kingdoms and Estates’, 400. 159  Sommerville (ed), King James VI and I, 148. 160 J Thornborough, The Ioiefull and Blessed Reuniting the Two Mighty & Famous Kingdomes, England & Scotland into their Ancient Name of Great Brittaine (London, Simon Waterson, 1605) 25.

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The imagery of trees recurs throughout Cymbeline, serving as a natural counterpoint to another pervasive image in the play, the artifice and superficiality of clothing, to which I refer extensively above.161 Cymbeline himself is described by the soothsayer as ‘The lofty cedar’ (5.4.451), and his two sons (abducted by Belarius at an early age, but reunited with their father at the end of the play) are ‘thy lopped branches … now revived, / To the majestic cedar joined, whose issue/ Promises Britain peace and plenty.’ (5.4.452–56) The image of the ‘lopped’ tree, the ‘joining’ of the two princes and the prosperity contingent upon this felicitous reunion, simultaneously recall Nebuchadnezzar’s dream and Fortescue’s allegory of the grafted scion of the pear tree (the grafting image is more explicitly presented in the play by Posthumus, when he reads the ‘tablet’ lain upon his breast by the ghosts of his family: the ‘lopped branches’ are ‘jointed to the old stock, and freshly grow’ (5.3.204–06)). Despite both the soothsayer’s description of Cymbeline as a lofty cedar and that particular tree’s Biblical association with sovereignty,162 trees (and more generally the natural world) are usually associated in the play not with kingship, but with an alternative model of governance, one at odds with the artifice and duplicity of the royal court. Psalms 92 and 104 both refer to the cedar tree. Verse 12 of the former is quoted by Coke in the preface to Part Two of The Reports, in which he employs the arboreal simile of Psalm 92 to convey an impression of the common law and its ‘sages’ as fair, righteous, and prosperous: ‘the just shall flourish like the palm-tree; and spread abroad as the cedars of Libanus.’163 It was inexpedient of Coke to omit the next verse from Psalm 92, with its subtle reference to the correlation between natural law, divine law and juridical procedure: ‘Those that be planted in the house of the LORD shall flourish in the courts of our God’ (Psalms 92.13). But it is in The Book of the Prophet Ezekiel that the story in Cymbeline of the two lopped branches, Guiderius and Arviragus, being transplanted from the royal court to the Welsh mountains finds its Biblical source: Thus saith the Lord GOD; I will also take of the highest branch of the high cedar, and will set it; I will crop off from the top of his young twigs a tender one, and will plant it upon an high mountain and eminent … (Ezekiel 17.22)

Until Act Three, Scene Three, the action of Cymbeline alternates between the royal court and the city of Rome. Then, approximately halfway through the play, the location shifts from an urban to a rural setting. Belarius, Guiderius and Arviragus

161 

See text to nn 45–57, above. See Butler (ed), Cymbeline, 245, note to line 451; also, PM Simonds, Myth, Emblem and Music in Shakespeare’s ‘Cymbeline’: An Iconographic Reconstruction (Newark, University of Delaware Press, 1992) 241–43. On the grafting metaphor, as employed by Fortescue in De Laudibus, see Chapter 3, text to nn 22–27, above. 163  Coke, 2 Reports (1602) 1: ‘To the Reader’, xi: on the previous page of the preface to Part Two, Coke enjoins his readers to ‘cast thine eyes upon the sages of the law’, ibid, x. ‘The trees of the LORD are full of sap; the cedars of Lebanon, which he hath planted; Where the birds make their nests’, Psalms 104.16–17. 162 

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emerge from a cave at the foot of a mountain in Wales. Immediately, the audience is introduced to a world of pagan worship. Stooping beneath the roof of the cave as they enter for the first time, Belarius informs the princes that ‘this gate / Instructs you how t’adore the heavens, and bows you / To a morning’s holy office.’ (3.3.2–4) The divinity to whom Belarius and the princes pay homage is Nature herself, as Belarius reveals when proclaiming the virtues of his two royal charges: ‘O thou goddess, / Thou divine Nature, how thyself thou blazon’st / In these two princely boys!’ (4.2.168–70). The use of the heraldic term ‘blazon’ is significant, as it is suggestive both of flawless genealogy and of the primacy of the sign (rather than the text) in establishing the legitimacy of kingship and therefore also of law.164 The rural exile of the princes is simultaneously a locus amoenus, an idyllic refuge from the court and the city, and a dislocated site of Ovidian terror in which the King’s stepson is killed and decapitated, his ‘clotpoll’ dispatched to the river by Guiderius,165 and his headless corpse transformed into a simulacrum of Posthumus, over which Innogen mourns. But it is a place also in which veneration for custom is represented through the performance of religious rites, albeit of a non-Christian nature. The pagan form of religious ritual is especially apparent in the elaborate funeral rite enacted by the two princes in honour of Cloten and the drugged Innogen, disguised as the page Fidele, and mistaken for dead by Belarius, Guiderius and Arviragus. As Martin Butler notes of the instruction given by Guiderius to his brother about the positioning of Fidele’s body (‘we must lay his head to th’east’ (4.2.254)), this was a historically accurate representation of pagan, Celtic custom.166 The worship of nature; the continual references to trees (Belarius describes himself as ‘a tree / Whose boughs did bend with fruit’ (3.3.60–61); the description by Posthumus of himself as a tree: ‘Hang there like fruit, my soul, / Till the tree die’ (5.4.263–264); and the location of the rural scenes in Wales, are all suggestive of Druids and Druidical practices. In a passage describing the ancient presence of Druids on the Welsh island of Anglesey, the seventeenth-century

164  In her discussion of Cymbeline, Marcus makes a similar observation, concerning the power of the sign: ‘Even out in remote Wales, far from the world of the court, there are emblematic “texts” to be interpreted, natural lessons in morality imprinted upon the landscape’, Marcus, Puzzling Shakespeare, 120. For a late-Elizabethan account of the juridical significance of the heraldic symbol, see J Ferne, The Blazon of Gentrie (London, Toby Cooke, 1586). Ferne emphasised the primacy of genealogy as a determinant of legitimacy in both the individual and the state: ‘Gentlemen of bloud and coat-armor perfect, might only challeinge the benefit and priviledges of that law, called Ius Gentilitatis’, ibid, 86. On Ferne and the Inns of Court, see Chapter 1, text to nn 89–97, above; also, P Raffield, ‘Metamorphosis, Mythography, and the Nature of English Law’ in P Goodrich and V Hayaert (eds), Genealogies of Legal Vision (London, Routledge, 2015) 79–103, 91–93. 165  The violent death of Cloten and the disposal of his head ‘into the creek / behind our rock’ (4.2.150–51) recalls the death of Orpheus at the hands of the Ciconian women, as related by Ovid in Book XI of Metamorphoses: ‘the waters of the Hebrus received his head and lyre’, Ovid, M ­ etamorphoses, MM Innes (trans) (Harmondsworth, Penguin, 1955) 247, Bk XI; see D Armitage, ‘The Dis­memberment of Orpheus: Mythic Elements in Shakespeare’s Romances’ (1987) 39 Shakespeare Survey 123–33, 132. 166  Butler (ed), Cymbeline, 193, note to 4.2.254.

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a­ ntiquary William Jones recalls the land of caves, rocks and forests, inhabited by Belarius and the princes in Cymbeline: They dwelled in rockes and woods and dark places, and some places in our lande had there names from them, and are called after there names to this day; and the Iland of Mone or Anglice is taken to be one of there cheefest seats in Brittain, because it was a solitary Iland full of wood, so that it was so darke by reason of that wood, and not inhabited of any but themselves …167

Public interest in the history of the Druids had been aroused in late Elizabethan England by the publication in English of two major works from the classical world. The first of these, in 1590, was the translation by Arthur Golding of Julius Caesar’s Commentarii de Bello Gallico.168 In his discussion of the Gallic Druids in Book Six of The Gallic Wars, Caesar emphasised both their sacerdotal and judicial roles: they were ‘occupyed about holy things’; but also ‘if there be any murder committed, if there ryse any controversie concerning inheritance or bounds of land, they take the matter into their hands’.169 In 1601, the translation by Philemon Holland of Pliny’s Natural History was published. The mystical affinity between the Druids and ordo naturae, the order of nature, was noted by Pliny in Book 16: These Priests or Clergiemen chose of purpose such groves for their divine service, as stood only upon Okes; nay they solemnize no sacrifice, nor perform any sacred ceremonies without branches & leaves thereof, so as they may seeme well enough to be named thereupon Dryidae in Greeke; which signifieth as much as the Oke-priests.170

The sacred and juridical roles of the Druids were related: the one was contingent upon the other. They were progenitors, guardians and enforcers of a divinely ordained, unwritten law. Jurists such as Coke and Selden were alert to the parallels that might usefully be drawn between Druids and common lawyers. For Selden, these learned and holy men (whom he termed ‘Gownmen’) ‘were the Interpreters and Guardians of the Laws.’171 In Coke’s idiosyncratic representation of the

167  W Jones, ‘Mr Jones his Answeares to Mr Tate’s Questions’ in T Hearne (ed), A Collection of Curious Discourses, Written by Eminent Antiquaries Upon several Heads in our English Antiquities (Oxford, Thomas Hearne, 1720) 213–14. Selden noted that ‘Among the Western Hills of Denbeigh, a County in North-Wales, there is a place, as I read in our famous Chorographer, commonly called Ceregy-Drudion, that is, the Druids Stones’: J Selden, The Reverse or Back-Face of the English Janus, R Westcot (trans) (London, Thomas Basset & Richard Chiswell, 1682) 14. 168  In the interlude of ‘Pyramus and Thisbe’ in A Midsummer Night’s Dream, Shakespeare parodied the verse style of Arthur Golding, whose translation into English of Ovid’s Metamorphoses was published in 1567; see AB Taylor, ‘Golding’s Ovid, Shakespeare’s “Small Latin”, and the Real Object of Mockery in “Pyramus and Thisbe”’ (1990) 42 Shakespeare Survey 53–64. Golding’s translation of Medea’s speech in Metamorphoses, Bk VII.197–209, was the main source for the speech of Prospero in The Tempest, beginning ‘Ye elves of hills, brooks, standing lakes, and groves’ (5.1.33–50); see Chapter 5, text to n 125, below. 169  J Caesar, The Eight Bookes of Caius Iulius Cæsar conteyning his martiall exployts in the Realme of Gallia and the Countries bordering upon the same, A Golding (trans) (London, Thomas Este, 1590) 70. 170  Pliny the Elder, The Historie of the World. Commonly called, The Naturall Historie of C. Plinius Secundus, P Holland (trans) (London, Adam Islip, 1601) 497. 171 Selden, English Janus, 12.

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origins of English law, provided in the preface to Part Three of The Reports, the author drew both on Caesar’s Gallic Wars and Pliny’s Natural History to imply a genealogical link between the ancient Druids and early-modern common lawyers, the Gallic Druids being ‘nothing else but a very colony taken out from our British Druides, as Caesar himself in the same place affirmeth’.172 The devotion of the Druids to the natural world and, indeed, the derivation of the word Druid from the Greek ‘Drys’ (Δρύς), meaning ‘Oak’, made them especially appropriate as icons and archetypes of a jurisprudence which honoured the primacy of lex naturae, lex terrae and lex non scripta. The sacerdotal role of the judge was inherited by Christian, common lawyers from their pagan, Druidic forebears.173 The interest expressed in the Druids by Coke, Selden and other English jurists of the early modern period is entirely consistent with the belief, first propounded by Fortescue, that common law was ‘deduced from the Law of Nature’; a sentiment echoed by Coke in his report of Calvin’s Case, where he stated ‘that the law of nature is part of the law of England’.174 After his death in 1634, Coke’s extraordinary life and career were celebrated in the Elegy on Sir Edward Coke by Robert Codrington. In an otherwise unremarkable panegyric, noteworthy is the use made by the author of natural imagery to convey the impression of his subject as a titanic figure, literally a force of nature. Codrington transforms Coke into a forest oak, a symbol not only of nature, but also of Britain, and of Britain’s Druids. In a thinly veiled reference to Coke’s dismissal as Chief Justice of the King’s Bench in 1616, Codrington depicts an Arcadian scene in which Coke’s downfall was engineered by vengeful gods: The Bolts were flying, and the Brow of heaven Did ake with thunders; when this feareles oake That stood the fury of each dreadfull stroke, Wrapt in the clowdes, shooke his loose scattring lockes, And hardly wearyed by a thousand shocks Forgave the Gods his fall, his leaves did rove Ore the sadde circuit of the trembling Grove, And falling whispered to the trees more nigh, They live unsafe that are exalted high.175

Coke is portrayed in Codrington’s verse not as the Chief Druid, but as an object of Druidical veneration, the oak itself. The image recalls the description by Belarius of himself ‘as a tree / Whose boughs did bend with fruit’ (3.3.60–61), until his unjust banishment by Cymbeline: ‘but in one night, / A storm or robbery, call it

172 

Coke, 3 Reports, 2: ‘To the Reader’, ixa. root of sacerdos is not however Christian. Its stem refers rather to someone who gives or transmits the sacra (sacra-dare), literally one who introduces others to sacrifices’: P Goodrich, ‘The Pythagoras Complex’ (2006) 4 Juridikum 216–23, 217. See Introduction, n 29, above. 174 Fortescue, De Laudibus, 29; Coke, Postnati. Calvin’s Case, 12b. 175  R Codrington, Elegy on Sir Edward Coke (1634) BL Add MS 37484, ff 18.v–19.r. 173  ‘The

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what you will, / Shook down my mellow hangings, nay, my leaves, / And left me bare to weather.’ (3.3.61–64)176 If it is accepted that Belarius in particular and the rural scenes of Cymbeline in general are representative of a jurisprudence in which the law of nature is paramount, then it is apparent that an alternative model of governance—of absolute power exercised absolutely—is represented in the court scenes. One scene that has especial, contemporaneous resonance with the kingship of James I is Act Five, Scene Three, in which the sleeping Posthumus is visited in his prison cell by the ghosts of his family, following which, ‘JUPITER descends in thunder and lightning, sitting upon an eagle; he throws a thunderbolt’ (SD 5.3.156). Commenting on this scene, Marcus notes that in 1607 James I ‘descended upon Parliament like Jove with his “thunderbolts”’,177 to berate MPs for their lack of enthusiasm for the project of uniting England and Scotland under one kingdom. The appearance of a deus ex machina—of Jove descending to the stage on a mechanical eagle—is a stylistic reference by Shakespeare to the masque, a highly visual form of dramatic entertainment, of which the early Stuarts were particularly enamoured.178 Indeed, as part of the celebrations surrounding the installation of James I’s eldest son Henry as Prince of Wales in June 1610, members of the royal family and the court participated in a masque, written by Samuel Daniel, entitled Tethys Festivall: ‘Wherein Tethys Queene of the Ocean, and wife of Neptune, attended with thirteen Nymphs of severall Rivers, is represented’.179 In it, the 10-year old Duke of York (later, Charles I) played the part of Zephirus, ‘in a short robe of greene satin imbrodered with golden flowers with a round wing made of lawnes on wyers, and hung down in labels. Behind his shoulders two silver wings.’180 In the course of the masque, James I was presented with a trident, and the Prince of Wales with ‘a rich sword and skarfe’.181 The image of Jupiter descending from the heavens on an eagle, used by Shakespeare in Cymbeline, was replicated in the masque Tempe Restored, performed ‘by the Queene, and fourteen Ladies’ at Whitehall in 1632, in the presence of Charles I: And the Queene seated under the state by his Maiestie, the Scene is againe changed into a shady wood, and a new Heaven appeares differing in shape and colour from the other. In the midst of which Iove sitting on an Eagle is seene hovering in the ayre with a glory beyond him.182 176  Oaks are mentioned twice in Cymbeline: the Queen describes Britain ‘As Neptune’s park, ribbed and paled in / With oaks unscalable and roaring waters’ (3.1.19–20); and the funeral song contains the Line: ‘To thee the reed is as the oak.’ (4.2.266) 177 Marcus, Puzzling Shakespeare, 118. 178  See RM Smuts, Court Culture and the Origins of a Royalist Tradition in Early Stuart England (Philadelphia, University of Pennsylvania Press, 1987); also, Chapter 5, text to nn 170–212, below. 179  S Daniel, ‘Tethys Festivall’ in Anon, The Order and Solemnitie of the Creation of the High and mightie Prince Henrie, Eldest Sonne to our sacred Soveraigne, Prince of Wales (London, Iohn Budge, 1610) sig. E2.r. 180  ibid, sig. E3.r–sig. E3.v. 181  ibid, sig. E4.r. 182  A Townshend, Tempe Restord. A Masque Presented by the Queene, and fourteen Ladies, to the Kings Maiestie at Whitehall on Shrove-Tuesday. 1631 (London, R Allet and G Baker, 1632) 14. Henrietta Maria

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Heather James complains that the descent of Jupiter in Cymbeline is an instance of ‘awkward hyperbole’ and the play’s ‘clumsiest theatrical display’.183 But Marcus is nearer the mark in suggesting that the representation by Shakespeare of Jupiter descending from the heavens ‘in thunder and lightning, sitting upon an eagle’ serves as a persuasive visual metaphor of the clumsy, theatrical manner in which James I descended on Parliament in the years immediately preceding the first performance of Cymbeline, ‘to lecture them when his plans for the nation went unheeded or misunderstood.’184 James I made an interesting allusion to the supreme god of the classical world when he described himself to Parliament as lex loquens [‘a speaking law’] and Luce clarius [‘clearer than Light’].185 In classical mythology, Jupiter was not only the chief deity, but also the god of thunder and lightning, and of daylight. The association of James I with the ancient world was consonant with the endeavour of the King to equate himself with Augustus Caesar, in whose imperial reign Cymbeline is ostensibly set. Caesar’s ambassador to Britain, Caius Lucius, eventually obtains a ‘wonted tribute’ (5.4.460) from the British King, initiating a lasting peace in which ‘A Roman and British ensign wave / Friendly together.’ (5.4.478–79) Like Posthumus in Cymbeline, Augustus believed himself to have experienced dreams that were dispatched by Jupiter.186 The desire for a historical parallel to be drawn by his subjects with the Pax Romana of Augustan Roman Empire formed the rationale of many pronouncements by James I on imperial themes, notably that the proposed Union between England and Scotland was ‘a Conquest as may be cemented by love, the onely sure bond of subiection or friendship’.187 In his speech to Parliament, on its opening day in March 1604, James I boasted that the first of the blessings, ‘which God hath ioyntly with my Person sent unto you, is outward peace: that is, peace abroad with all forreine neighbours’.188

played the part of ‘divine Beauty’ and entered from ‘above all in a Chariot of gold-smithes works richly adorned with precious Iemmes’, ibid, 12; see K Britland, Drama at the Courts of Queen Henrietta Maria (Cambridge, Cambridge University Press, 2006). 183 James, Shakespeare’s

Troy, 179. Shakespeare, 119. Sommerville (ed), King James VI and I, 161. In 1613, James I attended The Masque of the Inner Temple and Gray’s Inn by Francis Beaumont, in which members of the Inns paid homage to the chief deity by playing the roles of ‘Olympian Knights’ and ‘Jupiter’s Priests’; F Beaumont, The Masque of the Inner Temple and Grayes Inne, presented before his Maiestie, the Queenes Maiestie, the Prince, Count Palatine and the Lady Elizabeth their Highnesses, in the Banquetting house at White-hall on Saturday the twentieth day of Februarie, 1612 [1613] (London, George Norton, 1613) sigs. C4.v, D.r; for discussion of Beaumont’s masque, see Raffield, Images and Cultures, 143–44. 186  See W Eck, The Age of Augustus (Oxford, Blackwell, 2007) 123–36; D Shotter, Augustus Caesar (London, Routledge, 2005) 63–73. 187  ‘Speech to Parliament, 31 March 1607’ in Sommerville (ed), King James VI and I, 162. Jones notes of James I that ‘Beati pacifici was his motto; and he loved to be called, and poets duly obliged him, the second Augustus: the pacific emperor under whom Christ was born’; Jones, ‘Stuart Cymbeline’, 90. 188  Sommerville (ed), King James VI and I, 133. On James I as peacemaker, see Willson, King James VI and I, 271–87; Willson argues that the foreign policy of James I was ‘the most shameful failure of his reign’, for the simple reason that the King was misguided in ‘his belief that he could be a champion 184 Marcus, Puzzling 185 

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This section concludes with a discussion of the ends to which rhetorical devices are employed in Cymbeline, and the implications of the different modes of representation. The above analysis of arboreal imagery prompts further consideration of the uses to which Shakespeare put metaphor. The image of the trunk is presented in various guises (incorporating several visual puns), at intervals throughout the play. The first occasion is in Act Two, Scene Two, when a trunk—that is to say, a large wooden box, normally used to store clothes—is brought onto the stage, from which Iachimo emerges to spy upon the sleeping body of Innogen. ‘To th’trunk again’ (2.2.47), he informs the audience, having noted the ‘cinque-spotted’ (2.2.38) mole on Innogen’s breast and removed the bracelet from her wrist while she sleeps. As he returns to the trunk, Iachimo makes an abstruse crossreference to a different kind of trunk. He sees that Innogen has been ‘reading late/ The tale of Tereus’ (2.2.44–45). The story of Tereus, who raped his sister-in-law Philomel and cut out her tongue to prevent her from revealing his crime, was narrated by Ovid in Book VI of Metamorphoses. It provided Shakespeare with the source for one of the most gruesome scenes in the canon: the rape of Lavinia and the subsequent mutilation of her body in Titus Andronicus.189 In contemplation of the terrible and pitiful sight of Lavinia, her uncle Marcus Andronicus asks: ‘what stern ungentle hands / Hath lopped and hewed and made thy body bare / Of her two branches, those sweet ornaments’? (2.3.16–18). Lavinia, her branches lopped, has metamorphosed into a trunk. In Shakespeare’s Imaginary Constitution, I discussed the objectification of the violated Lavinia, her tongue severed, as ‘the mute embodiment of a discordant society, in which the intrinsic reason of natural law has been replaced by the irrationality of tyranny.’190 From the awful moment of her grisly mutilation until her violent death near the end of the play, Lavinia remains a graphic symbol of an inharmonious body politic, in which the voice of the populace is silenced. Following the reference to ‘The tale of Tereus’ in Cymbeline, the next time a trunk appears (in Act Four, Scene Two) it is in the form of a human trunk: the headless body of Cloten. The human body was employed extensively by jurists of the early modern period as a metaphor for the body politic, notably Coke’s description of the body politic in Calvin’s Case: a visceral mass of ligaments, tendons and bone.191 More precisely, the body politic that Coke described was a metonym, or even a synecdoche: the part—the human body—standing for the whole, the body of people that makes up the state. Most important, in the context of Cloten’s

of Protestantism and at the same time a friend of Spain’; ibid, 273. Jones notes of the year in which Cymbeline was first performed, that ‘1610 was the only year, of this period, in which all the European states were at peace’, Jones, ‘Stuart Cymbeline’, 96. 189 On the Philomel story as a paradigm of, or precedent for, Titus Andronicus, see J Bate, Shakespeare and Ovid (Oxford, Clarendon Press, 1993) 101–17; also, Chapter 3, text to n 14, above. 190 Raffield, Shakespeare’s Imaginary Constitution, 32. 191  See text to n 143, above; also, text to nn 12–15, above. On Calvin’s Case, Cymbeline and ‘The Ligaments of Empire’, see Cormack, A Power to Do Justice, 242–53.

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trunk, is the fact that the body has no head. The subliminal connection between the trunk in which Iachimo is concealed and the trunk of Cloten’s body is that they are items of stage furniture, by definition devoid of life. Shakespeare is punning on the word ‘trunk’ here, to suggest that the body politic in Cymbeline’s Britain is a theatrical property: a ‘prop’, antithetical to the idea of a living body politic.192 The final variation on the ‘trunk’ image is ‘The lofty cedar’ (5.4.451), its branches lopped. This is a complex and troubling image. I note above the cedar’s Biblical association with sovereignty, but an alternative reading suggests that a ‘lofty cedar’ with lopped branches (much like an acephalous body) is unnatural, dysfunctional and inappropriate. In Cymbeline, the cedar tree is not representative of lex naturae and lex terrae, but is suggestive rather of the artifice of the royal court. Given that the two sons of Cymbeline were brought up by Belarius in the Welsh mountains, there is a degree of pretence in the reconciliation of Arviragus and Guiderius with their father: two lopped branches grafted onto the trunk, ‘To the majestic cedar joined’ (5.4.455). Throughout Cymbeline, metaphors are grafted onto the narrative, and (as indicated in the image of the lofty cedar) their purpose is to question and undermine accepted meaning and understanding, while simultaneously issuing new meaning. The mixed metaphors—lofty cedars, lopped branches, headless bodies and wooden trunks—emphasise the unnaturalness, artifice and duplicity, not only of the political institutions that they represent, but also of rhetoric itself.

V.  The Nationalist Ends of Myth The various models of governance depicted in Cymbeline typify salient features of the Jacobean state, the aspiration to peaceful imperial expansion exemplified by the paradigm of Augustan Pax Romana being only one of them. The exercise of arbitrary, judicial power by Cymbeline reflects belief expounded on behalf of James I that he was entitled to sit in judgment in his own courts, a claim which led Coke to reply that ‘the King in his own person cannot adjudge any case’.193 There are echoes too in Cymbeline’s claustrophobic and nepotistic royal court of the corrosive favouritism, which was a distinctive feature of the court of James I.194

192  On the significance of the theatrical prop in early modern English law, and the centrality of synecdoche to the English legal system, see G Watt, ‘The Law of Dramatic Properties in The Merchant of Venice’ in P Raffield and G Watt (eds), Shakespeare and the Law (Oxford, Hart Publishing, 2008) 237–51. 193 Coke, Prohibitions del Roy, 63–64; see text to n 112, above. 194  Heather James notes that ‘The atmosphere of Cymbeline’s uneasy and gossipy court recalls that of James I’, James, Shakespeare’s Troy, 179. On the court of James I, see also Smuts: ‘Although the traditional portrait of a slovenly, homosexual king presiding over a debauched court is grossly exaggerated and one-sided, it does contain a significant core of truth’, Smuts, Court Culture, 28. On the ‘favourite’ in Elizabethan and Jacobean England, see JH Elliott and LWB Brockliss (eds), The World of the Favourite (New Haven, Yale University Press, 1999).

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The expansive application of the royal prerogative by Cymbeline finds an obvious parallel in the rule of King James. In Cymbeline, prerogative rule contrasts dramatically with the law of nature to which Belarius and the two princes conform in the mountains of Wales. The unwritten law which they venerate comes closest of all juridical forms in the play to that described by Lord Ellesmere: ‘the Common Laws of England … extend themselves to the original Law of Nature, and the Universal Law of Nations, and that they are not originally Leges scriptae’.195 Finally, there is the clumsy intervention of Jupiter himself, ‘the Thunderer, whose bolt, you know, / Sky-planted, batters all rebelling coasts’ (5.3.159–60), descending to earth on a mechanical eagle, described by his subjects as a god, albeit one whose ‘celestial breath / Was sulphurous to smell’ (5.3.178–79). It may be with this image of Jupiter in mind that Heather James states: ‘Cymbeline treads a fine line between affirmation and parody of James I’s absolutist claims’.196 All this is to say nothing of the more portentous claim made by James I, that ‘Kings are not onely GODS Lieutenants upon earth, and sit upon GODS throne, but even by GOD himself they are called Gods’.197 Against these models, derived as they are from ancient and sometimes mythical sources, is pitted a site of governance that was synonymous with another aspect of Jacobean expansionism: the realm of commerce, represented in Cymbeline by Renaissance Italy. The Italy of Iachimo is a cosmopolitan location,198 in which Italians, Dutch, French, Spaniards and British all barter, draw up articles and exchange covenants. It is a place in which everyone and everything has a price. To borrow the words of Sir Francis Bacon, it is a state that has demonstrated its fitness for empire through its liberal approach to the naturalisation of strangers or aliens. The incorporation of these subjects into the state facilitates the means through which imperial expansion is enabled, not by war and conquest, but by commerce.199 It is a place in which the adult Robert Calvin, plaintiff and hero of Calvin’s Case, would have thrived. In The Birth of Tragedy, Nietzsche argued that ‘The state itself has no unwritten laws more powerful than the mythical foundation that guarantees its connection with religion and its growth out of mythical representations.’200 According to the

195 

Quoted in Dugdale, Origines Juridiciales, 3. Troy, 188. 197  Sommerville (ed), King James VI and I, 181. For the argument that institutional authority in early modern England was commonly accepted as divinely ordained, see C Russell, ‘Divine Rights in the Early Seventeenth Century’ in J Morrill, P Slack and D Woolf (eds), Public Duty and Private Conscience in Seventeenth-Century England: Essays Presented to GE Aylmer (Oxford, Clarendon Press, 1993) 101; also, C Russell, The Causes of the English Civil War (Oxford, Clarendon Press, 1990) 65–68, 145–49. For an alternative perspective to Russell’s, see JP Sommerville, Politics and Ideology in England, 1603–1640 (London, Longman, 1986) 3–4. 198  It may or may not be relevant to the theme of Jacobean imperial design in Cymbeline, that ‘Iachimo’ is an anglicised version of ‘Giacomo’, which translates from Italian as ‘James’; see Butler (ed), Cymbeline, ‘List of Characters’, 78. 199  See text to nn 73–75, above. 200  F Nietzsche, The Birth of Tragedy, S Whiteside (trans), M Tanner (ed) (London, Penguin, 2003) 109. Eric Heinze makes a similar observation, specifically in relation to Cymbeline: ‘Empires work not 196 James, Shakespeare’s

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Apolline theory of artistic order, as propounded by Nietzsche, myth (from the Greek muthos, meaning a story or tale) performs the crucial, societal function of unifying ‘an entire cultural movement.’201 The references throughout Cymbeline to Milford Haven reinforce the image of a British state the identity of which is founded in the mythography of British kingship.202 As Heather James notes of the Welsh port (which she erroneously ascribes to England) at which Posthumus lands with the invading Roman army, ‘the translatio imperii is advancing surely on its westering course to Milford Haven—the site of Henry Tudor’s landing in England’.203 In claiming the throne as Henry VII, Henry Earl of Richmond was fulfilling his destiny (prophesied by his ancestor, Cadwallader, last of the British kings) that he should inherit the crown as champion of an ancient British nation, subjugated for a thousand years to dominion first by Saxon and then by Norman kings.204 The myth was revived by James I as he sought to represent himself as a second Brutus, ‘The Northerne worlds united lawfull King’.205 In Cymbeline, Shakespeare presents a myth of nationhood, the allusion of which to aspects of Jacobean rule is compelling, not least as a veiled critique of absolutist models of governance on which the kingship of James I was founded. The play provides a distorted image of a dysfunctional society, at the centre of which was an acephalous body politic.206 ‘The ruin speaks that sometime / It was a worthy building’ (4.2.353–54): it remained to be seen whether Guiderius, heir to Cymbeline’s throne, could unite his subjects and restore the fortunes of this broken realm.

only through law, but through imagery and icons’, E Heinze, ‘Imperialism and Nationalism in Early Modernity: the “Cosmopolitan” and the “Provincial” in Shakespeare’s Cymbeline’ (2009) 18 Social & Legal Studies 373–96, 388. 201 Nietzsche, Birth

of Tragedy, 109. Cymbeline, ‘The name Milford occurs seven times, Milford Haven nine times’, Jones, ‘Stuart Cymbeline’, 93. 203 James, Shakespeare’s Troy, 169. 204  See Brinkley, Arthurian Legend, 1–2. 205 Herbert, A Prophesie of Cadwallader, sig. H.v. 206  ‘Cymbeline himself, dominated by the Queen, is witless for most of the play. The British body politic is therefore figuratively without a head and, in the imagery of the plot, no more than a trunk’: Jordan, Shakespeare’s Monarchies, 71. 202 In

5 The Tempest: The Island of Law in Jacobean England I.  Cannibals, Colonies and the Brave New World So far in this study, the thematic centrality of the island as an intrinsically symbolic phenomenon of political and juristic importance has been regarded as non-existent, largely irrelevant, or of passing significance only. Imaginary and actual islands have figured throughout the book, but hitherto their relevance has been peripheral or tangential. The heightened world of Love’s Labour’s Lost is situated (notionally, at least) in an enclosed realm within continental Europe, specifically the kingdom of Navarre. But the kingdom of academe (in Shakespeare’s Navarre and elsewhere) is less an island than a cloister, bounded and restricted by institutional rather than natural constraints. Macbeth (with the exception of a single ‘English’ scene: Act Four, Scene Three) inhabits a Scottish kingdom, which forms part of the British Isles. But the action of the play is predicated upon the psychopathy of its eponymous anti-hero, rather than upon its geographical and political situation as a separate but constituent part of an island. The action of The Winter’s Tale is divided between the island of Sicilia and the landlocked state of Bohemia (which, in Shakespeare’s story, has a coast). But within the play, the narrative significance of Sicilia as an island resides largely in its importance to the plot as a romantic device: it provides the mise-en-scène from which Perdita can be lost and (eventually) found. Cymbeline is located in the island of Britain, and Innogen refers to her insular home as ‘In a great pool a swan’s nest.’ (3.4.138)1 But the isolated status of Cymbeline’s Britain is less important to the central, political themes of the play than is the subjection of the island (over which the British king nominally reigns) to imperial rule by its Augustan conqueror. In this respect, Cymbeline represents at one level a realistic (albeit fictionalised) depiction of actual, historical events. To a considerable extent, the major political themes of The Tempest (of which autocratic modes of governance; subjection of the populace to oppressive rule by

1 

See Chapter 4, text to nn 19–21, above.

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an occupying power; and civic rebellion, usurpation and juridical responses to treason and traitors, figure largely) are lent sharp definition by the physical limitations of its insular setting, described by the editors of the Arden edition of the play as ‘its restricted geography’.2 The specific location of the island transcends realism, although we know that it is to be found (according to the text of the play) somewhere in the Mediterranean Sea, between Tunis and Naples. Prospero sailed precariously into exile on the island, following usurpation of the dukedom of Milan by his brother Antonio (supported by the King of Naples, Alonso). The banished magus and his three-year-old daughter Miranda were put aboard ‘A rotten carcass of a butt’ (1.2.146),3 prepared for the duke by the agents of his usurping brother. In his long exposition of the plot to oust him, Prospero gives no indication of the duration or distance of the sea voyage, merely informing Miranda that ‘Here in this island we arrived’ (1.2.171). The storm at sea with which the play starts compounds the sense of mystery as to the precise location of the island. King Alonso’s fleet was returning to Naples from Tunis, following the marriage there of his daughter Claribel to the King of Tunis. The distance from Tunis to Naples is some 300 nautical miles and was a familiar trading route in the early modern period.4 And yet, according to Antonio, Tunis is ‘Ten leagues beyond man’s life’ (2.1.243), and Claribel will receive no news from Naples ‘till new-born chins / Be rough and razorable’ (2.1.245–46), suggesting that it was a journey of many years rather than one of several days. So, where is ‘Prospero’s’ island? In the course of the play, there is only one explicit, geographical referent of the New World, and that is the island of Bermuda. In the second scene of The Tempest, Ariel reminds Prospero that Alonso’s ship is ‘in the deep nook, where once / Thou call’dst me up at midnight to fetch dew / From the still-vexed Bermudas’ (1.2. 227–29). The sole, explicit reference to Bermuda apart, there are numerous

2  W Shakespeare, The Tempest, VM Vaughan and AT Vaughan (eds) (London, Bloomsbury Arden Shakespeare, 2011) Introduction, 4. See C Breight, ‘“Treason doth never prosper”: The Tempest and the Discourse of Treason’ (1990) 41 Shakespeare Quarterly 1–28, 1; also, C Jordan, Shakespeare’s Monarchies: Ruler and Subject in the Romances (Ithaca, Cornell University Press, 1997) 167, fn 34. 3  Miranda was slightly less than three years old when they fled Milan: ‘for then thou wast not / Out three years old’ (1.2.40–41). All references to the text of the play are from W Shakespeare, The Tempest, D Lindley (ed) (Cambridge, Cambridge University Press, 2013). Milan is landlocked: the nearest seaport, opening onto the Ligurian Sea, thence to the Tyrrhenian and Mediterranean Seas, is Genoa. Ariel informs Prospero that, following the storm at the start of the play, ‘the rest o’th’fleet’ (1.2.232), which accompanied Alonso’s ship from Tunis, ‘are upon the Mediterranean float / Bound sadly home for Naples’ (1.2.234–35). The possibility that the location of the island is somewhere off the coast of North Africa is compounded by the information provided by Prospero that the mother of Caliban, the witch Sycorax, was banished to the island from Algiers (1.2.263–66); see EB Gilman, ‘Sycorax’s “Thing”’ in D Kezar (ed), Solon and Thespis: Law and Theater in the English Renaissance (Indiana, University of Notre Dame Press, 2007) 99–123. 4  Apart from the mercantile links between Tunis and Naples, there were strong political and religious affiliations between the two cities during the early modern period; see PA Mazur, ‘A Mediterranean Port in the Confessional Age: Religious Minorities in Early Modern Naples’ in T Astarita (ed), A Companion to Early Modern Naples (Leiden, Koninklijke Brill NV, 2013) 215–34, 223.

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allusions to the New World. Caliban twice mentions the Patagonian god, Setebos;5 Trinculo discourses on the practice of transporting indigenous inhabitants of the New World to England, for purposes of exhibition: ‘When they will not give a doit to relieve a lame beggar, they will lay out ten to see a dead Indian’ (2.2.29–30);6 and upon seeing Alonso and members of his royal court, Miranda exclaims: ‘O brave new world / That has such people in’t!’ (5.1.183–84).7 It was the wrecking of the ship Sea Venture on the rocky coastline of Bermuda in 1609 that provided the narrative for William Strachey’s True Reportory of the Wracke, and Redemption of Sir Thomas Gates with which, scholars are agreed, Shakespeare was almost certainly acquainted at the time of writing The Tempest.8 Sea Venture set sail from Plymouth on 2 June 1609, bound for the English colony of Virginia, to which outpost the Virginia Company of London had recently appointed Sir Thomas Gates as Lieutenant Governor of Jamestown.9 Gates returned to England in September 1610, with the manuscript of True Reportory. Although not published until 1625 (in Samuel Purchas, Hakluytus Posthumus, or, Purchas his Pilgrimes), the manuscript was circulated around London upon Gates’s return. Another account of the wreck of the Sea Venture was provided by Silvester Jourdain in A Discovery of the ­Barmudas, Otherwise Called the Ile of Divels (published in 1610), the opening paragraph of which finds its theatrical parallel in the opening scene of The Tempest: We were taken with a most sharpe and cruell storme upon the five and twentieth day of Iuly, Anno 1609. which did not only separate us from the residue of our fleete, (which

5  ‘My dam’s god Setebos’ (1.2.373) and ‘O Setebos, these be brave spirits indeed!’ (5.1.260). Orgel notes that the name Setebos ‘appears in accounts of Magellan’s voyages’: W Shakespeare, The Tempest, S Orgel (ed) (Oxford, Oxford University Press, 2008) Introduction, 33. On the relevance of travel literature to The Tempest, see C Frey, ‘The Tempest and the New World’ (1979) 30 Shakespeare Quarterly 29–41. 6  See AT Vaughan, Transatlantic Encounters: American Indians in Britain, 1500–1776 (Cambridge, Cambridge University Press, 2006) 1–56; also AT Vaughan, ‘Trinculo’s Indian: American Natives in Shakespeare’s England’ in P Hulme and W Sherman (eds), ‘The Tempest’ and its Travels (Philadelphia, University of Pennsylvania Press, 2000) 49–59. 7  Nuttall notes of these words that they ‘are deeply ironized by their context … she [Miranda] is looking at the worst of the old world coming towards her in the shape of assorted courtly criminals’: AD Nuttall, Shakespeare the Thinker (New Haven, Yale University Press, 2007) 363. Of the same lines, Kermode states that Miranda ‘does not know that the beauteous are likely also to be corrupt’: F Kermode, Shakespeare’s Language (London, Penguin, 2001) 299. 8  A performance of The Tempest took place at the Palace of Whitehall in the presence of James I, on 1 November 1611, although it is likely that it had been performed publicly by the King’s Men before this date. In February 1598, the Privy Council licensed the Lord Chamberlain’s Men (later, the King’s Men) and the Admiral’s Men to perform plays in public, on the grounds that ‘they might be the better enhabled and prepared to shew such plaies before her Majestie as they shalbe required at tymes meete and accustomed’: quoted in EK Chambers, The Elizabethan Stage, 4 vols (Oxford, Clarendon, 1923) 4: 325; on the licensing of playing companies, see P Raffield, Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of Law (Oxford, Hart Publishing, 2010) 113–14. On the date of composition for The Tempest, and the influence over Shakespeare of Strachey’s epistolary account in True Reportory, see Lindley (ed), The Tempest, Introduction, 2, 9–10; Vaughan and Vaughan (eds), The Tempest, Introduction, 6; also, AT Vaughan, ‘William Strachey’s “True Reportory” and Shakespeare: a Close Look at the Evidence’ (2008) 59 Shakespeare Quarterly 245–73. 9 For an account of the ill-fated voyage and its commission by the Virginia Company, see WF Craven, The Virginia Company of London, 1606–1624 (Leopold Classic Library, 1964) 16–24.

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were eight in number) but with the violent working of the Seas, our ship became so shaken, torne, and leaked, that shee received so much water, as covered two tire of hogsheads above the ballast; that our men stoode up to the middles, with buckets, baricos, and kettles, to baile out the water, and continually pumped for three dayes and three nights together, without any intermission; and yet the water seemed rather to increase, then to diminish: in so much that all our men, being utterly spent, tyred, and disabled for longer labour, were even resolved, without any hope of their lives, to shut up the hatches, and to have committed themselves to the mercy of the sea, (which is said to be mercilesse) or rather to the mercy of their mighty God and redeemer …10

During the storm, Sir George Somers (Admiral of the Virginia Company) took the helm of the Sea Venture, steering it onto rocks and (like Alonso’s ship) into a ‘deep nook’, in order to prevent it foundering at sea. All 150 men aboard survived the wreck. The island was uninhabited, ‘by any Christian or Heathen people, but ever esteemed, and reputed, a most prodigious and inchanted place’. According to Jourdain, it was a magical island, but the spells it cast were of the darkest sort (as the subtitle of his account—the Ile of Divels—suggests), ‘which made every Navigator and Mariner to avoide them as Scylla and Charibdis; or as they would shunne the Devill himself ’.11 As discussed in the final section of this chapter, the means by which the English colonists of the New World sought to exorcise these devilish enchantments was through the imposition and enforcement of English law. In The Tempest, there is one allusion to the New World that takes the form not of a line in the play but rather of a character, Caliban, described as ‘a salvage and deformed slave’.12 Caliban, the name of Prospero’s ‘poisonous slave, got by the devil himself ’ (1.2.320) is an anagram of ‘Canibal’, a word that (to English ears) was immediately suggestive of otherness: strange and hitherto unknown, until reports from the New World of America filtered through to the Old World of Europe via the envoys of imperial expansion. As Montaigne observed in his essay ‘Of the Caniballes’, barbarism was in the eye of the beholder: ‘I finde (as farre as I have beene informed) there is nothing in that nation, that is either barbarous or savage, unlesse men call that barbarisme, which is not common to them.’13 The 1603 translation by John Florio of Montaigne’s essay was influential not only in determining Shakespeare’s complex, nuanced rendering of the character of Caliban,14 and of the relationship between him and his master Prospero (and other 10  S Jourdain, A discovery of the Barmudas, otherwise called the Ile of Divels: by Sir Thomas Gates, Sir George Sommers, and Captayne Newport, with divers others (London, Roger Barnes, 1610) 4–5. 11  ibid, 8–9. 12  The description of Caliban as ‘salvage and deformed’ is in the ‘Names of the Actors’, provided by the First Folio: Mr. William Shakespeares Comedies, Histories, & Tragedies. Published according to the True Originall Copies (London, Isaac Iaggard, and Ed Blount, 1623) 19. 13  M de Montaigne, ‘Of the Caniballes’ in The Essayes Or Morall, Politike and Millitarie Discourses of Michaell de Montaigne, J Florio (trans) (London, Edward Blount, 1603) 100–107, 101. For discussion in the same essay of the relative merits of art and nature, see Chapter 3, text to n 32, above. 14 See AT Vaughan and VM Vaughan, Shakespeare’s Caliban: A Cultural History (Cambridge, Cambridge University Press, 1991) 47–48.

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colonists of the island); it was also the source for the speech, made by ­Gonzalo, in which the ‘honest old councillor’ (as described in the list of characters) speculates on the subject of the utopian, sovereign-less state of which he imagines himself to be king.15 Arthur Kirsch argues that the overall ‘anti-sentimental but humane’ tenor of The Tempest is derived from Shakespeare’s intimate acquaintance with the essays of Montaigne.16 It is the ‘humane’ aspect of the play that is of especial interest in this chapter. That is to say, the imposition of humanitas, civitas and societas (based on the mores of the classical world and its neoclassical descendants) onto communities hitherto unaffected by European notions of civilisation. Specifically, I consider the early modern project of English jurisdictional imperialism: the colonisation by common law of lands with pre-existing, juridical arrangements of one sort or another.17 I use the words ‘colonisation’ and ‘lands’ in their most generic and symbolic sense, referring of course to the conquest of the New World (and nearer to home, of Ireland) by England; but my primary interest in these terms lies in their importance as signifiers of institutional expansion by the professors of common law, for whom discursive and linguistic singularity were defining elements of English jurisprudence. Just as the island in The Tempest can be figured as a landscape of the moral, intellectual and political imagination, so too the New World of Elizabethan and Jacobean common law might more accurately be described as a landscape of the mind,18 than as a physical territory on (and off) the east coast of the Americas. I aim to explore ideas of Jacobean imperial expansion, not only in the context of translatio imperii and the westward search for dominion, but in relation also to the intellectual ambition of Jacobean common lawyers to extend into new worlds the jurisdiction of the particular jurisprudence that they professed. As noted in

15  Gonzalo informs Alonso, Sebastian and Antonio that were he king of the island: ‘no kind of traffic / Would I admit; no name of magistrate; / Letters should not be known; riches, poverty, / And use of service, none; contract, succession, / Bourn, bound of land, tilth, vineyard, none; / No use of metal, corn, or wine, or oil; / No occupation, all men idle, all’ (2.1.145–51). The equivalent passage in Florio’s translation of ‘Of the Caniballes’ reads: ‘no kinde of traffike, no knowledge of Letters, no intelligence of numbers, no name of magistrate, nor of politike superioritie; no use of service, of riches or of poverty; no contracts, no successions, no dividences, no occupation but idle; no respect of kinred, but common, no apparrell but naturall, no manuring of lands, no use of wine, corne, or mettle’, Montaigne, ‘Of the Caniballes’, 102. Gonzalo’s speech continues: ‘And women too, but innocent and pure; / No sovereignty –’ (2.1.152–53). The speech in which Prospero affirms that ‘The rarer action is / In virtue, than in vengeance’ (5.1.27–28) is derived from the opening passage of Montaigne’s ‘Of Crueltie’: ‘Me thinks vertue is another manner of thing, and much more noble than the inclinations unto goodnesse, which in us are ingendered’, Montaigne, ‘Of Crueltie’ in The Essayes, 243–49, 243; see A Kirsch, ‘Virtue, Vice, and Compassion in Montaigne and The Tempest (1997) 37 Studies in English Literature 337–52. 16  ibid, 338. 17  On the depiction in The Tempest of imperialism, see T Marshall, ‘The Tempest and the British Imperium in 1611’ (1998) 41 The Historical Journal 375–400; also, B Fuchs, ‘Conquering Islands: ­Contextualizing The Tempest’ (1997) 48 Shakespeare Quarterly 45–62. 18  Gillies describes the way in which Shakespeare understood the New World in similar terms: ‘There is little sense of realistic landscape in The Tempest, and that landscape varies according to the mind that perceives it’, J Gillies, ‘Shakespeare’s Virginian Masque’ (1986) 53 A Journal of English Literary History 673–707, 702.

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Chapter 1, the discursive imperialism of early modern English law determined to a great extent the success of its expansionist ambitions.19 In this respect, the restatement by Stephen Greenblatt of Antonio de Nebrija’s claim ‘that language has always been the partner (“compañera”) of empire’ is crucial.20 Regarding the possible derivation of the name Caliban, the editors of the Arden edition of The Tempest have noted that traces of the word are to be found also in ‘Calibia’, as described by Richard Knolles in his Generall Historie of the Turkes (published in 1603, and one of the historiographical sources for Shakespeare’s Othello, written some six years before The Tempest).21 According to Knolles, Calibia was one of several Moorish cities along the Tunisian coast that was subject ‘to the government of Muleasses king of TUNES’.22 Indeed, the name Caliban may even have derived from two other foreign-sounding names in Historie of the Turkes: ‘Cali-Bassa the younger (a great courtier)’ and ‘Calibeius’.23 The editor of the Oxford edition of The Tempest recalls for the reader the reported phenomenon of Amerindian cannibals, by noting that the name Caliban may be related to the so-called ‘Island Caribs’ (also known as Kalinago) of the Lesser Antilles in the Caribbean Sea, who were reported to be anthropophagi.24 It is also possible that ‘Caliban’ derives from ‘Cariban’, the language spoken by the mainland Caribs. These people, known as ‘Kalina’, were (and still are) the indigenous inhabitants of the northeastern, coastal region of South America.25 It is apparent from the above 19 

See Chapter 1, text to n 13, above. S Greenblatt, ‘Learning to Curse: Aspects of Linguistic Colonialism in the Sixteenth Century’ in S Greenblatt, Learning to Curse: Essays in Early Modern Culture (London, Routledge, 2007) 22–51, 23. 21  Vaughan and Vaughan (eds), The Tempest, Introduction, 32. The editors also suggest that the name may derive from any of the following words: the Arabic Kalebon, meaning ‘vile dog’; the Hindi Kalee-ban, meaning a satyr of Kalee; or the Romany caulibon, meaning black or dark things, ibid. The first recorded performance of Othello was at the Banqueting House in Whitehall, on 1 November 1604. 22  R Knolles, The Generall Historie of the Turkes, from the first beginning of that Nation to the rising of the Othoman Familie (London, Adam Islip, 1603) 704; Knolles describes the other cities on the North African coast as ‘SUSA, MAHOMETA, MONASTERIUM, SFAXIA and AFRICA’, ibid, 705. 23  ibid, 429, 450. Cali-Bassa was a courtier to Mehmed II, first emperor of the Turks (d 1481); Calibeius was a courtier to Bayezid II (son of Mehmed II), second emperor of the Turks (d 1512). It is possible that the usurpation of the Dukedom of Milan in The Tempest was inspired by the following account, from Historie of the Turkes: ‘After the death of Charles the French king, Lewes the twelfth of that name having obtained that kingdome, writ himself also duke of MILLAN, as discended of one of the daughters of Io. Galeatius first duke of MILLAN: in which his supposed right he was fully resolved to make warre upon Sfortia then duke of MILLAN’, ibid, 457. 24  Orgel (ed), The Tempest, Introduction, 25. On the existence of Irish anthropophagi, recorded by John Speed in The Theatre of the Empire of Great Britaine, see text to n 143, below. Proclaiming Caliban as a citizen of the islands off the north-east coast of South America, Retamar states that ‘Caliban is our Carib’: RF Retamar, ‘Caliban: Notes Towards a Discussion of Culture in Our America’, L Garafola, DA McMurray, R Márquez (trans) (1974) 15 The Massachusetts Review 7–72, 16. See L Allaire, ‘The Caribs of the Lesser Antilles’ in SM Wilson (ed), The Indigenous People of the Caribbean (Gainesville, University of Florida Press, 1997) 180–85. Davis and Goodwin state that ‘the so-called “Island Caribs” were Arawakan speakers, probably longtime residents of the Windward Islands whose cultural and linguistic connections with the mainland Caribs probably were the products of contacts related to trade and alliance’: DD Davis and RC Goodwin, ‘Island Carib Origins: Evidence and Nonevidence’ (1990) 55 American Antiquity 37–48, 37. 25  See G Collomb and F Tiouka, Na’na Kali’na: Une Histoire des Kali’na en Guyane (Cedex Matoury, Ibis Rouge Éditions, 2000). 20 

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reports that the Caribbean and the Mediterranean vie for historical and literary ownership over the provenance not only of Caliban, but also of the island over which Prospero presides. In ‘Of the Caniballes’ Montaigne created similar confusion for the reader over the location of the island of Atlantis. He cited Solon (as narrated by Plato in Timaeus and Critias)26 as an original source for the myth that Atlantis, which reportedly had a land mass greater than that of Asia and Africa put together, was situated in front of the strait known as the Pillars of Heracles (the twin promontories that flank the Strait of Gibraltar), thus straddling the Atlantic Ocean and the Mediterranean Sea. Following the occurrence of violent earthquakes and floods, Atlantis apparently sank into the depths of the sea. Montaigne notes that the same floods cut off Sicily from the mainland of Italy, and the island of Cyprus from Syria.27 He then comments on the contemporaneous association of Atlantis with the Americas, by stating that it was unlikely that the island was ‘the new world we have lately discovered; for, it well-nigh touched Spaine, and it were an incredible effect of inundation, to have removed the same more then twelve hundred leagues, as we see it is.’28 Another mythical island situated somewhere off the coast of the New World was Utopia. Originally published in Latin in 1516 (more than 60 years before the publication of Montaigne’s essays in 1580), Thomas More’s Utopia evoked a place that both was and was not traceable to the Americas. The narrator of More’s fantastical tale, Raphael Hythlodaeus, was a traveller and scholar, rather than the mariner for whom More mistook him. According to the narrative, More met Raphael in Antwerp, after his fictional hero’s return from the New World. The Portuguese explorer appeared to be ‘stryken in age with a blake sonne burned face, a large bearde and a cloke caste homely aboute hys shoulders, whom by hys favour & apparel forthwythe I Iudged to be a mariner.’29 More had been ‘greatlye deceaved’. The traveller was not a mere sailor. Raphael was less ‘the mariner Palynure’ than he was ‘the expert and prudent prince Ulisses’ and ‘the auncyent and sage Philosopher Plato.’30 According to the story that Raphael told More, he had sailed to the New World with the Florentine explorer ‘Amerike vespuce’ (Amerigo Vespucci, after whom the Americas were named), and had been left by his patron in the

26  See KA Morgan, ‘Designer History: Plato’s Atlantis and Fourth-Century Ideology’ (1998) 118 The Journal of Hellenic Studies 101–118; as Morgan notes, Plato’s retelling of the myth of Atlantis ‘set into narrative motion the paradigm of the ideal state elaborated in the Republic’, ibid, 101. Solon was supposed to have learnt of Atlantis from ‘the Priests of the Cittie of Says [Saïs] in Ægypt’: Montaigne, ‘Of the Caniballes’, 100. 27 ibid. 28  ibid, 100–101. 29  T More (Sir), A fruteful and pleasaunt worke of the beste state of a publique weale, and of the new yle called Utopia, R Robinson (trans) (London, Abraham Vele, 1551) sig. B.ii.v.–sig. B.iii.r. 30  ibid, sig. B.iii.r–B.iii.v. Palynurus was the pilot of Aeneas in Virgil’s The Aeneid, Bk III.202 and Bk V.832 et seq.

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fictional country of ‘Gulike’,31 on the north-east coast of South America. Raphael informed More that he returned to his home country of Portugal, via ‘Taprobane’ (present-day Sri Lanka) and ‘Calyquit’ (present-day Kolkata).32 The influence of ‘the prudent prince Ulisses’ and ‘the auncyent and sage Philosopher Plato’ extends far beyond More’s Utopia, to other imaginary island states. Of these, The Tempest operates at one level as the theatrical equivalent of a particular intellectual and literary conceit: the island as microcosm of the polis, in which the quest for self-knowledge (of which Ulysses is the iconic personification) and the attempt to create an ideal society (of which Plato’s The Republic is the paradigm) are represented through the depiction of a utopian (or, in the case of The Tempest, a dystopian) commonwealth. It is this aspect of the play—of the enchanted island as an imaginary landscape,33 a symbol of statehood—on which I concentrate in the next section of this chapter. For the purpose of the present analysis, the topography of the island, simultaneously in the Mediterranean Sea and (at least in the political imagination) in the Atlantic Ocean of the New World, is explained in terms of the intellectual, political and artistic influence of the European Renaissance over prevailing cultural norms. As AD Nuttall has observed of The Tempest, ‘the map of the Mediterranean [is] overlaid by an imagined larger topography, the old world somehow instinct with a dream of the new.’34 I refer above to the early modern project of translatio imperii, and of the Jacobean ambition (engendered in the reign of Elizabeth I) of transferring rule from east to west, across the Atlantic (encompassing Ireland en route). With specific reference to the English legal institution, I consider the westerly trajectory of classical thought, based on the seminal political and juristic works of Plato, Aristotle and Cicero, as well as the poetic works of Homer, Virgil and Ovid. The dissemination of classical texts and neoclassical, humanist literature was enabled and facilitated by the revolutionary printing technology of the late sixteenth and early seventeenth century.35 As I discuss in 31 More, Utopia (1551), sig. B.iiii.r. On the nautical career of Vespucci, see RH Major, The Life of Prince Henry of Portugal, Surnamed the Navigator (London, A Asher & Co, 1868) 367–88. 32 More, Utopia (1551), sig. B.iiii.r; M Loughlin, S Bell, P Blake (eds), ‘Sir Thomas More’ in The Broadview Anthology of Sixteenth-Century Poetry and Prose (Peterborough, Ontario, Broadview Press, 2011) 10–78, 15, fns 1, 2 and 6. 33  The Enchanted Island was the alternative title for an adaptation of The Tempest by John Dryden and William Davenant, first performed in 1667; see Orgel (ed), The Tempest, Introduction, 64–66. John Downes reviewed Thomas Shadwell’s 1673 operatic version of the Dryden and Davenant adaptation: ‘The Tempest, or the Inchanted Island, made into an Opera by Mr. Shadwell, having all New in it; as Scenes, Machines; particularly, one Scene Painted with Myriads of Ariel Spirits’: J Downes, Roscius Anglicanus, or An Historical Review of the Stage (London, H Playford, 1708) 34; see Vaughan and Vaughan, Shakespeare’s Caliban, 173–76. In 1848, William and Robert Brough wrote a version of The Tempest, entitled The Enchanted Isle, for discussion of which see TR Griffiths, ‘“This Island’s mine”: Caliban and Colonialism’ (1983) 13 The Yearbook of English Studies 159–80, 161–62. 34 Nuttall, Shakespeare the Thinker, 362. Ward claims that the island in The Tempest ‘is the “new” world, a world as much of the imagination as of reality’: I Ward, Shakespeare and the Legal Imagination (London, Butterworths, 1999) 215; see also, R Wilson, ‘Voyage to Tunis: New History and the Old World of The Tempest’ (1997) 64 A Journal of English Literary History 333–57. 35  Regarding the effect on English legal education of advances in printing technology, see Chapter 1, text to nn 10–12, above. For a study of the English book-trade in the first half of the sixteenth ­century,

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the remainder of this chapter, the influence of classical, literary artefacts over the development of the English legal system in the first decade of Jacobean rule was profound and would prove to be enduring.36 In the final section of this chapter, I analyse the response of the English legal institution to the imperial projects of conquest and colonisation. I consider first the imposition and enforcement of the English legal system in Ireland, as reported by Sir John Davies in two works, written while he was serving as Attorney-General for Ireland.37 The first of these is a polemical account of the practical difficulties with which English government in Ireland was confronted, entitled A discoverie of the true causes why Ireland was never entirely subdued nor brought under obedience of the Crowne of England, until the beginning of his Maiesties happie raigne (published in 1612); the second is a volume of Irish law reports, entitled Le Primer Report des Cases & Matters en Ley resolves & adiudges en les Courts del Roy en Ireland (published in 1615). By way of conclusion, I address the relationship between colonists and common lawyers on the one hand and the indigenous inhabitants of the New World on the other. My analysis is founded on two principal categories of resource. The first of these comprises anecdotal reports from Virginia, written by English colonists, foremost of whom are Captain John Smith (‘colonel’ of the Virginia colony) and William Strachey (whose report of the wreck of Sea Venture was almost certainly a source for The Tempest).38 For my second resource, I return to the insular communities of the Inns of Court, and the stylised depictions of Amerindian culture, as presented in two masques, both roughly contemporaneous with The Tempest: George Chapman’s The Memorable Maske of the two Honorable Houses or Inns of Court: the Middle Temple and Lyncolns Inne (1613) and The Maske of Flowers (1614), written by members of Gray’s Inn.39

see P Blayney, The Stationers’ Company and the Printers of London: 1501–57, 2 vols (Cambridge, Cambridge University Press, 2013); on the increase in production of books throughout the sixteenth century, see P Williams, The Later Tudors: England, 1547–1603 (Oxford, Oxford University Press, 1998) 395–98. 36  See DR Kelley, ‘History, English Law and the Renaissance’ (1974) 65 Past and Present 24–51; also, DR Kelley, ‘Vera Philosophia: The Philosophical Significance of Renaissance Jurisprudence’ (1976) 14 Journal of the History of Philosophy 267–79. 37  Davies was the perpetrator of the notorious ‘bastinado’ assault on Richard Martin at the Middle Temple during the 1597–98 revels, and the author of the Epigrammes, discussed in Chapter 1, above. He was also the author of Nosce Teipsum, discussed in Chapter 4, above. 38  The title page of Smith’s A True Relation of such occurrences and accidents of noate as hath hapned in Virginia (published in 1608) describes the author as ‘Coronell of the said Collony’; see, D Hoobler and T Hoobler, Captain John Smith: Jamestown and the Birth of the American Dream (Hoboken, NJ, John Wiley & Sons, 2006). 39  For discussion of The Memorable Masque and The Masque of Flowers in the general context of the Inns of Court masques, see P Raffield, Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge, Cambridge University Press, 2004) 124, 133–34,139, 140, 142, 145–48, 219.

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II.  Utopia and the Legal Imagination John Selden ended his preface to Janus Anglorum with the following quotation from Ovid: Laudamus veteres, sed nostris utimur annis: / Mos tamen est æque dignus uterque coli. Selden translated these lines as: ‘We praise old times, but make use of our own; / And yet ’tis fit they both alike be known.’40 These lines of verse would have served as an epithet for Sir Edward Coke (and Selden may have had in mind the then Chief Justice of the Common Pleas, when he wrote the Preface in 1610) and his tendency to conflate the mythography of the ancient world with the historical origins of English law. In preceding chapters I refer to the legend of Brutus of Troy, and to the propagation by Coke of the myth that the great-grandson of Aeneas was the founder of English law.41 As Donald R Kelley observed, in so doing, ‘Coke was doing little more than rehearsing the arguments of his famous predecessor Sir John Fortescue’,42 who had also attributed the foundation of English law to the legendary Trojan king of the Britons. While Kelley is correct to note that Coke was an archetype of ‘intellectual insularity’,43 it is important to emphasise that Coke neither perceived nor represented himself as a humanist scholar, along the lines of a Thomas More or an Erasmus. In his capacity as writer and law reporter, he inclined towards polemic: his literary style was entirely appropriate to his self-appointed role as propagandist for the common law, bound by the tradition of oral narrative that characterised English juridical procedure. The prefaces to Coke’s Reports invariably instance the tendency of their author to mythologise the origins of English law. Coke’s objective was to illustrate the immemorial antiquity of common law, in so doing demonstrating its precedence and priority over rival legal systems. Hence, ‘the common law of England had been time out of mind of man before the [Norman] conquest, and was not altered or changed by the Conqueror.’44 Selden considered the story of Brutus and the foundation of Troynovant to be a poetic fiction, intended ‘to raise the British name out of the Trojan ashes.’45 There is probably some truth in the claim made by Selden that ‘there was nothing our Ancestors heard with greater glee, than that they were descended from the adulterous Trojans’.46 The amused cynicism of Selden not-

40  J Selden, The Reverse or Back-Face of the English Janus, R Westcot (trans) (London, Thomas Basset & Richard Chiswell, 1682) ‘The Authors Preface to the Reader’, sig. b2.r. The lines quoted by Selden are from Ovid, Fastorum, Bk I.225–26. 41  See Chapter 3, text to n 15, above; also Chapter 4, text to nn 26–29, above. 42  Kelley, ‘History, English Law and the Renaissance’ 25. 43  ibid, 32. For a similar assessment, see Pocock, who refers to Coke’s ‘insular’ mind: JGA Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (Cambridge, Cambridge University Press, 1987) 56. 44  Part 3 (1602) of The Reports of Sir Edward Coke, Knt. In English, G Wilson (ed), 7 vols (London, Rivington, 1777) 2: ‘To the Reader’, vib–viia. 45 Selden, English Janus, 8. On Selden and ‘Trojan law’, see Raffield, Shakespeare’s Imaginary Constitution, 37–38. 46 Selden, English Janus, 9.

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withstanding, the significance of Trojan mythology to the history of English law, as recorded by Fortescue and Coke, lay in its inference of a prelapsarian golden age: an English Utopia, in which ‘the laws of England are of much greater antiquity than they are reported to be, and than any the constitutions or laws imperial of Roman Emperors.’ For Coke, the name ‘Albion’ was ‘at the first Olbion, or the happy island in Greek’.47 Coke may have been persuaded of the linguistic association with the ‘happy island’ by reading the 1556 edition of Thomas More’s Utopia, in which the following addendum was inserted: For what Platoes penne hathe platted briefely In naked wordes, as in a glass, The same have I perfourmed fully, With lawes, with men, and treasure fyttely. Wherfore not Utopia, but rather rightely My name is Eutopie: A place of felicitie.48

The same idyllic theme pervades the preface to the Irish law reports of Sir John Davies, which in substantive terms appears at first glance to bear a strong resemblance to the utopian vision of the ideal state propounded by Gonzalo in The Tempest. Davies goes so far as to invoke the image of the Amerindian native as the ‘noble savage’, recalling for the reader the idealisation of the New World that was a central, interpretative feature of Montaigne’s ‘Of the Caniballes’: Indeed, if wee all liv’d according to the lawe of nature, wee should neede fewe lawes, & fewer lawiers. Do as thou wouldst bee done unto were a rule sufficient to rule us all: & every mans conscience would supplie both the place of an Advocate & a Judge, & then wee should suffer no costs of suite, nor delay of process. And againe if wee were a poore & naked people, as many nations in America bee, wee should easily agree to bee iudged by the next man wee meete, & so make a short end of everie controversie.49

Jonathan Bate makes the important observation that, for knowledgeable playgoers of the early modern period, Gonzalo’s disquisition on the perfect commonwealth would have been suggestive of Ovid (with whose works many people would have been familiar from grammar school) rather than Montaigne.50 This seems highly 47 

Coke, 3 Reports, ‘To the Reader’, xb. T More (Sir), A frutefull pleasaunt, wittie worke, of the beste state of a publique weale, and of the new yle, called Utopia, R Robinson (trans) (London, Abraham Vele, 1556) Addendum (unpaginated). On More’s Utopia, the immemorial custom of common law, and Fortescue’s De Laudibus Legum Angliae, see S Elsky, ‘Common Law and the Commonplace in Thomas More’s Utopia’ (2013) 43 English Literary Renaissance 181–210. 49  J Davies (Sir), Le Primer Report des Cases & Matters en Ley resolves & adiudges en les Courts del Roy en Ireland (Dublin, Iohn Franckton, 1615) ‘A Preface Dedicatory’, sig. *6.r. 50  Rutter has noted that, in some schools, Ovid’s Metamorphoses was ‘memorized, word for word, at the rate of a book a year’: CC Rutter, ‘Shakespeare and School’ in P Edmondson and S Wells (eds), Shakespeare Beyond Doubt: Evidence, Argument, Controversy (Cambridge, Cambridge University Press, 2013) 133–144, 138; see also, C Jameson, ‘Ovid in the Sixteenth Century’ in JW Binns (ed), Ovid (London, Routledge and Kegan Paul, 1973) 210–242; more generally, see JW Binns, Intellectual Culture in Elizabethan and Jacobean England: the Latin Writings of the Age (Leeds, Francis Cairns, 1990). 48 

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probable, especially as Gonzalo ends his peroration with the hyperbolic claim that ‘I would with such perfection govern, sir, / T’excel the Golden Age.’ (2.1.164–65) Bate argues that Gonzalo ‘gets into a tangle in his speech’ because his ‘Iron Age mentality’ (predicated upon law, sovereignty, plantation and rule) is incompatible with the ideal epoch of the Golden Age, described in Book I of Ovid’s Metamorphoses, in which there were no laws because there was no need for them.51 Unlike Gonzalo, Davies was an eminent lawyer (as well as a poet). As Attorney-General for Ireland from 1606 until 1619 he proved himself to be a pragmatist, one who was realistic about the difficulties inherent in administering justice to a conquered island on behalf of the English crown.52 Whilst appearing to lament the passing of an Arcadian world, inhabited by ‘Sheepards and heardsmen’, Davies acknowledged that the creation and expansion of the ‘common-wealth’ initiated the transformation of the Golden Age into the Iron Age, necessitating the creation of a body of law and its attendant legal institutions: ‘the people growe proud withall, & their pride makes them contentious & litigious, so as there is neede of many lawes to bridle them, & many Officers to execute these lawes, & many Lawyers to interpret those lawes’.53 The elegiac tone of the preface to Davies’s Le Primer Report is illustrative of a propensity among early modern common lawyers to depict England as a pastoral idyll, in which common law enabled and facilitated the attainment of happiness. Hence, like Fortescue before him, Davies compared the French legal system (and by implication the civilian code) unfavourably with its English counterpart: ‘if wee compare our legall proceedings with the proces of other Kingdomes & commonweales, specially of France, wee shall finde, that according to the usual in divers writs, wee have indeede plenam & celerem iustitiam [‘full and speedy justice’] …’54 He stopped short of declaring, as Fortescue had declared in De Laudibus Legum Angliae, that all English subjects were provided as a matter of course with every amenity conducive to an ‘Easy and Happy’ life;55 in stark contrast to the miserable French people, whose lives of hardship and penury were a direct consequence (Fortescue alleged) of an iniquitous political regime, which they were forced to endure and under which they suffered. Like Fortescue, Davies invoked a utopian fiction to depict the English state in terms only slightly less euphoric and effusive than those employed by Coke, when he described Albion as ‘Olbion, or the happy island in Greek’. Common to the three utopian visions of the English legal system outlined above, imagined by Fortescue, Coke and Davies, was the representation

51  J Bate, Shakespeare and Ovid (Oxford, Clarendon Press, 1993) 256. On the Ovidian Golden Age and its relevance to the imposition of law, see Chapter 3, text to nn 60 and 66, above. On the transformation of the Golden Age into the Iron Age, see Chapter 3, text to n 65, above. 52 See HS Pawlisch, Sir John Davies and the Conquest of Ireland: a Study in Legal Imperialism (Cambridge, Cambridge University Press, 1985). 53 Davies, Le Primer Report, ‘A Preface Dedicatory’, sig. *6.r. 54 ibid. 55  J Fortescue (Sir), De Laudibus Legum Angliae, J Selden (ed) (London, R Gosling, 1737) 83. On Fortescue and the English pastoral idyll, see Chapter 3, text to nn 66–70, above.

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of England and its inhabitants as a microscopic enactment of the perfect society, in which members went about their quotidian business with total equanimity, because the liberties on which their happiness depended were guaranteed and enforced by common law. As I have noted elsewhere in this book, James I employed the image of the human body, both in his published works and in his speeches to Parliament, in order to depict in graphic terms the workings of a body politic with a king as its head. In Chapter 4, I cite the reference by James I to himself, as ‘the head of this Microcosme of the body of man.’56 In the works of Fortescue, Coke and Davies, the pastoral landscape of England was a microcosm of the ideal society, endemic to which was the subjection of its populace to governance under the benevolent rule of common law. In the writings and speeches of James I, the anatomical image was utilised by its royal author as a microcosm of the ideal political state, governed at its head by a gracious but omnipotent king. The microcosm was an evocative literary device, used by writers since its iconic incarnation in Plato’s The Republic to depict the workings of the state, the status of subjects within the polis, and their constitutional relationship with the supreme magistrate. The description by James I of himself as the head of a body of men (the anatomical image providing a microcosm of the body politic) facilitated the necessary impetus for reimagining the microcosm as a literary sub-genre. Authors embraced the Jacobean project of imperial expansion and expressed this political theme with vivid images of exploration and conquest, involving perilous sea-voyages and the discovery of new worlds. Upon the accession of James I to the throne of England in 1603, the poet John Davies of Hereford wrote Microcosmos: The Discovery of the Little World, with the Government Thereof, which he dedicated to the new king.57 The first lines of the dedication in this poetical work indicate that the principal subject of the book was intended to be the art of government: ‘Thoughts, fight no more, but now (with Wits accord) / Yeeld al obedience to ARTS rightest rule …’58 In a section ­entitled ‘Upon the Discoverie of the little World By Master Iohn Davies’, the author employed the metaphor of sea-travel (referring en passant to the iconic explorers 56  JP Sommerville (ed), King James VI and I: Political Writings (Cambridge, Cambridge University Press, 1994) 181. On Sir Thomas Elyot, James I, and the human body as a metaphor of the state, see Chapter 4, text to nn 11–15, above. 57  I use the epithet ‘John Davies of Hereford’ to distinguish him from his namesake, contemporary and fellow poet: the barrister and Attorney-General for Ireland, Sir John Davies. Hereford, birthplace of the former, was always included on the title pages of his books. John Davies of Hereford worked as a teacher of handwriting—a ‘writing-master’—at Oxford (one of his students was Prince Henry, the eldest son of James I). The bulk of his oeuvre consisted of religious poetry, but his best-known work was a volume of epigrams, The Scourge of Folly, published in 1610; see J Doelman, ‘The Accession of King James I and English Religious Poetry’ (1994) 34 Studies in English Literature, 1500–1900 19–40. On the development of a distinct literary culture under the early Stuarts, see J Goldberg, James I and the Politics of Literature: Jonson, Shakespeare, Donne and their Contemporaries (Baltimore, Johns Hopkins University Press, 1983); also, G Parry, The Golden Age Restor’d: The Culture of the Stuart Courts, 1603–42 (Manchester, Manchester University Press, 1981). 58  J Davies, Microcosmos. The Discovery of the Little World, with the government thereof (London, John Barnes, 1603) sig. A2.r.

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and navigators of their time, Sir Francis Drake and Christopher Columbus) to describe the art of the writer: Goe Drake of England, Dove of Italie, Unfolde what ever Neptunes armes infolde, Travell the Earth (as Phoebus doth the skie) Till you begette new Worlds upon this olde.59

Microcosmos was likened by its author to ‘The Golden Hind’, the galleon in which Drake circumnavigated the globe between 1577 and 1580. Davies was the great navigator himself: ‘This Paper-Bark may be thy Golden-Hinde, / Davies the Drake and true discov’rer is …’.60 The ship was transformed into the book, and the ship’s captain into the writer (there is a stylistic similarity here to More’s Utopia, in which Raphael is not Palynurus, the pilot of Aeneas, but rather the ‘prudent prince Ulisses’ or the ‘sage Philosopher Plato’).61 This section of the book, which comprises a collection of encomia to John Davies of Hereford from various admirers, is followed by ‘A Preface in honor and devotion unto our most puissant, and no lesse royally-accomplished Soveraigne, James’.62 Here, the Jacobean project of imperial expansion is invoked, with reference to the monstrous figure of the ‘humaneflesh-fedd Caniball’ who preys on ‘some weakling’, but is ‘sker’d’ [‘skewered’] by an English knight, whose mission was to liberate oppressed subjects, made up of all those people unfortunate enough to reside outside the protection of common law jurisdiction. Justification for imperial conquest by English agents of James I was provided in language that would have been familiar to readers of The Trew Law of Free Monarchies: the imperial conquerors were ‘as Gods Lieutenants’, whose purpose was ‘To see his highest iustice done each way’. Davies adopts a messianic tone to describe a role for the English nation as crusading avengers of injustice: ‘That Heav’n by us may make the Earth to kno / We are Heav’n-holpe, to helpe all wronged so.’63 Here, a marginal note cites Proverbs 24.11 the verse of which reads as follows: ‘If thou forbear to deliver them that are drawn unto death, and those that are ready to be slain …’.64 59 

ibid, sig. B3.r. A marginal note records that the ‘Dove of Italie’ is Christopher Columbus. sig. B3.v. This section is attributed to ‘Charles Fitz-Ieffrey’. On the life of Drake, see H Kelsey, Sir Francis Drake: The Queen’s Pirate (New Haven, Yale University Press, 1998). On the circumnavigation of the world by Drake and the theme of global exploration in the plays of Shakespeare, see N MacGregor, ‘England Goes Global: Sir Francis Drake’s Circumnavigation Medal’ in N MacGregor, Shakespeare’s Restless World: An Unexpected History in Twenty Objects (London, Penguin Books, 2013) 3–17. 61  See text to n 30, above. 62 Davies, Microcosmos, ‘A Preface’, 1. 63  ibid, ‘A Preface’, 6. ‘The duetie, and alleageance of the people to their lawfull king, their obedience, I say, ought to be to him, as to Gods lieutenant in earth’: James I, The Trew Law of Free Monarchies in Sommerville (ed), King James VI and I, 72. The King also described himself to Parliament as God’s lieutenant on earth, ibid, 181. On James I as the omniscient and divinely anointed lawgiver, see Raffield, Shakespeare’s Imaginary Constitution, 191–217. 64  Proverbs 24.12 continues: ‘If thou sayest, Behold, we knew it not; doth not he that pondereth the heart consider it? and he that keepeth thy soul, doth not he know it? and shall not he render to every man according to his works?’. Quotations are from the Authorised King James Version of The Bible. 60 ibid,

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The nascent theme that starts to emerge at this point in Microcosmos, and which Davies of Hereford develops later, is the crucial importance to good government of action and resolution by the ruler; and conversely, of the dangers posed by excessive intellectual absorption on the part of the ruler to successful governance of the state. Much later in the poem, Davies emphasises the value to the ruler of a firm grounding in ethics, politics, economics and history; although he considers mathematics and metaphysics to ‘Have no necessitie in government’.65 He tacitly expresses mild scepticism regarding Plato’s idea of the moral and intellectual primacy of the philosopher king.66 For Davies, there was no necessity for statesmen to gage Philosophie Deeper, then well to know how well to live In Peace, and Wealth, (this worldes felicitie) And Rules of Life, to that effect to give; They dive too deepe, if they do deeper dive …

Indeed, Davies argues that the ruler is ‘fitter farre for civill government’ without having read ‘such wilde Artes Rudiments’, which will serve only to ‘distracte his thoughts, and government requires the whole man.’67 There are strong intimations in The Tempest that the usurpation of Prospero by his brother Antonio was contingent upon the obsessive study of the liberal arts by the rightful Duke of Milan: ‘those being all my study, / And to my state grew stranger, being transported / And rapt in secret studies.’ (1.2.74–77) Prospero admits to ‘neglecting worldly ends’ (1.2.89), dedicating himself instead to ‘the bettering of my mind’ (1.2.90). Lest the audience be in any doubt about the subject matter of his study, Prospero confirms to Miranda that prior to his deposition, he was ‘for the liberal arts / Without a parallel’ (1.2.73–74). There is some ambiguity about the exact nature of Prospero’s ‘secret studies’. As a magus, practising the arts of sorcery to exert and enforce his will over characters and events on the island, it may reasonably be argued that his interpretation of the liberal arts is ‘liberal’ in the extreme. CJ Sisson has noted that ‘Prospero is a magician and a conjuror, with all the implements of the professional practitioner, a book of secret magic learning, a magic staff, and a magic robe’.68 During the early modern period, ‘conjuration’ was a criminal offence in English law. In his law dictionary The Interpreter, published in 1607, John Cowell made the following observation on the subject: But in our common lawe, it is especially used for such as have personall conference with the devill or evill spirit, to know any secret, or to effect any purpose. anno 5. Eliza. ca. 16. 65 Davies, Microcosmos, 123.

66  ‘The society we have described can never grow into a reality or see the light of day … till philosophers become kings in this world, or till those we now call kings and rulers really and truly become philosophers’: Plato, The Republic, D Lee (trans) (London, Penguin, 1987) 202–03, Bk V.473d. 67 Davies, Microcosmos, 123. 68  CJ Sisson, ‘The Magic of Prospero’ (1958) 11 Shakespeare Survey 70–77, 74; see Orgel (ed) The Tempest, Introduction, 20; also, K Berger, ‘Prospero’s Art’ (1977) 10 Shakespeare Studies 211–39. On the Elizabethan mathematician, astronomer, and magus John Dee, see B Woolley, The Queen’s Conjuror: The Life and Magic of Dr Dee (London, Harper Collins, 2001); also, FA Yates, The Occult Philosophy in the Elizabethan Age (London, Routledge and Kegan Paul, 1979).

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And the difference that I have observed (how truly let those iudge that be beter skilled in these maters) betweene coniuration and witch craft, is because the one seemeth, by prayers and invocation of Gods powerfull names, to compell the devill, to say or doe what he commandeth him: the other dealeth rather by a friendly and voluntarie conference or agreement betweene him or her and the devill or familiar, to have her or his desires and turnes served in lien of blood, or other gift offered vnto him, especially of his or her soule.69

Widespread public interest in magic and witchcraft followed the publication in 1599 of James VI’s Daemonologie. The book sold so successfully that a new edition was published in 1603, upon James’s accession to the English throne. In it, the King distinguished between witchcraft and ‘Magic or Necromancie’ (conjuration) on the grounds that witches were ‘servants onely, and slaves to the Divel; but the Necromanciers are his Maisters and commanders.’70 There is consonance here with the reference by Ariel to Prospero as ‘my potent master’ (4.1.34) and, more especially, as ‘my commander.’ (4.1.167) The observation made by James VI that magicians ‘can suddenly cause be brought unto them, all kinds of dainty dishes, by their familiar spirit’71 recalls the magical provision of a banquet in Act Three, Scene Three, for Alonso and his court, and the sudden dispersal of the feast, orchestrated by Prospero’s ‘familiar spirit’ Ariel. By the end of the play, Prospero has abjured ‘this rough magic’ (5.1.50) and publicly avowed that ‘I’ll drown my book’. (5.1.57) The meaning of magic in the play is ambiguous. Whilst there are obvious allusions in The Tempest to contemporaneous discourse on the subject of witchcraft and its illegality; to interpret ‘magic’ too literally as conjuration, necromancy, or sorcery is to overlook what Orgel terms the ‘openness’ of its meaning in Jacobean England, which from the perspective of ‘the liberal arts’ incorporates ‘Baconian science and Neoplatonic philosophy’.72 That scholarship in philosophy and the liberal arts was believed to be a positive hindrance to the practice of good governance was an idea confined not only to advice on the exercise of kingship. In a letter to Coke, written in 1606, Bacon criticised the great lawyer and law reporter on the grounds that ‘you converse with books not man, and books especially humane.’73 For all his insularity, Coke regarded law as an art, mastery of which required serious engagement with the iconic authors of classical philosophy. According to Coke, those of his contemporaries unread in philosophy and law should ‘meddle not with any point or secret of any art or science, especially with the laws of this realm’.74 For others (notably the civil lawyer John Cowell), English law was an art as dark and mysterious as that

69  J Cowell, The Interpreter: or Booke containing the signification of words wherein is set foorth the true meaning of all, or the most part of such words and termes, as are mentioned in the law writers (Cambridge, Iohn Legate, 1607) sig. R3.v–sig. R4.r. On the distinction between conjuration and witchcraft, see Sisson, ‘The Magic of Prospero’, 72. 70  James I, Daemonologie, In Forme of a Dialogue (London, William Cotton and Will. Aspley, 1603) 8, 9. 71  ibid, ‘The Preface to the Reader’, sig. A3.r. 72  Orgel (ed) The Tempest, Introduction, 20. 73  Letter to Coke from Sir Francis Bacon, BL Sloane. 1775, fo 79.v; see Chapter 2, text to n 53, above. 74  Coke, 3 Reports, 2: ‘To the Reader’, xiiia.

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practised by Prospero: in Chapter 4, I refer to Cowell’s description of common law as ‘darke and melancholy’.75 The idea that common law was a dark art, enshrouded in mystery and ritual, is traceable to its supposed foundation in Druidical rites and practices.76 Fortescue compounded the aura of mystery, describing judges as priests, giving and teaching holy things.77 The mystical role of the lawyer as priest played less comfortably in Jacobean England than it had in the late fifteenth century, when Fortescue wrote De Laudibus Legum Angliae. As discussed in Chapter 4, the first decade of Jacobean rule was notable in legal circles for the clash between temporal and spiritual jurisdictions. The secularisation of the English legal profession and the efforts of its members to distinguish themselves from their civilian counterparts in the ecclesiastical courts required disavowal of their Druidic (and monastic) origins,78 comparable in symbolic terms to the decision of Prospero to discard his magic robe and replace it with ‘the hat and rapier in my cell. [Exit Ariel]/ I will discase me, and myself present / As I was sometime Milan.’ (5.1.84–86) Having relinquished his magic robe, regained his dukedom and forgiven his brother Antonio (ostensibly at least) for his treachery, Prospero declares his intention of returning to Milan, ‘where / Every third thought shall be my grave.’ (5.1.308–309) There is a sense of Prospero meditating not only on his own mortality, but also on the death of magic. To say the least, he appears ambivalent about returning to the pragmatic imperatives of temporal magistracy in Milan.79 As James VI of Scotland, the King had given advice similar to that dispensed by John Davies of Hereford in Microcosmos, regarding reading material that he considered to be appropriate for and useful to the supreme magistrate. In Basilicon Doron, completed in manuscript form in 1598, published in 1599, and intended as a guide for the intended heir to the Scottish throne (the book was subtitled ‘His Maiesties Instructions To His Dearest Sonne, Henry the Prince’), James VI expounded on the subject of princely education. Reading should be purposeful, its end being ‘to make you able thereby to use your office’.80 For James, of primary importance to a Christian king was intimate knowledge of the scriptures: ‘there is an expresse and most notable exhortation and commandement given them [kings], to reade and meditate in the Law of God’.81 A king must be ‘well seene in the Scriptures’.82 It is noteworthy in the context of Prospero’s unparalleled learning

75 

Chapter 4, text to n 90, above. Chapter 4, text to nn 167–76, above; also, Raffield, Shakespeare’s Imaginary Constitution, 44–47. 77 Fortescue, De Laudibus, 5; see Chapter 1, n 41, above. 78  On ecclesiastical antecedents, see Chapter 1, n 24, above; also, Raffield, Images and Cultures, 11–12. Dugdale noted that ‘in the time of King William the Conqueror one Alfwin Rector of Suttun, divers Monks of Abingdon, amongst which Sacolus and Godric are specially remembered’, were widely acknowledged to be expert in their knowledge of secular law: W Dugdale (Sir), Origines Juridiciales or Historical Memorials of the English Laws (London, F and T Warren, 1666) 21. 79  On the renunciation by Prospero of his art, see Sisson, ‘The Magic of Prospero’, 74. 80  Sommerville (ed), King James VI and I, 44. 81  ibid, 13. 82  ibid, 44. 76  See

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in the liberal arts, and his admission that he devoted less attention than he should have to the governance of Milan—‘And to my state grew stranger’ (1.2.77)—that James should have expressed scepticism about the merits of such study: As for the studie of other liberall artes and sciences, I would have you reasonably versed in them, but not preassing to bee a passe-master in any of them: for that cannot but distract you from the points of your calling … your people (I thinke) will looke very bluntly upon it.83

According to James, the purpose of all study for a king was not that it was an end in itself, but rather that it enabled the ruler ‘to know well youre owne craft’ (that is to say, the art of kingship) and exercise it appropriately.84 As indicated above, the primary source of kingly learning was the Bible. Intimate knowledge of the scriptures was essential, and ‘Next the Scriptures, studie well your owne lawes’.85 There is a sense in which James implied that divine and municipal law were indivisible, when he referred to religious faith as ‘the golden chaine that linketh the faithfull soule to Christ.’86 In The Laws, Plato had used the similar metaphor of a ‘golden and holy’ cord to describe the public law of the state.87 In Doctor and Student, St German noted that the word ‘law is derived of ligare, that is to say, to bind’; while in John Day’s Law-Trickes or, Who Would Have Thought It (discussed in Chapter 1, above), law was compared to ‘a golden chaine, / That linkes the body of a ­common-wealth, / Into a firme and formall Union’.88 In Microcosmos, John Davies of Hereford made a similar metaphorical allusion, referencing the Aristotelian bonds of friendship that form the basis of the ideal polis: ‘Love is the Linck that lincks mankind (by kind / Loving and kinde) in perfect Union’. The peculiar transformative and unifying aspects of love lend ‘succour’ to the ‘woe-begon, / As if they were not diverse but al one’.89 The communitarian ideal of law was expressed later in lines ­reminiscent of the Aristotelian argument that the purpose of the state is the attainment of ‘the good life’: ‘And yet to know the Law, is but to know / How Men should live, and without Law agree’.90 83 

ibid, 46. ibid, 44. 85  ibid, 45. 86  ibid, 16. 87 Plato, The Laws, TJ Saunders (trans) (London, Penguin, 2004) 31, Bk 1.II.645a; Davies of Hereford described the law as ‘an holy thing’, Davies, Microcosmos, 209. 88  C St German, Dialogues Between a Doctor of Divinity and a Student in the Laws of England, W Muchall (ed) (Cincinnati, Ohio, Robert Clarke, 1874) 10. For discussion of Day’s Law-Trickes or, Who Would Have Thought It, see Chapter 1, text to n 40, above. On the anatomical metaphor, employed by early modern jurists, of law as a ligament or tendon, see Chapter 4, n 12, above. On the juristic metaphor of the golden chain, see Raffield, Shakespeare’s Imaginary Constitution, 63–64. 89 Davies, Microcosmos, 192. For Aristotle, not only was friendship the binding factor in the foundation and maintenance of communities, but also ‘lawgivers seem to attach more importance to it [friendship] than justice; because concord seems to be something like friendship, and concord is their primary object—that and eliminating faction, which is enmity’: Aristotle, The Nicomachean Ethics, JAK Thomson (trans) (London, Penguin, 2004) 201, Bk VIII.I.1155a20–25. 90 Davies, Microcosmos, 209. ‘While the state came about as a means of securing life itself, it continues in being to secure the good life’: Aristotle, The Politics, TA Sinclair (trans) (London, Penguin, 1992) 59, Bk I.II.1252b27–1253a1. 84 

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If love is the link that binds mankind into a union, then conversely (according to Davies of Hereford), ‘Hatred is the hatchet, which doth cleeve / Mankinde to peeces in confusion’.91 The binding power of love and the destructive power of hatred are themes that resonate throughout The Tempest, the binary opposition of love and hatred often being emphasised to startling effect. Caliban reminds Prospero that when he first arrived on the island, ‘then I loved thee’ (1.2.337). Only two lines later he exclaims: ‘Cursèd be I that did so! All the charms / Of Sycorax—toads, beetles, bats—light on you!’ (1.2.341). We learn that Prospero’s love for Caliban was transformed instantaneously to hatred when the slave attempted to rape Miranda, a shocking revelation that elicits an amused response from Caliban: ‘Oh ho, Oh ho! Would’t had been done. / Thou didst prevent me—I had peopled else / This isle with Calibans.’ (1.2.349–51)92 There is a political sense to these lines of Caliban, relating them to his earlier complaint that ‘I am all the subjects that you have, / Which first was mine own king’ (1.2.342–43). Rebellion and treason are constant themes in The Tempest, and (as in the scene between Prospero and Caliban above) are invariably invoked by reference to love transforming into hatred. Despite the fact that Prospero orchestrates the first meeting between his daughter Miranda and Ferdinand (the shipwrecked son of Alonso, King of Naples), in this scene Prospero twice refers to the prince as a traitor.93 When Miranda offers to ‘be his surety’ (1.2.474), she receives the following rebuke from her father, all the more startling for the love he clearly bears her: ‘Silence! One word more / Shall make me chide thee, if not hate thee.’ (1.2.474–75) Much later, Prospero warns his future son-in-law that should he have sexual intercourse with Miranda before their marriage vows have been solemnised in a religious ceremony, then ‘barren hate, / Sour-eyed disdain and discord shall bestrew / The union of your bed with weeds so loathly / That you shall hate it both’ (4.1.19–22). Betrayal of familial love is an obvious feature too of the treacherous acts of Antonio and Sebastian (­usurping the rightful Duke of Milan and plotting to kill the King of Naples) towards their respective brothers, Prospero and Alonso. In The Tempest paternal love on the one hand and filial hatred on the other are polarised, and treason described in ways entirely different from those in Macbeth and The Winter’s Tale. In The Tempest, no king is murdered, no queen indicted for the offence of treason, but betrayal and (especially) forgiveness figure in the thematic and narrative scope of the play. As discussed in Chapter 2 above, in political

91 Davies, Microcosmos, 192.

92  Lindley notes that in early modern drama, ‘Oh ho, O ho’ was a characteristic exclamation of ‘a villain or mischief-maker, and especially of Satan himself ’: Lindley (ed), The Tempest, 137, note to line 349. 93 ‘Speak not you for him: he’s a traitor’ (1.2.459) and ‘Put thy sword up, traitor’ (1.2.468). Mistakenly believing his father Alonso to have drowned and that he is therefore rightful inheritor of the Neapolitan throne, Ferdinand offers to make Miranda ‘Queen of Naples’ (1.2.448); whereupon Prospero invokes the language of treason: ‘Thou dost here usurp / The name thou ow’st not’ (1.2.452–53).

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and juridical terms, treason was characterised by the early modern legal institution as an act of personal betrayal of the monarch by the subject. The action of treason was personalised because it was committed by an individual subject against the body natural of the king.94 Betrayal of familial love is central not only to the depiction of treason in The Tempest, but also to the themes of forgiveness, redemption and reconciliation that are integral to the reimagining of the polis once Prospero has abjured his rough magic, broken his staff, and been restored to his dukedom. Unlike in Macbeth, there is no regicide, although the murder of Alonso is plotted; unlike in The Winter’s Tale, there is no false accusation of marital infidelity. Instead and on a continual basis, in The Tempest there are plots that undermine and threaten to sink the ship of state, a motif that is established at the start of the play and which recurs throughout. The opening dialogue, aboard the doomed ship, between the boatswain and Alonso and his courtiers is startling in its depiction of social and political chaos. The boatswain orders king and court to their cabins, below: ‘What cares these roarers for the name of king? To cabin. Silence! Trouble us not.’ (1.1.15–16)95 Andrew Hadfield has noted that the wrecked ship in The Tempest follows ‘a long line of political imagery as the ship of state, here an obviously unhappy and divided vessel that has little chance of surviving the storm.’96 For Davies of Hereford, the sinking ship was a metaphor for a state without either laws or wise counsellors: As when a Shippe, that lives upon the Downes Of Neptune (mightie Monarch of those Plaines) Is neere at point to perish (if hee frownes,) Without a sterne and one that it sustaines: (For maine is peril els upon those Maines:) So fares that state that hath nor Lordes nor Lawes, Wherewith the Liege the State from ruine raines In stormes of troubles, and Contentions flawes, Wherein wise Councels calme effects doe cause.97

Counsellors and advisers to the king are the ‘Watch-men that stand Sentinell’.98 The nearest to such a role in The Tempest is the character of Gonzalo, the ‘noble Neapolitan’ (1.2.161), who ‘Out of his charity’ (1.2.162) provided Prospero

94  See Chapter 2, text to n 21, above; ‘In all indictments of treason, when any do intend or compass mortem & destructionem domini Regis (which must needs be understood of his natural body, for his politic body is immortal, and not subject to death) … the ligeance is due to the natural body’, Coke, Postnati. Calvin’s Case, 7 Reports (1608) 4: 1a, 10b. On treason as an offence against the body natural of the king, see Raffield, Shakespeare’s Imaginary Constitution, 112. 95 Lindley notes ‘a subsidiary association’ between ‘roarers’ and ‘disorderly people (known as “roaring boys”)’: Lindley (ed), The Tempest, 111, note to line 15. The editors of the Arden edition of the play note that ‘roarers’ is ‘a reference to people who are unruly, as in Middleton’s The Roaring Girl (c 1608)’: Vaughan and Vaughan (eds), The Tempest, 167, note to line 17. 96  A Hadfield, Shakespeare and Renaissance Politics (London, Arden Shakespeare, 2004) 218. 97 Davies, Microcosmos, 122–23. 98  ibid, 123.

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and his daughter with food, drink and clothes for their perilous sea journey, following the expulsion of the rightful Duke of Milan. Gonzalo also furnished Prospero with books, ‘From mine own library, with volumes that / I prize above my dukedom.’ (1.2.167–68) The presence and primacy of ‘my books’ (1.2.166) in this play is ineradicable and constant. Davies of Hereford was insistent that kings should ‘have such Councellors / That might be learn’d in state-Philosophie; / For Kingdomes govern’d by Philosophers / No Constellations feare, nor Destinies’.99 Gonzalo was certainly learned in philosophy: his peroration on the nature of the ideal state in Act Two, Scene One is an explicit homage to Montaigne’s essay ‘Of the Caniballes’.100 But in The Tempest, the Platonic philosopher-king with whom Gonzalo implicitly equates himself is a less than effective counterpart to the putative regicides, Sebastian and Antonio. Their plot to kill Alonso is thwarted not by a learned counsellor imbued with knowledge, but rather by the fortuitous intervention of Ariel, a supernatural agent acting on behalf of his master Prospero, who ‘foresees the danger / That you, his friend, are in, and sends me forth’ (2.1.294–95). The friend to whom Ariel refers here is the faithful Gonzalo, and the airy spirit wakens him that he might thwart the ‘Open-eyed conspiracy’ (2.1.298) of Sebastian and Antonio to murder Alonso. The treasonous plot of Sebastian and Antonio is comically mirrored by the inept conspiracy of Caliban, Stephano and Trinculo, to murder Prospero.101 Their ultimate intention is to install as supreme magistrate of the island the drunken butler Stephano, to whom Caliban has sworn allegiance, believing him to be ‘a brave god’, bearing ‘celestial liquor’ (2.2.99). ‘I’ll swear upon that bottle to be thy true subject’ (2.2.104), Caliban affirms. Trinculo demonstrates acquaintance with the language of politics (as might be expected from the jester to the King of Naples), noting that if the other inhabitants of the island were as drunk as the three of them, then ‘the state totters.’ (3.2.6) Stephano uses the language of the Statute of Treasons 1352, asking how the death of Prospero shall ‘be compassed?’ (3.2.52).102 Of course, the idea that Stephano might become the sovereign ruler of the island is preposterous: as well as being a drunkard he is a self-confessed colonial adventurer, who seeks to exploit the island and the sole inhabitant he has met there, Caliban, for his own gain. Immediately upon encountering Caliban, Stephano expresses his intention to ‘get to Naples with him’ (2.2.62), there to sell him: ‘he shall pay for him that hath him, and that soundly.’ (2.2.68–69) Stephano stands in direct opposition to the 99  ibid, 122. On the next page, Davies issues the following warning: ‘They dive too deepe, if they doe deeper dive’, ibid, 123; see text to n 67, above. 100  See n 15, above. 101  Breight makes the interesting observation that ‘It is not an accident that Caliban’s conspiracy involves three people since a disproportionate number of cases [concerned with treasonous plots] involved precisely three conspirators and / or three men sent to execution’: Breight, ‘Treason doth never Prosper’, 8. Breight cites as example the trial of Baron Cobham, Lord Grey and Sir Griffin Markham for their involvement in the Main and Bye plots against James I, in 1603, ibid, fn 21. On the Main and Bye plots in the context of Measure for Measure, see Raffield, Shakespeare’s Imaginary Constitution, 199–200. 102  The Statute of Treasons 1352 (25 Ed.3. Statute 5. cap.2) defines treason as ‘when anyone attempts to compass or imagine the death of our lord the king’; see Chapter 2, text to n 8, above.

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public good, res publica or common-weal, in defence of which Davies of Hereford had written the following lines of verse: Then Rule should not be given to the rich, If with their wealth they were but fooles uniust: The Common-wealth would private be to such, For they would rule by Lawes squar’d by their lust; And for their gaine, stil buy and sell the Iust …103

Stephano and his co-conspirators are presented in a less serious light than Sebastian and Antonio, but all of the conspirators in The Tempest belong to a particular category of traitor, described by Davies of Hereford as ‘wittie Mal-contents … That egge on Men unwise, and violent, / T’attempt the over-sway of Princes Sway’. Men such as these are ‘Right anti-Kesars undermining Thrones’.104 In 1615, a collection of epigrams by Sir John Harington was published (three years after his death in November 1612). These included an epigram of only two lines, entitled ‘Of Treason’: ‘Treason doth never prosper, whats the reason? / For if it prosper, none dare call it Treason.’105 Curt Breight notes accurately that ‘The Tempest is informed throughout by conspiratorial psychology’, but more controversially he goes on to argue that ‘Prospero and Miranda are exiled to the island precisely because treason doth sometimes prosper, pace Harington’s notorious epigram’.106 Breight somewhat misses the point that Harington was making, which is that if a particular act of treason ‘prospers’, then the traitors (for example, the two groups of plotters in The Tempest) would replace the sitting government, becoming thereby de facto rulers, rather than traitors. Therefore, if the plot attained its objective, ‘none’ (if any of them valued their lives) would ‘dare call it Treason.’ Licensed representation of such an act took place on an annual basis at the Inns of Court, during the seasonal periods of feasting and entertainment known as the revels.107 As noted in Chapter 1, the Inns of Court revels lasted from between three weeks and two months.108 Characteristic of all these events was inversion of the normal order of governance. Inner barristers or law students supplanted the authority of the governing bodies of the Inns, the Benchers, who voluntarily ceded supreme magistracy of the Inn for the duration of the revels. A plausible, semantic link between the words ‘revel’ and ‘rebel’ is made by Anthony Arlidge, who notes

103 Davies, Microcosmos, 129. 104 

ibid, 185. Harington (Sir), Epigrams Both Pleasant and Serious, Written by that All-Worthy Knight, Sir Iohn Harrington: and never before Printed (London, Iohn Budge, 1615) sig. A4.v. See WE Engel, ‘Was Sir John Harington the English Rabelais?’ in BC Bowen (ed), Rabelais in Context (Birmingham, Alabama, Summa, 1993) 147–56. 106  Breight, ‘Treason doth never Prosper’, 9. 107  For references to scholarly works on the revels of this period, see Chapter 1, nn 182, 183, above. 108  See text to Chapter 1, n 182, above. Two months’ duration was atypical. Dugdale records that at the Inner Temple, ‘Orders were made 7 Nov. 7 Caroli primi’ [1631] to the effect ‘That Christmas Commons should continue by the space of three weeks only, and no longer, according to the antient usage and custome of this House’: Dugdale, Origines Juridiciales, 149. 105  J

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in connection with the early modern Inns of Court that revelling had its linguistic origin ‘in the Latin “rebellare” and the Old French “reveler”, both words meaning to rebel.’109 The organisation and orchestration of the revels and staged rebellions at the Inns were the responsibility of two functionaries, elected from the student membership of the Inn: the Master of the Revels and the Lord of Misrule.110 Insofar as Prospero manipulates and controls character and action in the play, that part of his role concerned with the orchestration of plot may be likened to the role of Master of the Revels. In the most famous speech of The Tempest, Prospero refers explicitly to revelling, to the inherent theatricality of the masque that he has summoned and just witnessed, and to the oneiric quality of the revels: Our revels now are ended; these our actors, As I foretold you, were all spirits, and Are melted into air, into thin air; And like the baseless fabric of this vision, The cloud-capped towers, the gorgeous palaces, The solemn temples, the great globe itself, Yea, all which it inherit, shall dissolve, And like this insubstantial pageant faded Leave not a rack behind. We are such stuff As dreams are made on; and our little life Is rounded with a sleep. (4.1.148–58)111

From the perspective of the Inns of Court and its members, the speech of Prospero recalls the transience both of the revels and of the masques that were performed during the periods of revelling.112 For a limited period, the order of governance

109  A Arlidge, Shakespeare and the Prince of Love: The Feast of Misrule in the Middle Temple (London, Giles de la Mare, 2000) 60. 110  See Dugdale, Origines Juridiciales, 156; Dugdale notes the presence of four Masters of the Revels at the Inner Temple revels of 1561: ibid, 150. On revelling, subversion and misrule (with reference to the Inner Temple revels of Christmas 1561), see Raffield, Shakespeare’s Imaginary Constitution, 117–26. 111  See P Raffield, ‘The Separate Art Worlds of Dreamland and Drunkenness: Elizabethan Revels at the Inns of Court’, 8(2) Law and Critique 163–188. The late Elizabethan period produced numerous books and treatises on the interpretation of dreams, many of them drawing on Oneirocritica, written in the 2nd century by Artemidorus of Daldis. See, for example: R Greene, A Quip for an Upstart Courtier: Or, A quaint dispute between Velvet breeches and Cloth-breeches (London, Iohn Wolfe, 1592); T Nashe, The Terrors of the night Or, A Discourse of Apparitions (London, William Iones, 1594). On dreams and the late Elizabethan literary imagination, see Raffield, Shakespeare’s Imaginary Constitution, 127–31. 112  The elaborate sets of Jacobean masques invariably included ‘cloud-capped towers’, ‘gorgeous palaces’, and ‘solemn temples’. See, for example, The Maske of Flowers: ‘At the entrance of the King, at the lower end of the Banquetting house, appeared a Travers painted in Perspective, like the wall of a Cittie, with battlements, over which were seene the Tops of houses. In the middle whereof was a great gate, and on either side a Temple, the one dedicated to Silenus, and the other to Kawasha, in either of which opened a little gate’: IG, WD, TB, The Maske of Flowers. Presented by the Gentlemen of Graies Inne, at the Court of Whitehall, in the Banquetting House, upon Twelfe night 1613 (London, Robert Wilson, 1614) sig. A4.v. On the design of Jacobean masques, see P Simpson and CF Bell, Designs by Inigo Jones for Masques and Plays at Court: A Descriptive Catalogue of Drawings for Scenery and Costumes Mainly in the Collection of His Grace the Duke of Devonshire, KG (Oxford, Oxford University Press, 1924); also, J Peacock, ‘Inigo Jones’s Stage Architecture and its Sources’ (1982) 64 Art Bulletin 195–216.

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was inverted, and junior members of the Inns enacted the role of magistrates.113 At the end of the seasonal festivities, the authority of these licensed usurpers was ‘melted into air’, leaving ‘not a rack behind’. In The Tempest, two scenes in particular have a peculiar congruence with the Inns’ of Court revels. These are the banquet scene (3.3.20–52) and the masque of Iris, Ceres and Juno (4.1.59–142). The stage direction for the former scene reads as follows: ‘Enter several strange shapes, bringing in a banquet, and dance about it with gentle actions of salutations, and inviting the king, etc. to eat, they depart’ (SD 3.3.19). The form of the banquet described above is identical to the feasting and entertainment that were constituent parts of the revels at the Inns: ‘At night, before Supper, are Revells and Dancing; and so also after Supper’.114 The most compelling, contemporaneous account of the Elizabethan Inns of Court revels is contained in Gerard Legh’s The Accedens of Armory. Of the banquet that he attended during the Inner Temple revels of 1561, Legh observed: ‘The Prince so served with tender meates, sweete fruites & dainty delicates, confectioned with curious Cookery: as it semed wonder, a world to serve the provision.’115 The Prince to whom Legh refers was Palaphilos (High Constable of Pallas Athene), a role played at these revels by Lord Robert Dudley. Goodrich notes of the above description by Legh that the particular form and order of this banquet was ‘the order of a lawful world, a symbolic order in which Justice, Rule and Law are to be understood as being expressed together through culinary measures, victuals and wine’.116 In this symbolic context, of relevance to the banquet in The Tempest is that the ‘three men of sin’ (3.3.53)—Alonso, Antonio and Sebastian—in whose (dis)honour the banquet is given represent an unlawful world of rebellion and treason, an inversion of the natural order. It should come as no surprise therefore that, amidst thunder and lightning, Ariel enters, and ‘like a harpy, claps his wings upon the table, and with a quaint device the banquet vanishes’ (SD 3.3.52).117 The men of sin are deprived of nourishment, and (along with the audience) are reminded thereby of the symbolic connotation of dining: the creation of the bonds of friendship through which community may be recognised and embodied. There is a similar, sudden ending to the masque of Iris, Ceres and Juno, when Prospero cuts short the dance of the reapers and nymphs, as he remembers the imminence

113 

See Dugdale, Origines Juridiciales, 150. ibid, 155. G Legh, The Accedens of Armory (London, Rychard Tottel, 1576) fo 213.r. 116  P Goodrich, ‘Eating Law: Commons, Common Land, Common Law’ (1991) 12 The Journal of Legal History 246–67, 248. 117  Lindley notes that ‘The harpies were allegorized as the punishers of human sins of avarice and greed’: Lindley (ed), The Tempest, 192, note to line 52. On harpies in the Jacobean court masque, see Chapter 3, n 111, above. The reference in the above stage direction to a table, and the disappearance of the banquet, is noteworthy in the context of feasting at the Inns of Court. Each grand feast required ‘Twelve fine large Table-Cloths, of Damask and Diaper’: Dugdale, Origines Juridiciales, 153. Tables figured largely in the architecture of Hall, providing structure and enabling delineation of rank: Dugdale refers to the ‘Degrees of Tables in the Hall’, ibid, 158; on the hierarchy of dining at the Inns, see Raffield, Images and Cultures, 18–19. 114  115 

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of the plot to kill him: ‘I had forgot that foul conspiracy / Of the beast Caliban and his confederates against my life.’ (4.1.139–41) Reality, in the form of the conspirators, intrudes upon the artifice of the masque and so the spirits conjured by Prospero ‘heavily vanish’ (SD 4.1.142).118 At the Middle Temple revels of 1597–98, Le Prince d’Amour, or the Prince of Love (to which I refer throughout Chapter 1), a trial for the offence of treason was enacted as a form of masque. This returns us to the symbolic theme of love and its betrayal by the traitor; or, more precisely, the allegorisation of treason as the betrayal of love. At the Middle Temple, an elaborate trial was staged in Hall: judges were ‘seated in their due order’, and the indictment read to the defendant, one Carolus Asinius Bestia.119 The indictment included the following charge: Whereas in the Kingdom of Love all things should pass with delight and without dislike, nevertheless we are given to understand that divers and sundry persons within our Dominions, contrary to their Loyalty, have grown not onely discontent with the present State, but also not having Beauty and the beheasts of Love before their eyes, have of late attempted and put into practice divers most horrible and notorious Treasons against our Highness and Principality, State, Order and Dignity …120

That the realm over which the eponymous Prince ruled was the ‘Kingdom of Love’ is self-evident from the title of the revels, and the primacy of love in this imaginary kingdom was emphasised throughout: one of the duties of the Master of the Revels was to ensure that honourable gentlemen of the Inn ‘Love beyond measure’.121 In a ‘scornful and disdainful spirit of discontent’, the defendant (according to the charge) ‘didst utter these prophane, beastly, odious, execrable, hellish, abominable, savage, heinous, horrible and traitorous speeches against the high and sacred Majesty of Love’.122 The defendant was found guilty as charged; the sentence of the court was that this ‘discontented Lover’ should be imprisoned ‘in the Fort of Fancy, there to remaine fasting from Favors, and feeding on Malancholy till thou hast paid thy Fine and ransome, which shall be an Oration in praise of Love, and of his Excellency.’123 The trial ended with a sentence being passed against Jealousy, ‘the onely mover and stirrer of all intestine Sedition in this Kingdom of Love’. Jealousy was banished to ‘the Kingdome of the Amazones’, where he would be delivered into the custody of ‘Penthesilea the Queen of that Country’: there being

118  On the sudden dissolution of the masque in The Tempest, Nuttall argues that ‘The whirling tempest that began the play has turned into a maelstrom of vanishing fictions’: Nuttall, Shakespeare the Thinker, 374. 119  B Rudyerd, Le Prince d’Amour, or the Prince of Love (London, William Leake, 1660) 47. 120  ibid, 48. 121  ibid, 31. In an earlier passage, Elizabeth I is credited with creating the ‘Laws of Friendship’ between men, ibid, 11. On the Gray’s Inn revels of 1594 and the ‘archetypal representations of male love and friendship drawn from the ancient world’, see Raffield, Shakespeare’s Imaginary Constitution, 72. 122 Rudyerd, Le Prince d’Amour, 52. 123  ibid, 76.

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‘only women and want of men … the flame of jealousie being destitute of fuel, thy disordinate humor may at the last be dryed up with famine’.124 By the end of the mock trial, the overriding theme has mutated from vengeance into reconciliation and forgiveness. Jealousy has been banished, and the defendant has not been sentenced to a gruesome death, as would have been the case upon a finding of guilt in a real treason trial of the period. Rather, he has been required first to reflect (in the ‘Fort of Fancy’) on the meaning of love, then publicly to praise love in an oration. There is a peculiar conformity here with the theme of forgiveness in The Tempest. At the end of the play, Prospero chooses not to punish the three men of sin, but to forgive them: Though with their high wrongs I am struck to th’quick, Yet, with my nobler reason,’ gainst my fury Do I take part. The rarer action is In virtue, than in vengeance. They being penitent, The sole drift of my purpose doth extend Not a frown further. (5.1.25–30)

The speech that follows this, which ends with Prospero abjuring his ‘rough magic’, starts with the magician paraphrasing Arthur Golding’s translation of Medea’s incantation in Book VII of Ovid’s Metamorphoses: ‘Ye elves of hills, brooks, standing lakes, and groves, / And ye that on the sands with printless foot / Do chase the ebbing Neptune’ (5.1.33–35).125 Bate argues that the renunciation of Ovidian magic by Prospero ‘marks a movement away from the pagan world towards Christian “kindness”.’126 Kindness in the form of forgiveness is ‘The rarer action’ to which Prospero refers, and in the last act of the play strong allusion is made to the Judaeo-Christian emphasis on forgiveness, as enjoined in The Gospel According to St Luke: ‘But I say unto you which hear, Love your enemies, do good to them which hate you’ (7.27).127 The conspiracy between Antonio and Sebastian to murder Alonso would ‘justify you traitors’ (5.1.128), Prospero informs the putative regicides, but ‘At this time / I will tell no tales’ (5.1.128–29); and while he does not own to loving his brother Antonio, ‘whom to call brother / Would even infect my mouth’ (5.1.130–31), 124  ibid, 77. On Penthesilea and the ancient tribe of female warriors known as the Amazons, see A Mayor, The Amazons: Lives and Legends of Warrior Women Across the Ancient World (New Jersey, Princeton University Press, 2014). 125  In Golding’s translation, Medea’s incantation is almost identical to Prospero’s: ‘ye Elves of Hilles, of Brookes, of Woods alone, / Of standing Lakes, and of the Night approache ye everyehone’; The xv. Bookes of P. Ovidius Naso, entytuled Metamorphosis, A Golding (trans) (London, Willyam Seres, 1567) 83.v, Bk VII.197–98. 126 Bate, Shakespeare and Ovid, 252. 127  Shakespeare had addressed the theme of sin and forgiveness some years before The Tempest, in Measure for Measure. See Chapter 1, n 170, above. On Isabella’s ‘sheer, reckless forgiveness’ of Angelo as ‘the kind Christ advocates in the Sermon on the Mount’, see EM Pope, ‘The Renaissance Background of Measure for Measure’ (1949) 2 Shakespeare Survey 66–82, 79; also, Raffield, Shakespeare’s Imaginary Constitution, 197, fn 74.

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Prospero announces publicly that ‘I do forgive thy rankest fault—all of them’ (5.1.131).128 In so doing Prospero instances a fundamental tenet of JudaeoChristian theology, to ‘do good to them which hate you’. His apparent conversion to the New Testament doctrine of forgiveness notwithstanding, Prospero does not renounce the pragmatic imperatives of temporal jurisdiction: in the next line he declares his intention to resume the magistracy of Milan. He ‘require[s]’ his dukedom of the usurper Antonio, ‘which perforce I know / Thou must restore.’ (5.1.133–34) Prospero may have abjured the ‘pagan world’ of Ovidian magic, but his return to the dukedom of Milan signals also a return to the secular world of realpolitik, in which the art or craft of magistracy that he professes will be tested.129 In an environment such as this, both the exhortation of St Luke to love one’s enemies and the insistent appeal of Aristotle to the common good of friendship may seem peripheral, if not irrelevant: tangential expressions of a fanciful and unattainable ideal.130 The description by Gonzalo of the utopian commonwealth in which he imagines himself to be king, of a state without either ‘magistrate’ (2.1.146) or ‘sovereignty’ (2.1.153), is derided by the traitors Sebastian and ­Antonio for its lack of logical coherence: ‘Yet he would be king’ (2.1.153) of a realm with no sovereign ruler. The expressed wish of Gonzalo ‘T’excel the Golden Age’ ­arguably represents unrealistic longing for a mythologised past, but of all the characters in the play Gonzalo probably comes closest to embodying the ­Aristotelian idea that friendship is as important to the benevolent governance of the state as justice itself. The fusion of Judaeo-Christian principles of forgiveness with classical propositions on the primacy of friendship served a practical purpose, reminding Jacobean audiences of the threat posed by tyranny to the political and constitutional status of the citizen and subject of law: In the perverted constitutions friendship, like justice, is little found, and least in the worst; for in a tyranny there is little or no friendship. For where there is nothing in common between ruler and ruled there is no friendship either, just as there is no justice.131

128 On forgiveness and ‘Making Good in The Tempest’, see S Beckwith, Shakespeare and the Grammar of Forgiveness (Ithaca, Cornell University Press, 2011) 147–72. Anne Barton argues that the forgiveness of Antonio by Prospero ‘is scarcely the pardon of a Christian, or a truly forgiving man’: W Shakespeare, The Tempest, A Barton (ed) (London, New Penguin Shakespeare, 1996) Introduction, 38. The most dramatic example of forgiveness for the crime of treason during the reign of James I was the pardon issued by the King, moments before the conspirators in the Main and Bye plots were due to be executed in December 1603; see n 101, above. 129  Hadfield argues that Prospero will return to a Milan unchanged since his hasty departure, ‘dominated by intrigues and the cruelties of civil wars rather than the exotic transgressions of a Caliban’: Hadfield, Shakespeare and Renaissance Politics, 224. 130 On friendship between citizens as the central component of the Aristotelian polis, see A MacIntyre, After Virtue: A Study in Moral Theory (Indiana, University of Notre Dame Press, 2007) 155–56. 131 Aristotle, The Nicomachean Ethics, 220, Bk VIII.XI.1161a30–35. On the proposed political union between England and Scotland, James I had alluded to Aristotelian ‘friendship’ in his speech to Parliament of 31 March 1607; see Chapter 4, text to n 187, above.

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III.  Enchanted Islands of Common Law On 30 June 1521, the Lord Lieutenant of Ireland, Sir Thomas Howard, Earl of Surrey, wrote to Henry VIII from Dublin. In his letter he expressed the forthright opinion that ‘Ireland will never be reduced, except by conquest’. He requested an army of 6,000 men to accomplish the conquest. It was important also, he stressed, that the King should ‘send over English colonists to the conquered lands; for Irishmen will return to their old customs on the first opportunity.’ He promised the King that he was ‘making ready to do the most hurt he can to the Irishmen of the West, who are in a league to injure the King’s subjects’.132 The discourse of violence and oppression characterised not only the letter of Surrey to Henry VIII, but also the conduct of the Earl while acting as Lord Lieutenant of Ireland.133 Henry VIII favoured a more conciliatory, politic approach, stating in a ‘Memoranda for Ireland’, issued in March 1520, that he ‘had sent his Deputy [the Earl of Surrey] thither to reduce the land to order, not intending to make war against any who will do their duty, nor to take anything from any man who is lawfully entitled to it’.134 It is not my intention in the final section of this chapter to write a concise history of the conquest of Ireland by England in the sixteenth century;135 rather, it is to explore the idea of colonialism as a metaphor for magisterial control over all subjects, whether exercised through overt force or political diplomacy. To this end, the restricted geography of the island (be it Ireland, Bermuda or other islands of the New World) may be said to have facilitated the microcosmic configuration of the state. It is tempting to interpret the relationship between Prospero and Caliban as a political allegory of the relationship between coloniser and colonised, and in more general terms as that between ruler and subject.136 It is evident from the dialogue in their first scene together that Prospero initially exercised control over

132  Quoted in JS Brewer (ed), Letters and Papers, Foreign and Domestic, Henry VIII, 21 vols (London, HMSO, 1867) 3, Part 1: 551. Extracts from the same letter are quoted in G Morton, Elizabethan Ireland (London, Longman, 1971) 136–37. 133  See ibid, 18. 134  ‘Memoranda for Ireland’ in Brewer (ed), Letters and Papers, 3, Part 1: 222. 135  For a summary of the history of Elizabethan Ireland, see D Beers Quinn, The Elizabethans and the Irish (Ithaca, Cornell University Press, 1966); also, NP Canny, The Elizabethan Conquest of Ireland: A Pattern Established, 1565–76 (Hassocks, Harvester Press, 1976). 136  Regarding control of the subject, Jordan argues that the action of the play presents ‘a fantasy about controlling other people’s minds’, Jordan, Shakespeare’s Monarchies, 148, fn 2; she further notes that Caliban is ‘the subject of absolute rule whether in or out of England’, ibid, 171, fn 39. Patterson claims that in The Tempest, Shakespeare ‘intended a contribution to a philosophical debate on colonialism and race relations that was already surfacing in the Europe of his day’: AM Patterson, Shakespeare and the Popular Voice (Cambridge, Basil Blackwell, 1989) 156; but Skura sounds a cautionary note: ‘we have no external evidence that seventeenth-century audiences thought the play referred to the New World. In an age when real voyages were read allegorically, the status of allegorical voyages like Prospero’s can be doubly ambiguous’, MA Skura, ‘Discourses and the Individual: The Case of Colonialism in The Tempest’ (1989) 40 Shakespeare Quarterly 42–69, 47–48.

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Caliban through kindness, and then (following the attempted rape of Miranda by Caliban) through violence: ‘When thou cam’st first / Thou strok’st me and made much of me’ (1.2.333–34), laments Caliban. Subsequently, control over the slave is exercised by Prospero through the threat of corporal punishment: ‘thou shalt be pinched / As thick as honeycomb, each pinch more stinging / Than bees that made ’em.’ (1.2.329–31) Paul Brown argues that whilst Irish colonial discourse was not a source of ‘phraseology’ in The Tempest, we should note ‘a general analogy between text and context’, between Shakespeare’s enchanted island and Jacobean Ireland.137 There is considerable historical evidence for the claim made by Brown that, to the Englishman’s eye, the Irish represented ‘the savage other [who] needed to be civilized, conquered, dispossessed.’138 Other critics have gone further than noting the above ‘general analogy’: Barbara Fuchs, for example, states that Caliban’s cloak or gabardine (under which Trinculo creeps, to shelter from the storm)139 is ‘a signal of the play’s Irish context.’140 For Fuchs, Caliban may be understood in symbolic terms, as ‘the Irish subject in need of civilizing.’141 It is, of course, debatable whether or not Shakespeare intended such an explicit level of identification between Caliban and ‘the Irish subject’, although it is noteworthy that the ‘Wilde Irish man’, shrouded in a rough cloak or gabardine, figured among the illustrations in John Speed’s The Theatre of the Empire of Great Britaine, dedicated to James I and published in 1611 (see illustration in bottom left corner of Figure 21).142 Speed perpetuated the myth of the Irish savage in need of civilisation: in a passage concerning the eating habits of inhabitants of the British Isles, he wrote of ‘the Anthropophagi of Ireland, who used to feed on the buttocks of boies, and womens paps, as their most dainty and delicate dish’.143 The language of oppression and subjugation was incorporated into the treatise on Ireland written by Sir John Davies, based on his experiences first as SolicitorGeneral for Ireland and then as Attorney-General for Ireland, entitled A discoverie of the true causes why Ireland was never entirely subdued nor brought under obedience of the Crowne of England, until the beginning of his Maiesties happie raigne

137  P Brown, ‘“This thing of darkness I acknowledge mine”: The Tempest and the discourse of colonialism’ in J Dollimore and A Sinfield (eds), Political Shakespeare: Essays in Cultural Materialism (Manchester, Manchester University Press, 1994) 48–71, 57. 138  ibid, 55. 139  ‘My best way is to creep under his gaberdine; there is no other shelter hereabout.’ (2.2.34–35) 140  Fuchs argues that the cloak ‘is the only native artifact allowed Caliban’: Fuchs, ‘Conquering Islands’, 48. 141  ibid, 53. 142  Towards the end of the play, prior to the restoration of his dukedom, Prospero resolves to discard his ‘magic garment’. As already noted, he orders Ariel: ‘Fetch me the hat and rapier in my cell. [Exit Ariel] / I will discase me, and myself present / As I was sometime Milan.’ (5.1.84–86) See text to n 79, above. Suitably attired, Prospero would presumably have resembled ‘The Gentleman of Ireland’, depicted on the left of Figure 21. 143  J Speed, The Theatre of the Empire of Great Britaine (London, Iohn Sudbury & Georg Humble, 1611) 167.

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(published in 1612, the year after the publication of Speed’s Theatre of the Empire of Great Britaine). Whether or not Davies was influenced by The Tempest is a matter of conjecture, but his use of maritime imagery is a notable feature both of A discoverie of the true causes why Ireland was never entirely subdued and the preface to Le Primer Report des Cases (published in 1615). In the former work, he referred to Ireland as ‘this inconstant Sea-Nimph’;144 while in the latter, he likened common lawyers to ‘good Pilots, who though their skill bee best tried in a long & difficult voiage, do rather desire faire weather, & a speedy arrivall with their passengers in the haven.’145 Of the civil law, Davies noted disparagingly that ‘the Civilians themselves confesse, that their lawe is a sea full of waves, the Text whereof being digested into so many volumes’.146 By contrast, common law was formed from the ‘wisdome & experience’ of English people; it was manifestly an ancient jurisprudence, at once mystical, natural and immemorial: ‘like a silke worme that formeth all her webb out of her selfe onely’.147 Davies’s A discoverie of the true causes is notable for the ambivalence expressed by its author towards the Irish people. On the one hand, it incorporates the language of colonialism and violent conquest, complaining that ever since ‘the first overture was made for the Conquest of Ireland’ (between 1169 and 1171, in the reign of Henry II), the project of settlement and plantation had never succeeded because ‘a barbarous Country must be first broken by a warre, before it will be capable of good Government’.148 According to Davies, the military forces sent by the crown to Ireland ‘were ever too weake to subdue and master’ the Irish 144  J Davies (Sir), A discoverie of the true causes why Ireland was never entirely subdued nor brought under obedience of the Crowne of England, until the beginning of his Maiesties happie raigne (London, Iohn Iaggard, 1612) 11. In The Tempest, Prospero orders Ariel: ‘Go make thyself / Like to a nymph o’th’sea.’ (1.2.301–302) Thus transformed, Ariel informs Ferdinand (in song) that his father, Alonso, has drowned: ‘Sea-nymphs hourly ring his knell’ (1.2.402). On Ariel as ‘the colonizer’s fantasy of a pliant, essentially accommodating, and useful subject’, see Fuchs, ‘Conquering Islands’, 53. 145 Davies, Le Primer Report, ‘A Preface Dedicatory’, sig. *5.v. 146  ibid, sig. *4.v. Coke used the identical image to assert the inferiority of civil law to common law: ‘Upon the Text of the Civill Law, there be so many glosses and interpretations … That it is like a Sea full of waves.’ By contrast, the ‘Expositions or Commentaries’ of the common law judiciary ‘shall (as we conceive) produce certainty, the Mother and Nurse of repose and quietnesse, and are not like to the waves of the Sea’; E Coke (Sir), The Second Part of the Institutes of the Lawes of England (London, M Flesher and R Young, 1642) ‘A Proeme’. The polemical tone of Davies’s ‘Preface Dedicatory’ contrasts starkly with the content of the law reports themselves, in which (as Pawlisch notes) ‘the Irish AttorneyGeneral cited the civil and canon laws as frequently as statute law in active Irish litigation’, Pawlisch, Sir John Davies, 167–68. On the Irish Reports of Davies, see also, Pocock, The Ancient Constitution, 32–35. Pawlisch takes issue with ‘conventional notions of an insular common law mentality’, as proposed by Pocock, arguing that while this assessment may be true of Coke, it is inaccurate when applied to the Irish Attorney-General, Davies: Pawlisch, Sir John Davies, 167. 147 Davies, Le Primer Report, ‘A Preface Dedicatory’, sig. *2.v. It is possible that Davies’s use of the silk worm simile was inspired by contemporaneous reports of colonists, reporting prolific numbers of silk worms found in the New World: ‘In manie of our iourneyes we found silke wormes fayre and great: as bigge as our ordinary walnuttes’, Thomas Hariot, A briefe and true report of the new found land of Virginia (Frankfurt, Iannis Wechel for Theodor de Bry, 1590) 7. 148 Davies, A discoverie of the true causes, 5. For a critique of Davies’s A discoverie of the true causes, see Pocock, The Ancient Constitution, 59–62. On the conquest of Ireland by Henry II, see MT Flanagan, Irish Society, Anglo-Norman Settlers, Angevin Kingship (Oxford, Oxford University Press, 1989).

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people.149 On the other hand, he expressed sympathy for the indigenous population, noting that they were ever held by the English to be ‘Aliens, or rather enemies to the Crowne of England’,150 and further asking that ‘If the King woulde not admit them to the condition of Subiects, how could they learn to acknowledge and obey him as their Soveraigne?’151 Davies was clearly enchanted by the natural beauty and fecundity of Ireland, sounding a poetic note that recalls the tone of awed wonder in which Caliban described the island of The Tempest: an isle ‘full of noises, / Sounds, and sweet airs, that give delight and hurt not’ (3.2.127–28), and one with an abundance also of natural provision, such as berries, fish, crabs, ‘pig-nuts’ (2.2.145), ‘clustr’ring filberts’ (2.2.148) and other indigenous foodstuffs.152 There are echoes too of Gonzalo’s utopian meditation on the ‘plantation of this isle’ (2.1.140) in Davies’s invocation of an Irish pastoral: I have observed the good Temperature of the Ayre; the Fruittinesse of the Soyle; the pleasant and commodious seats for habitation; the safe and large Ports and Havens lying open for Trafficke, into all the West parts of the world; the long Inlets of many Navigable Rivers, and so many great Lakes, and fresh Ponds within the Land; (as the like are not to be seene in any part of Europe) the rich Fishings, and Wilde Fowle of all kinds; and lastly, the Bodies and Minds of the people, endued with extraordinarie abilities of Nature.153

The reference by Davies to ‘rich Fishings, and Wilde Fowle’, and the inventory of fish, fruit and other comestibles, provided by Caliban in The Tempest, recall the early seventeenth-century descriptions of eatables readily to be found in the E ­ nglish colony of Virginia. These were extensively listed in Thomas Hariot’s A Briefe and true report of the new found land of Virginia, the subtitle of which is: Of the commodities and of the nature and manners of the natural inhabitants. The natural ‘commodities’ to which the subtitle refers include chestnuts, walnuts, medlars, grapes, strawberries, mulberries and metaquesunnauk: ‘a kinde of pleasaunt fruite almost of the shape & bignes of English peares’.154 Wildfowl included ‘Turkie cockes and Turkie hennes: Stockdoves: Partridges: Cranes: Hernes: & in

149 Davies, A discoverie of the true causes, 6. On the prosecution of the Irish wars in the 1590s, see J McGurk, The Elizabethan Conquest of Ireland (Manchester, Manchester University Press, 2009). 150 Davies, A discoverie of the true causes, 102. 151  ibid, 117. 152 Caliban tells Stephano that ‘I’ll get thee / Young scamels from the rock.’ (2.2.148–49) The ­general, critical consensus is that a ‘scamel’ is either a type of mollusc (possibly a limpet) or a type of gull (‘seamew’). See Lindley (ed), The Tempest, 173, note to line 149; also, B Lloyd, ‘“Scamels” in The Tempest’ (1924) 19 The Modern Language Review 102–103. For the argument that ‘scamel’ was a familiar name for the sheldrake, see WA Osborne, ‘“Scamels” in The Tempest’ (1925) 20 The Modern Language Review 73. 153 Davies, A discoverie of the true causes, 1–2. 154 Hariot, A briefe and true report, 18.

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winter great store of Swannes & Geese.’ There was also an abundance of fish, including sturgeon, herring, ‘Troutes, Porpoises, Rayes, Oldwives, Mullets, Plaice’.155 The publisher Theodor de Bry provided his own engravings, included in Hariot’s Briefe and true report, entitled ‘The True Pictures and Fashions of the People in that Parte of America Now Called Virginia’ (translated from Latin into English by Richard Hackluyt). The illustration on the page entitled ‘The arrival of the Englishemen in Virginia’ shows an archipelago off the coast of Virginia. A fleet approaches the islands, but five of its ships have foundered on the rocks. A fantastical sea-monster (with strange, leonine head), as big as the largest ship in the picture, rises from the depths and bares its teeth at the nearest vessel (see Figure 12).156 The author relates that the narrow inlets between the small islands were shallow ‘and full of dangerous flatts’, but that eventually a safe passage was found, allowing access to ‘a Good bigg yland’, called Roanoac. The inhabitants were suspicious, never having ‘seene men apparelled like us, and camme a way makinge out crys like wild beasts or men out of their wyts’. The colonists placated the native population with various trinkets and ‘trifles’, which delighted them: ‘Soe they stood still, and percevinge our Good will and courtesie came fawninge uppon us, and bade us welcome.’157 The idyllic portraits painted by Hariot, Hackluyt and de Bry in the 1590 edition of A Briefe and true report of the new found land of Virginia served well the Elizabethan fantasy of establishing an English colony in the New World, modelled on the utopian trope of a temperate, hospitable island. The locale was replete with natural bounty, and its exotic natives were fundamentally biddable and responsive to the civilising manners of the colonists. John Smith’s A True Relation of such occurrences and accidents of noate as hath hapned in Virginia, published in 1608 (some 20 years after the first edition of Hariot’s A Briefe and true report), is a salutary reminder of the violent reality of colonial existence in Virginia; but it is notable also for the ambivalence (or confusion) conveyed by its author concerning the indigenous population (a trait shared with Davies’s treatise on Ireland, A discoverie of the true causes). Near the start of his account, Smith adopts a style that is identical to Hariot’s and de Bry’s mode of expression: he describes a fertile land, rich in natural provision. It is inhabited by a populace possessed of innate benevolence and endowed with a childlike propensity for the enjoyment of innocent pleasures, engendered by the bestowal of gifts: The two and twenty day of Aprill, Captain Newport and my selfe with divers others, to the number of twenty two persons, set forward to discover the River, some fiftie or sixtie

155  ibid, 20. Various shellfish are listed, any of which might have been translated by Shakespeare as ‘scamels’ (see n 152, above): ‘Sea crabbes’, ‘Scalopes’, ‘Seekanauk, a kind of crustie shell fishe which is good meate’, Hariot, A briefe and true report, 21. 156  Sir Walter Raleigh commissioned the colonist John White to paint the illustrations, from which de Bry made the engravings; see R Hackluyt (trans), ‘The True Pictures and Fashions of the People in that Parte of America Now Called Virginia’, title page, in T Hariot, A briefe and true report. In 1587, White was appointed governor of the colony on Roanoke Island, which became known as the ‘Lost Colony’. 157  Hackluyt (trans), ‘The True Pictures and Fashions’, unpaginated, plate 2; see text to Figure 12.

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miles, finding it in some places broader, & in some narrower, the Countrie (for the moste part) on each side plaine high ground, with many fresh Springes, the people in all places kindely intreating us, daunsing and feasting us with strawberries, Mulberies, Bread, Fish, and other their Countrie provisions wherof we had plenty: for which Captain Newport kindely requited there least favours with Bels, Pinnes, Needles, beades or Glasses, which so contented them that his liberallitie made them follow us from place to place, and ever kindely to respect us.158

The prelapsarian idyll is short-lived, to be supplanted only a few pages later by a narrative of mistrust, hatred and violent reprisal. The ‘salvages’ (as described by Smith) were duplicitous: ‘I knew their faining love is towards me, not withort a deadly hatred’.159 According to the author, the natives had stolen a number of tools from the fort in which the colonists were billeted: ‘Spades, Shovells, swords, or tooles they had stolne’. Hostages were taken from the indigenous population and imprisoned in the fort. They would have been hanged, had the tools not been returned by their compatriots. Eventually an exchange of prisoners took place (the natives ‘had taken two of our men, ranging in the woods, which mischief no punishment will prevent but hanging’), and the governing council of the colony recommended that Smith should ‘terrifie them with some torture, to know if I could know their intent’. Having threatened them, ‘first with the rack, then with Muskets’, Smith extracted little information other than the obvious: the native tribes (the ‘Paspehegh, the Chickahamaniar, Youghtanum, Pamaunka, Mattapanient, & Kiskiack’) had intended ‘to surprise us at worke, to have had our tools’.160 I have noted above that Prospero exercises control over Caliban by the threat of violence.161 The magician says he will inflict ‘cramps’ and ‘side-stitches’ on his deformed slave, and set ‘urchins’ to ‘exercise on thee’ (1.2.329). Caliban attempted to rape Miranda and conspired to murder Prospero, but he also embodies the ambivalent nature of the ‘savage’, as described by Davies regarding the Irish, and Smith regarding the native Americans. Prospero may have taught Caliban the ­requisite linguistic skills ‘to curse’ (1.2.364), but his slave learnt much else besides. He describes with childlike innocence (and great poetic imagination) the beauty of the island, the ‘thousand twangling instruments’ (3.2.129) that ‘hum about mine ears’ (3.2.130), and the voices that lull him to sleep, when he dreams of ‘riches / Ready to drop upon me’ (3.2.133–34). Prospero describes Caliban as his servant—‘Whom now I keep in service’ (1.2.286)—and slave, but prior to the attempted violation of Miranda by Caliban their relationship was marked by affection and kindness: not only did Prospero stroke Caliban, as a father might his son

158  J Smith, A True Relation of such occurrences and accidents of noate as hath hapned in Virginia since the first planting of that Collony (London, W.W. for Iohn Tappe, 1608) sig. A3.v. On Smith, see n 38, above. 159 Smith, A True Relation, sig. E2.r. 160  ibid, sig. E2.v. 161  See text to nn 136–38, above.

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(or an owner his pet), but he also gave him ‘Water with berries in’t’ (1.2.334–35). In return for this kindness, Caliban ‘showed thee all the qualities o’th’isle, / The fresh springs, brine-pits, barren place and fertile’ (1.2.338–39).162 In this respect, the deterioration of the relationship between Prospero and Caliban mirrors the above description by Smith in A True Relation, where an association characterised by kindness and mutual respect between colonists and native Americans mutated into one marked by duplicity, suspicion and violence. No such relationship of intimacy between colonists and colonised is to be found in the Lawes Divine, Morall and Martiall, as collated by William Strachey between 1610 and 1611. A notable feature of the lives of the colonists, gleaned from this book of (mainly martial) laws, is not only the high level of regulation to which the inhabitants of the Jamestown fort were subjected, but also the religiosity and missionary zeal with which the plantation project was conducted.163 In a dedication to the Lords of the Council of Virginia, Strachey enjoined the governors of the colony to ‘imitate your maker in his will, / To have his truth in blackest nations shine’. The theme of conquest by the godly is central to an analogy he drew between the Jamestown colony and Spanish Christians in the period of the Reconquista: ‘And where white Christians turne in maners Mores / You wash Mores white with sacred Christã bloud’.164 The obvious implication of the above analogy is that the colonists were reclaiming land that they believed was theirs by divine right. The last seven pages of the book consist of ‘A Praier duly said Morning and Evening upon the Court of Guard, either by the Captaine of the watch himselfe, or by some one of his principall officers.’165 The prayer includes a powerful invective directed at Roman Catholics and actors, among other misbelievers: And wheras we have by undertaking this plantation undergone the reproofs of the base world, insomuch as many of our owne brethren laugh us to scorne, O Lord we pray thee fortiffe us against this temptation: let Sanballat, & Tobias, Papists & players, & such other Amonits & Horonits the scum & dregs of the earth, let them mocke such as helpe to build up the wals of Jerusalem, and they that be filthy, let them be filthy still, & let such

162  The theme of contested sovereignty is central to this speech (as it is to the entire play): Caliban complains to Prospero that the island was his ‘by Sycorax my mother, / Which thou tak’st from me.’ (1.2.332–33) Orgel argues that the appeal to inheritance was unnecessary: ‘the claim could derive from the mere fact of prior possession’; he makes the further observation that if Caliban were illegitimate— ‘got by the devil himself / Upon thy wicked dam’ (1.2.320–21)—then his claim to rightful inheritance of the island would be invalid: Orgel (ed), The Tempest, Introduction, 25. 163  Examples of laws for the enforcement of religious conformity include: ‘That no man blaspheme Gods holy name upon paine of death, or use unlawfull oaths, taking the name of God in vaine, curse, or banne, upon paine of severe punishment for the first offence so committed, and for the second, to have a bodkin thrust through his tongue’: W Strachey, For the Colony in Virginea Britannia. Lawes Divine, Morall and Martiall, etc. (London, Walter Burre, 1612) sig. B2.r. 164  ibid, sig. A1.r. The Reconquista spanned the period between the Islamic conquest of Christian Iberia in the early eighth century and the fall of Granada in 1492. See JF O´Callaghan, Reconquest and Crusade in Medieval Spain (Philadelphia, University of Pennsylvania Press, 2003); also, DW Lomax, The Reconquest of Spain (London, Longman, 1978). 165 Strachey, For the Colony, sig. N.v.

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swine still wallow in their mire, but let not ye rod of the wicked fal upon the lot of the righteous …166

The prayer ends on a note of xenophobic fervour, championing and correlating the tenets of Christianity, nationalism and imperial conquest: ‘That when the heathen do know thee to be their God, and Jesus Christ to be their salvation, they may say, blessed be the King & Prince of England, & blessed be the English nation’.167 Like the Israelites of the Old Testament, the English were God’s chosen people: hence the reference in the above prayer to Jerusalem, and the association made by Strachey between the Holy Land and the colonists of Virginia. The Lawes Divine, Morall and Martiall, in which the prayer was published, were collated by Strachey as a direct response to the deterioration in relations between colonists and native Americans, culminating in the first Anglo–Powhatan war, which lasted from 1610 to 1614.168 My purpose here is not to analyse the causes of the war, beyond making the obvious point that the question of legitimate sovereignty over the territory of Virginia was a crucial factor. The Virginia Company was opposed to the idea of buying land from the indigenous population, and argued for the sole right of the company to settle and dispose of land as it saw fit. This was in accord with the First and Second Charters of Virginia, respectively of 1606 and 1609, in which James I assumed absolute sovereignty over the whole of the territory. Any doubts as to the lawfulness of these claims were dismissed by proponents of the Charters on the grounds that God had commanded the English to establish plantations in lands inhabited by heathens.169 For the remainder of this chapter, I consider the response of the English legal profession to the colonisation of the New World during the period of the first Anglo–Powhatan war, with especial reference to

166 

ibid, sig. N4.r–sig. N4.v. N4.v. In his discussion of the ‘illusion that the inhabitants of the New World are essentially without a culture of their own’, Greenblatt quotes from an entry in the journal of Christopher Columbus for 12 October 1492, regarding native Americans: ‘He [Columbus] thinks, too, that they would easily be converted to Christianity, “because it seemed to me that they belonged to no religion.”’, Greenblatt, ‘Learning to Curse’, 24. 168  The Powhatan was a confederacy of Algonquian tribes in the area of eastern Virginia. The Powhatan chief, Wahunsonnacock, sought ‘imperial’ expansion through unification of the Algonquian tribes under his chiefdom, thereby controlling the economy of eastern Virginia through the imposition of tribute. See MJ Puglisi, ‘Capt. John Smith, Pocahontas and a Clash of Cultures: A Case for the Ethnohistorical Perspective’ (1991) The History Teacher 97–103. On the history of the Powhatan during this period, see HC Rountree, Pocahontas’s People: The Powhatan Indians of Virginia Through Four Centuries (Norman, University of Oklahoma Press, 1990) 3–55. 169  The First Charter of Virginia included the following clause: ‘We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God …’ Sir Edward Coke assisted in drafting the Charter, between March and April 1606. Keith Glenn notes that ‘the Virginia Company enlisted the aid of a number of prominent clergymen (John Donne was one of them) who preached sermons, afterwards printed, to aid the cause of the Virginia colony’: K Glenn, ‘Captain John Smith and the Indians’ (1944) 52 The Virginia Magazine of History and Biography 228–48, 228. 167  ibid,

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the depiction of native Americans in two Inns of Court masques: The Memorable Maske of the two Honorable Houses or Inns of Court: the Middle Temple, and Lyncolns Inne and The Maske of Flowers: Presented by the Gentlemen of Graies-Inne. Both masques were performed in the presence of James I at the Banqueting House: the former on 15 February 1613, to celebrate the marriage between Frederick V, Elector Palatine, and Princess Elizabeth, the daughter of James I; the latter on 6 January 1614, to celebrate the marriage between Robert Carr, Earl of Somerset, and Lady Frances Howard. Despite the stated proposal of honouring ‘the all-grace-deserving Nuptialls, of the thrice gracious Princesse Elizabeth, his Highness daughter’,170 The Memorable Maske (written by George Chapman) was dedicated not to the newly wedded couple, but to two eminent members of the English legal profession: the AttorneyGeneral, Sir Henry Hobart, and the Master of the Rolls, Sir Edward Phelips. The ‘Noble and Magnificent performance’ was intended to renew ‘the ancient spirit, and Honor of the Innes of Court’.171 The performers (all members of the M ­ iddle Temple and Lincoln’s Inn) processed from Phelips’s house to the Palace of Whitehall. In the ‘mock-Mask’, performed as the masquers marched to Whitehall, were three groups of characters, caricatures based on English perceptions of native Americans and their distinctive traits. The first of these were ‘Baboons, attir’d like fantasticall Travailers, in Neapolitane sutes, and great ruffes’. These were followed by ‘Virginian Priests, by whom the Sun is there ador’d; and therefore called the Phœbades’. At the rear of the procession rode ‘the Virginian Princes’, attired ‘in Indian habits, all of a resemblance: the ground cloath of silver, richly embroidered, with golden Sunns, and about every Sunne, ran a traile of gold’. While the baboons were clearly meant to represent wild beasts, and the priests pagan worshippers, the princes embodied innate nobility: they were ‘pleasingly visag’d: their hayre, blacke and lardge, waving downe to their shoulders.’172 It seems probable that the characterisations of the masquers were derived from Elizabethan accounts of the New World, which included True Pictures and Fashions of the People in that Parte of America Now Called Virginia, with engravings by de Bry. There, the idol Kiwasa is depicted (see Figure 13), accompanied by the following text: ‘Thes poore soules have none other knowledge of god although I thinke them verye Desirous to know the truthe.’173 In the same book is an illustration of a Virginian prince (‘a weroan

170  G Chapman, The Memorable Maske of the two Honorable Houses or Inns of Court: the Middle Temple and Lyncolns Inne (London, George Norton, 1613) ‘The Epistle Dedicatorie’. On the various festivities surrounding the marriage of Princess Elizabeth to the Elector Palatine, see S Smart and MR Wade (eds), The Palatine Wedding of 1613: Protestant Alliance and Court Festival (Wiesbaden, Harrassowitz in Kommission, 2013). 171 Chapman, The Memorable Maske, ‘The Epistle Dedicatorie’. 172  ibid, sig. A.v–sig. A2.v. 173  Hackluyt (trans), ‘The True Pictures and Fashions’, sig. D2.r, plate 21. The engravings were based on watercolours painted by the colonist John White, so it is reasonable to assume a level of accuracy in the illustrations. See B Bucher, Icon and Conquest: A Structural Analysis of the Illustrations of de Bry’s Great Voyages, B Miller Gulati (trans) (Chicago, University of Chicago Press, 1981).

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or great Lorde of Virginia’), whose hair is similar to that of the Virginian Princes in The Memorable Maske: ‘The Princes of Virginia … weare the haire of their heades long’.174 ‘The True Pictures and Fashions of the People’ was published in 1590: its tone reflects unfounded Elizabethan optimism regarding the peaceful consummation of the colonial project in Virginia. John Gillies has noted of The Memorable Maske that despite its Virginian imagery it was an anachronistic work: ‘more Elizabethan than Jacobean.’175 As in The Tempest, an island was the predominant topographical image of Chapman’s masque, with the significant difference in the latter that the island was depicted onstage in its physical entirety.176 Designed by Inigo Jones, the set consisted of a massive rock, ‘whose top was neere as high as the hall it selfe.’177 On one side of the rock was a temple, dedicated to the ‘cœlestiall Goddesse, Honour’.178 On the other side of the rock was a grove, at the top of which ‘appear’d a vast, wither’d, and hollow Tree, being the bare receptacle of the Baboonerie.’179 The ‘earthy Deity’ Plutus, god of riches, acted as presenter of the masque. The theme of wealth was compounded when ‘the upper part of the Rock was sodainly turn’d to a Cloude, discovering a rich and refulgent Mine of golde’.180 Raleigh’s El Dorado had spectacularly materialised in the Banqueting House.181 The ­opening of the rock face enabled the entrance of the sun-worshipping ‘Phœbades (or Priests of the Sunne)’, who emerged from the gold mine: ‘Their evening service in an Hymne addresse / To Phœbus setting’.182 Chapman employed the identical conceit to that used by Plato (as described by Montaigne in ‘Of the Caniballes’), by whose account the island of Atlantis was transported from the Strait of Gibraltar to the New World.183 In Chapman’s masque, the island was transported from the New World to England: ‘For ­hearing

174 

Hackluyt (trans), ‘The True Pictures and Fashions’, unpaginated, plate 3. Gillies, ‘Shakespeare’s Virginian Masque’, 675. Gordon notes that The Memorable Maske recalls Raleigh’s account of Guiana rather than the Virginia Council’s account of Virginia: ‘Chapman’s American land is as much Guiana as it is Virginia; in fact there is more of Guiana in it’, DJ Gordon, ‘Chapman’s Memorable Maske’ in S Orgel (ed), The Renaissance Imagination: Essays and Lectures by DJ Gordon (Berkeley, University of California Press, 1975) 194–202, 201. 176  The Tempest was also performed at court as part of the festivities celebrating the marriage of Princess Elizabeth and the Elector Palatine; see EK Chambers, William Shakespeare: A Study of Facts and Problems, 2 vols (Oxford, Oxford University Press, 1930) 1: 492. Gillies notes of this coincidence that ‘beside Chapman’s utopian masque, the dystopian mood of Shakespeare’s play must have seemed especially pointed’: Gillies, ‘Shakespeare’s Virginian Masque’, 675. 177 Chapman, The Memorable Maske, sig. a.r. 178  ibid, sig. A4.r. 179  ibid, sig. a.v. 180  ibid, sig. a2.r. 181  Gordon reminds the reader that Raleigh ‘dreamt of finding El Dorado’ in Guiana, and that in 1616 he persuaded James I to release him from imprisonment in the Tower, allowing him to return to Guiana in search of the mythical city of gold: Gordon, ‘Chapman’s Memorable Maske’, 202. See W Ralegh (Sir), The Discoverie of the Large, Rich, and Bewtiful Empyre of Guiana (London, Robert Robinson, 1596). 182 Chapman, The Memorable Maske, sigs. D2.v, D3.r. 183  See text to nn 26–28, above. 175 

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of the most royal solemnity, of these sacred Nuptialls; they crost the Ocean in their honor, and are here arriv’d’.184 Law was personified in the character of Eunomia, a priestess to the goddess Honour;185 and it is relevant to the elevated status accorded law in the masque that Eunomia should have persuaded the Phœbades to renounce their pagan rites of worship to the sun: And of your sweet devotions, turne the events, To this our Britan Phœbus whose bright skie (Enlightned with a Christian Piety) Is never subiect to black Errors night, And hath already offer’d heavens true light, To your darke Region, which acknowledge now; Descend, and to him all your homage vow.186

The Phœbades were persuaded to make a political (rather than a religious) conversion, subjecting themselves to the providential kingship of James I. Thus convinced, the Virginian priests descended from the rock and paid homage to ‘our Britan Sun’,187 King James. In Chapman’s masque, law (depicted by the female persona of Eunomia) was ‘a Virgine Priest consecrated to’ the service of Honour.188 According to classical mythology, Eunomia (an ancient Greek goddess of law and legislation) was the daughter of Themis and Jove, and the sister of Dikê and Eirene. In the western legal tradition, from classical antiquity to the early modern period, iconographic representations of law and justice were exclusively female. For the Byzantine Emperor Justinian, law was the queen of all things divine and human [‘Lex est omnium divinarum & humanarum rerum Regina’];189 while in the early seventeenth century, Selden quoted the proverb, ‘the Lady Common Law must ly alone’.190 The goddess Honour to whom Eunomia acted as priest or minister was the symbolic originary and source of legitimate authority for the institution of law. Regarding the English legal profession, I have referred throughout to the attribution by Fortescue of a sacerdotal role.191 When Fortescue compared the formulation and

184 Chapman, The

Memorable Maske, sig. a3.v. Gordon argues in connection with the characters of Honour and Eunomia that, in Aristotelian terms, the function of honour is to maintain the order both of earthly society and the universe: ‘The expression of this fundamental order is law. Honour therefore must come within the rule of Law’, Gordon, ‘Chapman’s Memorable Maske’, 197. 186 Chapman, The Memorable Maske, sig. D4.v. 187  ibid, sig. E2.v. 188  ibid, sig. a4.r. 189 Justinian, The Digest, 1.3.2; Justinian was quoting from the Greek Stoic philosopher, Chryssipus (c 280–207 BC); the translation from Greek into Latin was provided by Dugdale in Origines Juridiciales, 2. 190  ‘Nor hath the Proverbiall assertion, that the Lady Common Law must ly alone, ever wrought with mee farther then like a Badge of his Familie’: J Selden, Titles of Honor (London, Iohn Helme, 1614) Epistle Dedicatory, sig. a.3.v. 191  See n 77, above. 185 

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delivery of common law judgments to the teaching of holy things, he intended that the judiciary should be perceived as agents of divine law. By so doing, he strove to establish a source of original sovereignty that preceded and was therefore superior to the sovereignty of earthly kings.192 As the absolutist tendencies of James I became more apparent, common lawyers located the fount of supreme authority—the ‘higher’ law that sanctioned the quotidian judgments of common law—in the fictive ancient constitution,193 of which the goddess Honour in The Memorable Maske was an iconic figuration. Chapman was a poet, translator and dramatist, rather than a common lawyer; but in a work that was dedicated by its author to the Attorney-General and the Master of the Rolls, and presented by members of the Middle Temple and Lincoln’s Inn, it is reasonable to assume that Chapman was reflecting contemporaneous, institutional opinion regarding the symbolic status of law within the state. In the brave new world of which Chapman’s masque was a nostalgic manifestation (harking back to the Elizabethan dream of peaceful conquest of the Americas), the goddess Honour represented the unwritten constitution that guaranteed all subjects of common law their fundamental and inalienable rights under the benevolent rule of ‘our Britan Phœbus’, James I. Lady Frances Howard was the daughter of Lord Thomas Howard, First Earl of Suffolk. Her marriage to Robert Devereux, Third Earl of Essex, was annulled by James I on 25 September 1613, and she married the King’s favourite, Robert Carr, First Earl of Somerset, on 26 December 1613.194 The Maske of Flowers was presented by members of Gray’s Inn at the Banqueting House on Twelfth Night 1614, in celebration of this propitious match.195 As with The Memorable Maske, James I was in attendance and was likened in the masque to Phoebus. The King was ‘the great Sun of our firmament’, who ‘shines full upon

192  ‘The children of Israel, as Saint Thomas says, after God had chosen them as “his own people and holy realm”, were ruled by Him under Judges “royally and politically”’: J Fortescue (Sir), ‘The Governance of England’ in S Lockwood (ed), On the Laws and Governance of England (Cambridge, Cambridge University Press, 1997) 84. 193  Goodrich argues that there was a discernible, ‘conceptual descent from More through Richard Hooker to Coke and Davies in which the Eucharistic apparatus of presence—of authority, law—moves from theology to jurisprudence, from the Church to the State, from the sacrifice of Christ to the sacrifice of nature and of desire that founds the social contract’: P Goodrich, Languages of Law: From Logics of Memory to Nomadic Masks (London, Weidenfeld and Nicolson, 1990) 64. 194  Lady Frances Howard married Essex when she was 14 and he was 13 years old. For an account of her life, see D Lindley, The Trials of Frances Howard: Fact and Fiction at the Court of King James (London, Routledge, 1993). 195  The masque was dedicated by its authors to Sir Francis Bacon (a pre-eminent member of Gray’s Inn), who had succeeded Sir Henry Hobart as Attorney-General in October 1613. The authors of The Maske of Flowers are identified in the Epistle Dedicatory only by their initials: I.G., W.D., T.B., Maske of Flowers, sig. A.3.v. The music in this masque is attributed to John Cooper (also known as Giovanni Coperario), who may also have contributed to its authorship. On the significance of music in The Maske of Flowers, see OA Bloechl, Native American Song at the Frontiers of Early Modern Music (Cambridge, Cambridge University Press, 2008) 117–27. Bloechl notes that the Earl of Suffok, father of Lady Frances Howard, was one of the original Virginia adventurers, ibid, 117; for Bloechl’s commentary on Chapman’s Memorable Maske, see ibid, 130–38.

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your earth’,196 specifically upon ‘the principall Island of our universall Empire’,197 Britain. In the anti-masque that preceded the main Maske of Flowers, the New World was again central to the narrative. Where Chapman’s masque had emphasised the innate nobility of the ‘Virginian Princes’, the anti-masque in The Masque of Flowers offered a crude caricature of the prototypical native American. The anti-masque took the form of a comic debate between two characters, Silenus and Kawasha: ‘That Wine is more woorthie then Tobacco, and cheereth mans spirit more’.198 The character of Kawasha provided a ludicrous interpretation of the idol Kiwasa, as portrayed in de Bry’s engraving (see Figure 13). Kawasha was a grotesque, theatrical parody of the illustration in ‘The True Pictures and Fashions’, which showed a figure of serene dignity: Kawasha had on his head a Night-cap of red cloth of gold, close to his skull, tied under his chin, two holes cut in the toppe, out of which his eares appeared, hung with two great Pendants, on the crowne of his Cappe a Chimney, a glasse chaine about his necke, his body and legges of Olive-colour stuffe, made close like the skinne, bases of Tobaccocolour stuffe cut like Tobacco leaves, sprinkled with orcedure, in his hand an Indian Bow and Arrowes.199

In a ‘catch’, the supporters of Silenus declared in song their intention to ‘make this great Potan [Powhatan] / Drinke off Silenus kan: / And when that he well drunke is, / Returne him to his Munkeis’.200 Like the Phœbades of Chapman’s masque, Kawasha had crossed the Atlantic Ocean, but not to pay dutiful homage to ‘our Britan Phœbus’; rather, ‘He is come from a farre Countrey, / To make our Noses a chimney.’201 To a modern audience, the depiction of Kawasha would be considered offensive: he was represented as belonging to a family of monkeys;202 but the confrontation between Silenus (the drunken, fat, old satyr of classical mythology, supposedly the son of Pan and a nymph)203 and Kawasha, staged by lawyers in the presence of James I, provides a valuable insight into early seventeenth-century political thought concerning the interaction between old world and new. The anti-masque continued on a Bacchanalian note, with musicians ‘frumpling’ over the verses;204 but it ended harmoniously, with the supporters of Silenus and Kawasha singing and 196 

Maske of Flowers, sig. C2.v. ibid, sig. B2.r. 198  ibid, sig. B2.v. 199  ibid, sig. B3.r. 200  ibid, sig, B3.v. 201  ibid, sig. B4.r. 202 Bloechl makes the following observation: ‘the threat of using alcohol as a weapon against Eastern Woodlands people has too close a connection with subsequent colonial history to be very funny. Moreover, the song’s derogatory connection of Kawasha’s people with animals, and particularly the monkey, is a clear instance of proto-racism’, Bloechl, Native American Song, 123. 203  On the paradoxical association of the demon Silenus with the common law virtues of wisdom, humanity and compassion, see Raffield, Images and Cultures, 145–48. 204  The drunkenness of the revellers was lent emphasis by the accompanying music: ‘The Fidlers of Silenus frumpled over the last verses’, Maske of Flowers, sig. B4.r; see Bloechl, Native American Song, 119. 197 

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dancing together, before ‘they all marched out in the same order they came in, their Musicke playing.’205 In the main masque that followed, the ‘Travers[e]’ or painted frontcloth, depicting the castellated walls of a city, parted to reveal a formal garden ‘of a glorious and strange beauty’.206 Beyond the garden was ‘a Mount raised by degrees, resembling bankes of earth, covered with grass’, on top of which was an arbour, covered in eglantine and honeysuckle.207 In the arbour sat 12 ‘Garden Gods’, in whose midst was Primavera, symbolising continuance and rebirth. The masquers, disguised as flowers, emerged from arches on top of the mount, to be transformed from plants into men. The transformative powers of ‘the great Sun of our firmament’ were greater even than those exercised by the gods in Ovid’s Metamorphoses: ‘Give place you ancient powers, / That turned men to Flowers, / For never Writers pen, / Yet tolde of Flowers return’d to Men’.208 The invocation of gods and gardens, and the lyrical mode of expression, is at odds with the comedic excess of the anti-masque: such was the subversive and antithetical purpose of the anti-masque. The implicit theme of the main masque was the civilising influence of James I and his fitness to reform an uncivilised land, characterised by pagan ritual. The providential powers of the King would transform it into an integral facet of Christian empire.209 ‘Then was sung the fourth Song, having reference to the King’: All things returne with Time, But seldom do they higher clime Yet vertue soveraigne Mends al things, as they come again; This Ile was Brittaine in times past, But then was Britiain rude & waste, But now is Brittaine fit to be, A seate for a fift Monarchie. Offer we to his high deserts, (Cho.) Praises of truth, incense of hearts, By whom ech thing with gaine reverts.210

205 

Maske of Flowers, sig. B4.v. ibid, sig. C.r. Like the massive rock in Chapman’s Memorable Maske, the arbour in The Maske of Flowers was a monumental structure: ‘The Arbour was in length three and thirtie foote, in height one and twenty, supported with termes of gold and silver, it was divided into sixe double arches, and three doors answerable to the three walks of the Garden’, ibid, sig. C2.r. 208 ibid, sig. C2.v. The allusion is to the tale of Echo and Narcissus in Book III of Ovid’s Metamorphoses. 209  Bloechl argues that the ‘Algonquians’ supposedly lesser state of civility’ was evidenced partly by ‘their failure to cultivate and “settle” the land in a manner that the English recognized. In this regard, it is significant that the main masque is set in an elaborately planted garden … Indeed, the main masque arguably presents an allegory of the process of civilization’, Bloechl, Native American Song, 124–25. 210  Maske of Flowers, sig. C3.v–sig. C4.r. 206 

207 

Enchanted Islands of Common Law

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The reference in the above canto to ‘a fift Monarchie’ returns us finally to the theme of translatio imperii and its Biblical foundations in Nebuchadnezzar’s dream, as interpreted by Daniel. The dream of Nebuchadnezzar (King of the Neo-Babylonian empire, 605–562 BC) the central feature of which was a smashed image in the form of a human body made of gold, silver, brass, iron and clay, was (for Daniel) an allegory of the transience of earthly empire: the golden empire of Nebuchadnezzar would be succeeded by empires of silver, brass and iron; but all of these would eventually perish. Only the fifth monarchy, the kingdom of God on earth, ‘shall stand for ever.’211 The British empire of the Jacobean era had at its head ‘Gods Lieutenant in earth’.212 The divine provenance of King James I, so it was believed, assured the continuing and eternal success of empire in a westerly trajectory, to Ireland and beyond to the New World of the Americas.

211  The Book of Daniel, 2.31–44. On the biblical source of translatio imperii and its parallel in the story of the four ages of the earth (gold, silver, bronze and iron), as related by Ovid in Book I of Metamorphoses, see P Raffield, ‘Metamorphosis, Mythography, and the Nature of English Law’ in P Goodrich and V Hayaert (eds), Genealogies of Legal Vision (London, Routledge, 2015), 79–103, 101. 212  ‘The Trew Law of Free Monarchies’ in Sommerville (ed), King James VI and I, 72.

Afterword The mythical moment when Orpheus tamed wild beasts with both the music of his lyre and the sweetness of his voice marked in metaphorical terms the emergence of law into society, not as a science but as an art.1 The practice of law requires (as I have noted throughout this book) the application of artificial reason, and the body of municipal law that derives from this art may reasonably be described as an artefact: an object, crafted by the human imagination. Hence, the Platonic description of public law as a cord or chain, attached to citizens and connected to the gods, ‘tugging’ at the populace to make it compliant with a prescribed and divinely ordained legal order.2 Of the utmost importance to the moral credibility and culpability of any legal system is that the practice of law is coextensive with the law that it professes to expound. In other words, that the art of law is not a separate entity from law itself. This was the problematic issue identified by Abraham Fraunce in The Lawiers Logike, to which I refer in Chapter 1.3 Fraunce was not opposed per se to the acquisition of rhetorical skills as taught to students at the late Elizabethan Inns of Court, but he was astute in identifying a disjuncture between law and the particular form of legal education provided by the Inns, which (as he argued with some conviction) lacked both intellectual rigour and an ethical basis. In short, Fraunce argued that the study of law during this period provided law students with a bag of forensic tricks with which they would be equipped to bamboozle and flummox their clients. According to Fraunce, the corpus of English law was contained in a vast number of volumes, scattered randomly around; and, above all, the study of common law lacked method. It was a dark art, to which none but the privileged few were granted access. At the technical level of learning the law this was probably true, although it should be borne in mind that the critique provided by Fraunce was a polemic, the 1  When the Ciconian women hurled stones at Orpheus, ‘The first victims were the countless birds, still spellbound by the voice of the singer, the snakes and the throng of wild animals, the audience which had brought Orpheus such renown’: Ovid, Metamorphoses, MM Innes (trans) (Harmondsworth, Penguin, 1955) 246, Bk XI. On the myth of Orpheus and the origins of western law, see Chapter 3, n 56, above; Chapter 3, text to nn 125–27, above; Chapter 1, n 132, above. Hersey argues that law was ‘first conceived of as a body of ancestral edicts preserved in works of art. By the same token, the beasts Orpheus charmed are not real beasts but lawful mankind’s barbarian ancestors’: G Hersey, The Lost Meaning of Classical Architecture: Speculations on Ornament from Vitruvius to Venturi (Cambridge, Mass, MIT Press, 1988) 5. 2 Plato, The Laws, TJ Saunders (trans) (London, Penguin, 2004) 31, Bk 1.II.644e–645a; see Chapter 5, text to n 87, above. On Giambattista Vico and the derivation of ‘law’ from corda, meaning tendons, cords, or (musical) chords, see Chapter 3, text to nn 85–86, above. 3  See Chapter 1, text to n 3, above.

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aim of which was the systemisation and standardisation of common law along lines similar to the codified form of civil law. I have noted above the admonition of Sir John Dodderidge that the study of law wasted the verdure and vigour of youth.4 It took at least eight years of study at one of the Inns of Court to qualify as an utter barrister,5 in which time the arcana of English jurisprudence was absorbed and expounded in the various oral exercises that comprised the curriculum. Towards the end of the reign of Elizabeth I and at the dawn of the Jacobean era, law students and lawyers gained unprecedented access to published volumes of law reports. The Reports of Sir Edward Coke, the first 11 of which were published between 1600 and 1615, represented a departure from conventional law reporting, providing a forum for their author to write on the subject of law in a manner never before attempted (pace Plowden).6 His reporting of individual cases may have been highly opinionated, but in both the prefaces and the reports themselves Coke was effective in conveying extensive technical knowledge of common law, using literary tropes (drawn from an eclectic collection of classical, contemporary and Judaeo-­Christian sources) and employing an accessible style to make The Reports available to an educated lay audience, as well as to the readership of lawyers for which they were primarily intended. Beyond the obvious significance of The Reports as a repository or body of English law, they expressed the subliminal belief of their author that the fundamental tenets of the unwritten, ancient constitution were propounded within the pages of their numerous parts.7 Throughout this book I have argued that Coke spoke for the putative British citizen, articulating and formulating the constitutional and political relationship between subject and king. I have endeavoured to show that Shakespeare addressed similar themes in his plays, often drawing on contemporaneous juristic ideas and incorporating these into his plots. Coke betrayed the influence of Shakespeare over both his thinking and his language when he addressed the jury at the assizes in Norwich in August 1606, following his appointment to the post of Chief Justice of the Common Pleas in June of that year. In his speech to the jury he paraphrased John of Gaunt’s elegiac reflection on England, delivered in Act Two, Scene One of Shakespeare’s The Tragedie of King Richard the Second (written in 1595). In a diatribe aimed at those who were inclined to show tolerance towards Roman

4 

See Chapter 1, text to n 14, above. notes that ‘Mootemen [inner barristers], which are those that argue Readers Cases in Houses of Chancery … after eight years study, or thereabouts, are chosen Utter-Baristers’: W Dugdale (Sir), Origines Juridiciales, or Historical Memorials of the English Laws (London, F and T Warren, 1666) 144; on legal education at the early modern Inns, see Raffield, Shakespeare’s Imaginary Constitution, 167. 6  Barnes notes that The Reports ‘appeared to contain all the requisite case-law from 1572 (when Coke entered the Inner Temple) to 1616 (when he was removed from the King’s Bench).’ Further, The Reports ‘became the model for all subsequent reporting. They were probably the most frequently cited and most often argued-over reports the common law has known’: TG Barnes, Shaping the Common Law: From Glanvill to Hale, 1188–1688, AD Boyer (ed) (Stanford, Stanford University Press, 2008) 134. 7  See P Raffield, ‘Contract, Classicism and the Common-weal: Coke’s Reports and the Foundations of the Modern English Constitution’ (2005) 17 Law & Literature 69–96. 5  Dugdale

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Catholics, Coke claimed that had the Powder Plot of November 1605 succeeded in its aim of murdering the King, then ‘This Sea-Invyrond-Iland, the beauty, and wonder of the world. This so famous and farre renowm’d great Brittaines Monarchie’ would have been destroyed: ‘This so well planted, pleasant, fruitfull worlds [sic], accounted Edens paradise, should have beene by this time, made a place disconsolate, avast and desert wildernesse’.8 Thus Coke paraphrased Shakespeare, but my point is not the obvious and much cited one that the eminent judge should have borrowed and adapted entire lines from the plays of England’s greatest dramatist. It is rather that law and literature of the early modern period (specifically common law and poetic drama of the Elizabethan and Jacobean eras) inhabited a common rhetorical schema. Law in its juridical form was intrinsically dramatic, the adversarial system of English common law being predicated on an agonistic model; and Shakespearean drama borrowed from common law its overarching themes of justice, sovereignty, community, legitimacy, fairness and humanity. It has been my intention to demonstrate that in Shakespeare’s Jacobean plays the audience was witness to unprecedented representations of the political and constitutional relationship between governor and governed. As instanced in many of the cases discussed in this book, conflict was a characteristic trait of relations between crown and common law during the period under discussion. Shakespeare observed the vying claims of these occasional rivals for constitutional hegemony and, insofar as the medium of theatre was employed to portray competing paradigms of governance, he acted as dramatist and auditor of events and encounters which were to have serious political consequences, to be played out on a public stage long after the deaths of their protagonists.

8  The Lord Coke His Speech and Charge. With a Discoverie of the Abuses and Corruption of Officers (London, Christopher Pursett, 1607) sigs. F.r, F.v. Boyer notes of this speech that ‘Coke borrowed Shakespeare’s tropes and phrases. The language, briefly, even flows in iambs: fair and fertile, so well planted, pleasant, fruitful world’: AD Boyer, Sir Edward Coke and the Elizabethan Age (Stanford, Stanford University Press, 2003) 288. In Richard II, John of Gaunt describes England as ‘This royall throne of Kings, this Sceptred Ile, / This earth of Maiestie, this seate of Mars, / This other Eden, demie Paradice’: W Shakespeare, The Tragedie of King Richard the Second (London, Mathew Law, 1608) sig. C3.v.

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INDEX

A Abbot, Archbishop George  175 ‘academic plays’  28–32 Act of Supremacy  38, 170–1 Acte for Punishment of Rogues Vagabondes and Sturdy Beggars  25 Admiral’s Men  144 Aesop’s Fables  20 Agamben, Giorgio  92 Allen, Cardinal William  135 Anglo–Powhatan wars  228–9, 228n antirrhesis  45 Aristotle  12, 21, 103n, 113, 117–18, 176n, 180, 201–2 communitarian state  57, 97, 211 epieikeia  8, 8n, 18, 94 equity  94 ideal of friendship  57, 71, 211 mimesis  70 Nicomachean Ethics  112, 220n The Politics  181 rhetoric  64 Arlidge, Anthony  215–16 Arnold, Janet  148 art of law  97, 112–18, 209 and common law  2–3, 159 insincerity, falsehood and affectation  3 Justinian  97 art and nature  48–9, 112–27, 138–51, 159 Arthurian myth  154–5 Atlantis myth  200, 204, 230 Aubrey, John  76 Augustine, St de Civitate Dei  97, 102n concept of time  95 Augustus, Emperor  102, 189 Aylmer, John  131 B Babington, Anthony  85 Babington Plot  85, 88, 89, 92 Bacon, Sir Francis  164, 176, 192, 209 Attorney-General  232n Calvin’s Case  167 Gray’s Inn masques  56n, 232n letter to Coke  77–8, 78n ‘Of Gardens’  122, 122n, 123

‘Of the True Greatness of Kingdoms and Estates’  167, 183 Baker, JH  21 Bancroft, Bishop Richard  45–6, 174 barristers see also counsel; lawyers/legal profession number  38 professional status  23, 38 social backgrounds  36–7, 38–9 Bate, Jonathan  3–4 Shakespeare and Ovid  111, 204, 219 Bates, Thomas  72 Beaumont, Francis Masque of the Inner Temple and Gray’s Inn  189n Bentham, Jeremy  23, 23n Berkeley, Sir Robert  137n Bible  211 Acts of the Apostles  76 Book of Job  6 cedar and sovereignty  184, 191 Corinthians  73, 106 Ezekiel  184–5 Garden of Eden  123 Kings  105n Measure for Measure  51, 51n Nebuchadnezzar’s Dream  183–4, 235 New Testament doctrine of forgiveness  219–21 Proverbs  207 St Paul to the Ephesians  98, 155, 155n St Paul to the Romans  103 Bishops’ Ban  13, 45–7 Blackfriars Playhouse  1 Blackstone, Sir William  113–14n Bodin, Jean Les Six Livres de la République  135–6 body as metaphor of the state  73, 95, 95n, 98–100, 104, 106–7, 176–7, 190–1 Cymbeline  157, 176 James I  206–7 king as personification of state  179 St Paul  98 unified Britain  155–6, 157 Boleyn, Anne  135 Borch-Jacobsen, Mikkel The Freudian Subject  57, 59, 59n

264 

Index

Bothwell, James Hepburn, Earl of  67, 86–7, 87n Bowes, Thomas  56 Brackyn, Francis  29 Bracton, Henry de  19, 94, 103, 103n, 112, 137, 150, 151, 172–3 Bradley, AC  69–70 Bradshaw, John  106 Breight, Curt  215 Brinkley, Roberta  154 British nation anatomical representation  155–6, 157 Arthurian myth  154–5 Brutus and Troynovant myth  4, 5–8, 5n, 15, 111–12, 111–12n, 154–5, 156–7n, 157–8, 193, 203 Calvin’s Case  165–82 colonialism  14, 15–16, 17, 197–9, 201, 207, 221–35 creation  6–7, 14–15, 153–4, 155–7, 165, 168 Cymbeline  153, 156–7 James I and VI  6–7, 153–4, 165–82, 188–9 mythography  192–3 rival jurisdictions  15, 31, 153–4, 174–5, 178 Bromley, Sir Thomas  90, 129 Brown, Paul  222 Browne, William Circe and Ulysses  133, 133n Brownlow, Richard  33 Bruce, John Diary of John Manningham  34 Brutus and Troynovant myth  4, 5–8, 5n, 15, 111–12, 111–12n, 154–5, 156–7n, 157–8, 193 Cymbeline  156–7n English law  158, 203–4 Bry, Theodor de  225, 225n, 229, 233 Buchanan, George Ane Detectioun of the duinges of Marie Quene of Scottes  13, 13n, 67–8, 68n, 86, 87 De Jure Regni Apud Scotos Dialogus  68, 104 Buck, Sir George  24, 37, 38 Burby, Cuthbert  61 Burgess, Glenn  182 Burghley, Lord  85, 87, 89, 90 Burns, JH  102 Bushy, Sir John  141 Butler, Martin  185 C Cadwallader  7, 8n, 154–5, 193 Caesar, Gaius Julius The Gallic Wars  186–7 Calvin’s Case  15, 73, 112, 159, 165–82, 192 Book of Job  6 ‘the judgments of our forefathers’  6 Cambridge as centre of civil law  31 Canning, William  54

canon law  153–5 Caudrey’s Case  170–2 and common law  37–8 Henrician ban  23 seal of the confessional  78 Canterbury Eulogium  141–2 Carleton, Sir Dudley  29 Carlyle, Thomas Sartor Resartus  163 Casket letters  87, 87n, 89 Catesby, Robert  78, 81 Caudrey’s Case  170–2 Cecil, Sir Robert  75, 80, 165, 175, 176 Chamberlain, John  29 Chancey, Sir William  175 Chapman, George Memorable Masque…  202, 229–32, 229n Charles I  159, 188 trial and execution  104–7, 105n Charles II  153 Cicero  12, 20, 201–2 body politic  97 definition of law  2 ideal of friendship  57, 57n law and nature  121, 182 De Re Publica, De Legibus  2, 2n, 43n rhetorical technique  12, 21, 21n social contract  162 civil law  159, 159n, 223 Cambridge  31 French jurisdiction  113n, 205 increased assimilation  153–4 as rival to common law  15, 21, 31, 113n, 153–4, 168–73, 178 Scottish jurisdiction  31, 168 Cockpit Playhouse  1 Codrington, Robert  31 Elegy on Sir Edward Coke  187–8 Coke, Sir Edward  33, 98, 158–9, 209 angered by Ignoramus  29–31, 31n antipathy towards actors  3n Attorney-General  3 bodies natural and politic  180 Brutus and Troynovant myth  158, 203–4 Caudrey’s Case  172–3 Chief Justice of the Common Pleas  76, 98, 137, 172, 176, 203, 237 Chief Justice of the King’s Bench  176, 185–8 common law  2–6, 15, 19n, 159, 172, 176, 185–8, 203–4 divine law  12, 106 Druidical foundations of English law  6, 6n, 186–7 grafting metaphor  114, 114n Habeas Corpus  30, 173–7 Institutes of the laws of England  71, 88, 182–3, 223n; Fig.11

Index interpretation of history  4, 5–6, 5n, 8, 203–4 James Osborn’s Case  31–2 on law-Latin  31–2 limitations on the monarchy  2–5, 9, 137, 162, 172, 173, 175–6, 237 Littleton’s influence  128n, 182–3 Nicholas Fuller’s Case  172–3 Postnati. Calvin’s Case  6, 15, 73, 76, 93, 94n, 98, 112, 114n, 159, 165–82, 187, 190 posts held by  172n precedent  4 Prohibitions del Roy  2–5, 174, 175–6 prosecutor at trials for treason  3, 69–70, 72–8, 82, 99 Reports  4, 5, 9, 76, 111–12, 154, 158n, 169, 172–3, 174, 179, 182, 183, 186–7, 203–4, 237, 237n Semayne’s Case  127 Shakespeare’s influence  237–8 Sir Anthony Roper’s Case  172–3 social contract  162–3, 181 Solicitor-General  172n theatrical style  3, 75–6, 76n on torture  78n on treason  71 Virginia Charters  228n Collinson, Patrick  125 Columbus, Christopher  207, 228 Combe, William, M.P.  10n The Comedy of Errors  19n, 110 performed at Gray’s Inn  54, 55, 57, 59 common law see also English jurisdiction; unwritten law and art of law  2–3, 159 Arthurian myth  154 Brutus and Troynovant myth  4, 5–8, 5n, 111–12, 111–12n, 158 Calvin’s Case  167 and canon law  37–8 Ciceronian definition  2 Coke  4, 15, 19n, 172, 174 correlation with divine law  6, 12, 106, 112, 159, 165, 181, 232 correlation with natural law  2–3, 97, 106, 112–18, 121, 130, 159–60, 165, 182–91 Court of Common Pleas  174 Druidical foundations  6, 6n, 186–7, 210 education in  2, 12, 17, 19, 24, 236–7 entitlement to counsel  87–8, 109 equity  8–9, 94 Greek philosophers  111–13, 122 Habeas Corpus  30, 173–7 imaginative power of unwritten law  9, 15 immemorial origins  5–6, 8, 146n, 149, 181–2 immutable nature  5 insularity and exclusivity  17, 18, 234–5 judges as lex loquens  69

 265

law reports  8, 9–10, 109–10 monarchy  4–5, 182–91, 232 mythography of origins  5–8, 149, 154 Nashe  63 oral tradition  109 Plowden on  2n precedent see precedent rhetoric see rhetorical techniques rival civil jurisdiction  15, 21, 31, 113n, 153–4, 168–73, 178 as utopian ideal  205–6 written pleadings  109–10 Year Books  8, 109 common lawyers see lawyers communitarian state  57, 97, 211 Condell, Henry  1 contract law Love’s Labour’s Lost  53–4 Cook, John  105–6, 105–6n Cooper, John  232n Cormack, Bradin  165, 167–8 counsel  87–8, 91, 109 see also barristers courts Common Pleas  153, 174–6 curiae regis  2, 90, 106 Ecclesiastical Court of High Commission  170–8 Exchequer  153, 175 judges  90–1, 153 King’s Bench  90, 153, 175, 176, 176n; Fig.14 layout  90–2; Fig.14 origin of word  127n prerogative  170–6 scribes  91 Cowell, John  31, 209–10 The Interpreter  18–19n, 168–70, 208–9 Cox, Leonard The Arte or Crafte of Rhetoryke  19 Crewe, Sir Randolph  159n curiae regis  2, 90, 106 Cutwood, Thomas Caltha Poetarum  46 Cymbeline  15 arboreal metaphors  183–5, 188n, 190–1 British nationhood  156–7, 156n court scenes  188, 191–2 dismembered human body  157, 161, 176–7, 185, 185n, 190–1 divine law  165 Druids  185–7 grafting metaphor  184 Innogen  156–7n Italy  192 Jupiter  188–9, 192 king’s arbitrary power  177–8 location  194 masque incorporated into  12, 134n, 188–9

266  Milford Haven  193 national and imperial identity  153 natural law  188, 192 persona of the ruler  11 prerogative rule  192–3 rhetorical devices  190–1 rival jurisdictions  15, 153–4, 174–5, 178, 188, 191–2 as romance  12 rural scenes  185–6, 188, 192 social contract  162–3, 164–5 sources  164, 184–5 status and contract  161–2 truth and semblance  160–4 D Daniel, Samuel Tethys Festivall  188 Darnley, Henry Stuart, Lord  67, 86–7, 87n Davies of Hereford, John Microcosmos  16, 206–8, 210, 211, 212, 213, 214, 215 Davies, Sir John  34–47, 62n, 106 A discoverie…  25, 202, 222–4, 223n Attorney-General for Ireland  16, 35, 159n civil law  159, 159n common law  15, 182 epigrams  13, 18, 40–5, 46, 47, 63n expulsion from and readmittance to Middle Temple  40, 160n Irish law reports  43n on law-French  22 Nosce Teipsum  45–6, 152, 158–60 posts held by  35 Le Primer Report  22, 22n, 88, 159–60, 202, 204, 205, 223 Davison, Francis The Masque of Proteus  54 Day, Angel The English Secretorie  19n Day, John Law-Trickes  26–7, 211 Dekker, Thomas  24, 26–7 Old Fortunatus  144 Della Porta, Giambattista La Trappolaria  29 Derrida, Jacques  164 Dickens, Charles Bleak House  34, 64 Mr Gradgrind  9 Digby, Sir Everard  72 divine law colonisation  227–8 Cymbeline  165 English as God’s chosen people  228 in English law  6, 12, 106–7, 112, 152, 159, 165, 181, 186, 232

Index judiciary as agents of  232 in masques  12 Dodderidge, Sir John  33 The English Lawyer  2, 18–20, 21, 21n, 27–8, 48–9, 237 Donne, John  228 Doran, Susan  149 Drake, Sir Francis  207 Druids  6, 6n, 185–7, 210 Dryden, John and Davenant, William The Enchanted island  201n Dudley, Lord  217 Dugdale, Sir William  23, 38 Duncan I, King of Scotland  82–3, 83n Dworkin, Ronald Law’s Empire  13, 108 Dyer, Sir James Reports  22, 23 E ecclesiastical courts  46 Edmund the Martyr, St  149 Edward VI  93 Elizabeth I accused of fornication  135 comparison with Richard II  138–51 ‘Coronation portrait’  140–1, 145–51; Figs.16, 19 depiction as divine figure  7, 143–6 ‘Ditchley portrait’  143–4; Fig.18 ‘Elizabeth I and the Three Goddesses’  143, 143n; Fig.17 question of female governance  130–1 succession  84, 85, 92, 115–18 theatre of monarchy  91, 142–3 Ellesmere, Lord  159–60n, 165n, 175, 192 Elton, GR  171 Elyot, Sir Thomas The Boke Named the Governour  28, 155, 155n enclosure of common land  46–7 English jurisdiction Act of Supremacy  38 adversarial nature  110 art and nature  48–9, 112–27, 159 Arthurian myth  154 Brutus and Troynovant myth  158, 203–4 classical writers  111–13, 122, 201–2, 209 colonialism  197–9, 228–35 common law see common law development  17 divine law  12, 106, 112, 152, 165, 181, 182 entitlement to counsel  87–8, 109 expansion of legal profession  21 importance of history  4, 5, 108–9, 111–12 insularity and exclusivity  17, 18, 234–5 Judaeo-Christian theology  73, 98, 111–12, 220

Index king’s two bodies  92–107, 179–82 language see language, juridical law reports see law reports lex facit regem  103, 137, 151, 172–3 natural law  48–9, 48n, 97, 112–18, 121, 152, 159–60 oral tradition  109 rhetoric see rhetorical techniques rival jurisdictions  15, 21, 31, 168–73, 174–5, 178 secularisation  23–4, 38, 45, 98 as utopian ideal  205–6 English language see language, juridical Enslow Hill Rebellion  46–7 entailed property  116, 127–32 Enterline, Lynne  134 Entick v Carrington  146 epieikeia  8, 8n, 18, 94 equity Aristotle  8, 8n Cicero  20 common law  8–9, 94 Dodderidge  20 Erasmus  125, 160n Essex, Robert Devereux, 2nd Earl  98–9, 139, 140, 232 Essex Rising  139–40 ethics  24, 112 Euripides Alcestis  14n evidence in trials for treason  13, 69, 76, 79–80, 88 executions, symbolism  98–100, 99n Exton, Sir Piers  147 F Fawkes, Guy  72 Ferne, John  38 The Blazon of Gentrie  36–7 Finkelpearl, Philip J  25 Fleming, CJ  167 Fletcher, John  145, 147–8 Florio, John  197 forced loan  159n Fortescue, Sir John  19 Brutus and Troynovant myth  158, 203–4 De Dominio Regali et Politico  96–7, 101–2, 101n ‘The Governance of England’  102, 102n grafting metaphor  113–15, 120 De Laudibus Legum Angliae  4, 5, 6, 8, 37, 37n, 43, 44, 45, 57, 75, 97, 101, 105, 112–15, 112–13n, 116, 124–5n, 158n, 177, 180, 205, 210, 231–2; Fig.6 Fraser, Antonia  80, 81 Fraunce, Abraham The Lawiers Logike  17, 18–19, 22, 34, 45, 63, 64–5, 74n, 236–7

 267

Frederick V, Elector Palatine  229, 230n French civil jurisdiction  113n, 205 Fuchs, Barbara  222 Fulbecke, William  24, 77 A Direction…to the Study of the Lawe  152, 153 Fulwood, William The Enimie of Idlenesse  19n G Galloway, Bruce  167 Gardiner, SR  168 Garnet, Father Henry, SJ  67, 74n, 76, 78–82, 78n Gascoigne, George  19n, 21n Gawdy, Sir Francis  69 Treatise of Equivocation  79, 79n Geoffrey of Monmouth Historia Regum Britanniae  4, 7, 111–12, 112n, 124n Gheeraerts, Marcus the Younger ‘Ditchley portrait’  143–4; Fig.18 Gillies, John  230 Glanvill, Ranulf de  19 Glorious Revolution  153 Golding, Arthur  186, 219 Goodrich, Peter  21, 24, 42–3 Goodyere, Sir Henry The Mirrour of Maiestie  152–3; Fig.2 grafting Figs.8–10 see also tree as metaphor as metaphor  14, 75, 112–18, 120, 127, 130, 184 grammar school education  20 Grant, John  72 Gray’s Inn  28n, 58 Candlemas revels 1594–95  18, 54–9, 62 The Comedy of Errors  54, 57, 59 Gesta Grayorum  54, 55 Masque of Flowers  133n, 202, 229, 232–4 Masque of the Inner Temple and Gray’s Inn  189n Memorable Masque…  202, 229–32, 229n Greenblatt, Stephen  91, 141, 156, 199 Greene, Robert A Groatsworth of Wit  61n Pandosto  14n Greene, Thomas  10n Grosart, Alexander B  158 Guilpin, Everard  45 Gunpowder Plot  238 execution of conspirators  99 trials following  13, 67, 72–4, 76–81, 89 Guy, John  85

268 

Index

H Habeas Corpus  30, 173–7 Hackluyt, R The True Pictures and Fashions of… Virginia  225, 229–30, 233; Figs.12, 13 Haigh, Christopher  144 Hales, Sir James  10 Hall, Joseph Byting Satyres  47 Hamlet The Case of Mines  2n ‘country matters’  50, 50n graveyard scene  1, 3, 10, 110–11 juridical language  1, 3, 110–11, 111n regicide  66–7 sources  10 treason  66–7 Hammer, Paul EJ  139n, 140 Hampton Court Conference  171n, 174 Harington, Sir John  40–1, 143n ‘Of Treason’  215 Hariot, Thomas A briefe and true report of…Virginia  224–5, 233; Figs.12, 13 Hatton, Sir Christopher  85 Hawkins, Michael  84 Hegel, GWF  72n, 84n Heminges, John  1 Henrician Reformation  17, 21, 98, 180 Act of Supremacy  38 Henry IV  147 Henry IV, Pt. 2  11, 115n Henry V  136n Henry VI trilogy  157n Henry VII  154, 193 Henry VIII  82–5, 135, 170, 180, 221 ‘Memoranda for Ireland’  221 Henry, Prince of Wales  157, 188, 210 Herbert, William  8 A Prophesie of Cadwallader  154 Herring, Francis Mischeefes Mysterie  80–1; Fig.1 Hersey, George  127 Hibbard, GR  61 High Treason see treason Hill, Thomas A Most Briefe and pleasaunte treatise  120n, 126; Fig.8 history Arthurian myth  154–5 Brutus and Troynovant myth  4, 5–8, 5n, 15, 111–12, 111–12n, 154–5, 157–8, 193 immemorial origins of common law  5–6, 8, 146n, 149, 181–2 importance in English law  4, 5, 108–9 Hobart, Sir Henry  229

Hobbes, Thomas Leviathan  106–7, 156n, 180 social contract  162, 164 Holdsworth, William  109 Holinshed, Raphael  72n, 83–4, 83n Chronicles of England  141 Historie of Scotland  100 Holland, Philemon  186 Homer  201–2 An Homilie agaynst disobedience and wylful rebellion  100–1 Hooker, Richard Of the Laws of Ecclesiastical Polity  103, 103n, 150–1 Horace Ars Poetica  74n Horne, Andrew The Mirror of Justices  154 horticultural metaphors  14, 75, 112–15, 119–27 Hoskins, John  35, 35n Howard, Lady Frances  229, 232 Howard, Katherine  135 humanism  20, 113n Hunt, Alan  162 Hutson, Lorna  94 Hutten, Leonard Bellum Grammaticale  28n I iconoclastic reformers  144 imperialism divine law  227–8 English jurisdiction  197–9, 228–35 Ireland  14, 15–16, 198, 201, 202, 221–4, 226 New World  15–16, 17, 197–9, 201, 202, 224–7 Inner Temple  16, 16n, 79 Candlemas revels 1594–95  55, 57 Circe and Ulysses  133, 133n Masque of Heroes  133–4 Masque of the Inner Temple and Gray’s Inn  189n Ruggle’s Ignoramus  30 Tragedy of Ferrex and Porrex (Gorboduc)  132–3, 132n Inns of Court  21, 24, 29 education at  2, 12, 17, 19–21, 24, 26, 27–8, 28n, 48, 59 exclusion of women  58–9 expansion  38 language see language, juridical Love’s Labour’s Lost  18, 53, 55–7 Masque of Flowers  133n, 216n, 229, 232–4 messes and dining  56, 59n moots  23, 59 rhetorical techniques  12, 17–21, 58–9 social background of members  36–7, 38–9

Index Inns of Court revels  11, 18, 25–6, 54–8, 132 1594–95  18, 54–9, 62 1597–98  35–6, 39–40, 59 1602  54 ‘Articles of the Orders’  56, 56n Circe and Ulysses  133, 133n The Comedy of Errors  54, 55, 57, 59 Histrio-Mastix  25–6, 25–6n inversion of governance  215–17 Law-Trickes  26–7 Love’s Labour’s Lost  18, 55–8 Masque of Heroes  133–4 Masque of Proteus  54 Memorable Masque…  202, 229–32, 229n portrayal of women  132–4, 136 Le Prince d’Amour  35–6, 39–40, 218–19 The Tempest  215–18 Tragedy of Ferrex and Porrex (Gorboduc)  132–3, 132n Troilus and Cressida  26n Twelfth Night  11, 54 Ireland colonisation  14, 15–16, 198, 201, 202, 221–4, 226, 235 The Tempest  221–4 J James VI and I see also monarchy anatomical metaphor  206–7 ancestry in Macbeth  82–4 arboreal metaphor  183 and Augustus  189 Basilicon Doron  11, 16, 150n, 210–11 British nation  6–7, 14–15, 153–4, 155–7, 157n, 165–82, 188–9 Brutus and Troynovant myth  7–8, 15, 154–5, 157–8, 193 Calvin’s Case  6, 15, 165–82 childhood tutor  68 children  157, 157n, 188, 229 ‘Christall Mirror’ speech  160, 163n, 168, 169 claim to throne  81–5 Daemonologie  209 death  105–6n divine provenance  232–3, 234–5 favouritism  191 Great Contract  163n, 167 Gunpowder Plot  13, 67 imperialism  207–8 king as parens patriae  155, 178n, 181 king’s two bodies  92–107, 179–82 performances before  28, 29–30 prerogative rule  11, 137, 150–1, 153–4, 160, 161–2, 169, 173, 188–9, 192–3, 232 rival jurisdictions  15, 31, 153–4, 168–73, 174–5, 178

 269

The Roiail Progenei of our Most Sacred King James  116; Fig.7 rule by Proclamation  162 succession  81–93, 115–18 sumptuary laws  161–2 theatre of monarchy  156 Trew Law of Free Monarchies  11, 16, 98, 100–1, 104, 150, 207–8 James II  153 James, Heather  158, 164, 189, 192 James Osborn’s Case  31–2 Jenkins, Joseph S  83 Jones, Inigo  230 Jones, William  186 Jonson, Ben  105n The Isle of Dogs  60 The Masque of Oberon  134n, 135 Jordan, Constance  165, 167 Jourdain, Silvester A Discovery of the Barmudas  196–7 Judaeo-Christian theology  73, 98, 111–12, 219–20 garden metaphor  123 iconoclastic reformers  144 judiciary  90–1, 153, 175 as agents of divine law  232 as lex loquens  69 Julius Caesar  50n regicide  66–7 treason  66–7 justices of the peace  131, 131–2n Justinian The Digest  97, 231 The Institutes  172n K Kahn, Victoria  162 Kantorowicz, Ernst H The King’s Two Bodies  13, 93–7, 106, 107, 179–80 Kelley, Donald R  203 Kermode, Frank  66n Keyes, Robert  72 King Lear  9 persona of the ruler  11 sources  132n King’s Men  1, 196n knot gardens  126–7; Fig.10 Knox, John  101n, 131 Knyvett, Thomas  140, 140n L Lambarde, William  138–40, 138n language, juridical see also rhetorical techniques ‘academic plays’  28 English  2, 21 exclusivity  1–2, 3, 21

270  grammar school education  20 Hamlet  1, 3, 110–11, 111n James Osborn’s Case  31–2 Latin  2, 21, 27, 31–2, 33, 59–60 latinised Norman  27 law-French  2, 20, 21–3 law reports  33 Love’s Labour’s Lost  50, 52, 56n, 58, 59–60 Measure for Measure  52 moots  23, 59 Nashe  62–3 playgoing audiences  1, 33–4 satirical representations  29–34 statutory attempt to anglicise  22, 32 Titus Andronicus  3–4 training  2, 12, 17, 19–21, 24, 26, 27–8, 28n, 48, 59 university education  27 Latin see language, juridical law, personification  231–2 law-French  2, 20, 21–3 law reports  109–10 printed  8, 9–10, 9n, 33, 166, 237 translation into English  33 lawyers/legal profession see also barristers; counsel attendance at playhouses  24–5, 42 costume  37n Davies’s epigrams  13, 18, 40–5, 46, 47 ethics  24 expansion  21, 38 insularity and exclusivity  17, 18 language see language, juridical priestly role  23–4, 37–8, 97, 210, 232 professional status  23, 38 public resentment towards  23–4, 25, 26–7, 44 rhetoric see rhetorical techniques satirical depictions of  17–18, 23, 24–32 secularisation  23–4, 38, 45, 98 self-regulation  24 social backgrounds  36–7, 38–9 and state governance  16, 24 training  2, 12, 17, 19–21, 24, 26, 27–8, 28n, 48, 59, 236–7 ‘Wiglomeration’  34 Lee, Henry  143, 143n Legge, Thomas Richardius Tertius  28n Legh, Gerard  16, 16n Accedens of Armory  217 Leicester, Robert Dudley, Earl of  135 lex facit regem  103, 137, 151, 172–3 liberty  177–8 Liberty of the Clink  47 Lincoln’s Inn  38, 58, 229, 232 Lindley, D  12n Ling, Nicholas  61

Index literary judges  8 Litlyngton, Thomas  142n Littleton, Thomas Tenures  21, 128n, 182–3 Livy History of Rome  111n logic university education  28 Love’s Labour’s Lost  47–65, 194 Inns of Court revels  55–7 juridical language  50, 52, 52n, 56n, 58, 59–60 legal dispute  53–4 ‘little academe’  13, 18, 47–8, 52–3, 56–8 sources  55–7 trial of Costard  51–2 Lumley, John, 1st Baron  140n Luther, Martin  24 M Macbeth ancestry of Stuart kings  82–4 breach of natural order  72 decapitation of Macbeth  99–100, 107 discovery of Duncan  69–70 juridical enactment of betrayal  71–81 king’s two bodies  96, 97–8, 107 Lady Macbeth  13, 67–8, 86, 89 location  194 Macbeth’s claim to the throne  83–4, 84n murder of Duncan  78n, 86–7, 107 performance at court  12 persona of the ruler  11 the Porter  78–9 regicide  13, 66–7, 72, 99–100 sources  13, 67–8, 72 succession  95–6 time in  95–6 treason  13, 66–70, 71–81 tyranny  13, 100 unjust king  97–8 usurpation  13 McCabe, Richard A  47 McEwan, Ian The Children Act  108–9 Mack, Peter  20 Magnusson, Lynne  58–9 Main and Bye plots  214n Maitland, FW  21, 180 English Law and the Renaissance  22 Maitland, Thomas  104 Manegold of Lautenbach  101 Manningham, John Diary  34, 41, 54 Marcus, Leah  168, 188, 189 Marian iconography  145, 148–50 Marlowe, Christopher Ovid’s Elegies  40, 46, 63n

Index Marston, John  10n Histrio-Mastix  24–6, 25–6n Martial  45 Martin, Richard  35, 39–40 Mary I  131, 145, 148, 149 Mary Queen of Scots Babington Plot  85, 88, 89, 92 Casket letters  87, 87n, 89 claim to English throne  85 deposition  104 Knox justifies rebellion against  101n Macbeth  13, 67–8 Stuart succession  82–3, 92–3, 116 trial  13, 67, 85–92; Fig.3 Mascall, L A Booke of…how to Plant and Graffe… Trees  115, 119n; Fig.5 masques  12, 12n, 132, 133–5 depictions of native Americans  16, 202, 229–31, 233–4; Fig.13 divine justice  12 Francis Bacon  56n incorporated into Shakespeare’s plays  12, 134n, 188–9, 217 Masque of Flowers  133n, 202, 216n, 229, 232–4 Masque of the Inner Temple and Gray’s Inn  189n portrayal of women  133, 136 sets  216n, 230, 234 Tempe Restored  188–9 Tethys Festivall  188 mazes  126–7; Fig.10 Measure for Measure  9, 11, 50–1, 134n Act 2.1  52 juridical language  52, 52n performance at court  12 persona of the ruler  11 title  51, 51n trial scene  51–2, 110 The Merchant of Venice  9 trial scene  110 Meres, Francis Wits Treasurie  61n metaphor, use of  14, 74–5, 76, 77–8, 95 metonym  95 Middle Temple Davies’s epigrams  13, 18, 40–5 John Marston  25 links with Shakespeare  10n Memorable Masque…  202, 229–32, 229n poet-lawyers  35 Le Prince d’Amour  35–6, 39–40, 218–19 revels  11, 26n, 35–6, 39–40, 54, 59, 229, 232 Troilus and Cressida  26n Twelfth Night  11, 54

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Middleton, Thomas A Trick to Catch the Old One  10n Masque of Heroes  133–4 A Midsummer Night’s Dream  73n, 105n, 110, 111 ‘Pyramus and Thisbe’  186n Milford Haven  193 mimesis  70, 95, 105 mimorum ædes  92 mirror metaphor  154, 160 ‘The Misfortunes of Arthur’  132–3 monarchy see also theatre of the monarchy accountability  5, 9 anatomical metaphor  98–100, 106–7 arboreal metaphor  183–5 bodies natural and politic  9, 13, 71, 92–107, 145, 179, 181 Brutus and Troynovant myth  4, 5, 6–8, 15, 111–12, 111–12n, 154–5, 157–8, 193 Coke’s Prohibitions del Roy  2–3, 174, 175–6 courts as curiae regis  2, 90, 106 divine provenance  234–5 female succession  130–6 grafting metaphor  75, 114–18 Gunpowder Plot  13, 67 as head of Church  98 Imago Dei  71, 98, 141 legitimacy  4 Macbeth  82–3, 97–8 natural law and the power of the crown  182–91 as parens patriae  155, 178n, 181 as personification of state  179 political works by James IV  11 prerogative rule  11, 137, 146–7, 148–9, 150–1, 153–4, 160, 161–2, 169, 173, 188–9, 192–3 Protestant succession  85, 92 regicide  66–7 royal portraiture  138–51 Scottish succession  83–4, 135–6, 135–6n Shakespeare’s Jacobean plays  11 social contract with subjects  101, 101n, 162–3, 164–5, 181 succession  81–93, 115–18, 130–6, 154–5 The Tempest  16 treason against see treason tyranny  13, 100, 101n, 102–7, 138, 146–7 unjust king  97–8 Montaigne, Michel de  116, 116n, 164 ‘Of the Caniballes’  197–8, 198n, 200, 204, 230 ‘Of Crueltie’  198n Monteagle, Lord  80, 89 moots  23, 59 More, Sir Thomas  125 Utopia  125–6, 200–1, 204, 207

272  Much Ado About Nothing  51 Mulcahy, Linda  90 N Nashe, Thomas  42, 61n, 62–5, 63n The Isle of Dogs  60, 62 Lenten Stuffe  60–3, 63n The Terrors of the Night  63–4 nationhood  14–15 natural law Aristotle  8, 8n art and nature  48–9, 112–27, 138–51 breach of natural order  72–4 Calvin’s Case  167 Circe and Ulysses  133 common law as  2–3, 97, 112–18, 130, 182–91 concept generally  23, 121 crown and common law  182–91 Cymbeline  188 English jurisdiction  48–9, 48n, 112, 152, 159–60 equity  94 parens patriae  155, 178n, 181 primacy  106 reason and the natural order  130 social contract  181 Thomist definition  2 Neoplatonism  209 New World colonisation  15–16, 17, 197–9, 201, 202, 224–35 depictions of native Americans  16, 202, 229–31, 233–4; Fig.13 English jurisdiction  228–35 first Anglo–Powhatan war  228–9, 228n idealisation  204 The Tempest  195–6 Virginia  202, 224–35; Figs.12, 13 Virginia Charters  228n Nicholas Fuller’s Case  137, 172–3 Nicholls, Mark  76 Nichols, John Bibliotheca Topographica Brittanica  138 Nietzsche, Friedrich The Birth of Tragedy  15, 49, 192–3 noble savage  204 Northampton, Earl of  81 Nussbaum, Martha  8, 9 Nuttall, AD  48, 52–3, 123, 201 O The Old Tenures  21 Oliver, Isaac ‘Elizabeth I and the Three Goddesses’ (attrib.)  143, 143n; Fig.17 The Orchard, and the Garden  126–7, 126n; Figs.9, 10

Index Orgel, S  209 Orpheus myth  43, 43n, 122n, 137, 236, 236n Othello  12 Ovid  201–2 Elegies  40 Fastorum  203 Heroides  73, 74 Metamorphoses  14n, 111, 113, 123, 124, 134, 134n, 137, 145, 185n, 186n, 190, 204–5, 219, 234, 236, 236n Owen, John  35 P patrimonial system  130–6 Peacham, Henry The Garden of Eloquence  19, 45 The Gentleman’s Exercise  163 Peele, George The Old Wives Tale  14n Pericles  157n masque incorporated into  12, 134n as romance  12, 157n Petition of Right  159n, 177 Phelips, Sir Edward  72–3, 229 Phoenix Playhouse  1 Plato  12, 21, 201–2 The Laws  138, 211, 234 The Republic  77, 125n, 152–3, 200, 201, 204, 206, 208, 230 Plautus Asinaria  164 Pseudolus  29 playgoing audiences juridical language  1, 33–4 lawyers  24–5, 42 playhouse layout  91–2; Fig.4 Pliny the Elder Natural History  119n, 120–1, 122, 186–7 Plowden, Edmund  35 Case of the Dutchy of Lancaster  9, 93, 180 Case of Mines  2n Commentaries or Reports  9–10, 9n, 23n, 94, 179 on common law  2n Eyston v Studd  9, 94 Hales v Petit  10 king’s two bodies  93–4 Sharington v Strotton  14, 110, 116, 127–32 Wrotesley v Adams  110 poet-judges  8 poet-lawyers  35, 158–9 Popham, Sir John  69 precedent  13–14, 109, 111 Calvin’s Case  6, 165–82 Coke  4 Titus Andronicus  3–4 prerogative courts  170–6 Prest, Wilfrid R  27, 37, 38–9

Index Primaudaye, Pierre de la The French Academy  56–7 Prince, Gilbert  142n printing technology  201–2 law reports  8, 9–10, 33, 109–10, 237 rhetorical manuals  12, 19–20, 19n Privy Council  90, 175–6 enforcement of religious conformity  46 proscænium  92 Puttenham, George The Arte of English Poesie  19, 43n, 77, 117, 121n, 122 Pythagoras, music of the spheres  119n Q Quiller-Couch, Sir Arthur  61–2 Quintilian  12 R Rabelais, François  164 Radcliffe, Lord  45, 45n Raffield, Paul Shakespeare’s Imaginary Constitution  3, 11, 71, 114, 190 Raleigh, Sir Walter account of Guiana  230n trial  13, 68, 69–71, 75–6, 89, 225n The Rape of Lucrece  156n Ravenscroft, Edward The English Lawyer  18, 29, 32–4 Re A (conjoined twins)  109, 109n reason and the natural order  130 rebellion  46–7 Babington Plot  85, 88, 89, 92 Essex Rising  139–40 justification for  101n The Tempest  195, 212–13 treason as  71 regicide Hamlet  66–7 Julius Caesar  66–7 Macbeth  13, 66–7, 72, 99–100 religious conformity, enforcement  46 Reres, Lady  86 ‘Revenge’ Parliament  141, 146–7 rhetorical techniques Cicero  21 common law  17–19, 117 Cymbeline  190–1 in judicial procedure  12, 17–21, 34, 58–9 law as rhetoric  64 legal education  17, 18, 19–21, 24, 48, 59, 237 Love’s Labour’s Lost  47–8 manuals of  12, 19–21, 19n maxims expressed as fables  20 in the theatre  61–2 unethical use  34, 44 university education  28

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Richard II  107, 139, 147, 237–8 deposition scene  160 trial scene  110 Richard II  138–9, 145 abdication  147 absolute rule  146–7, 148–9, 150 comparison with Elizabeth I  138–51 ‘Coronation portrait’  140–1, 142, 145–51; Figs.15, 19 theatre of kingship  141–2, 147 ‘Wilton Diptych’  142, 148–9, 150–1; Fig.20 Rizzio, David  86, 86n Roger of Waltham Compendium Morale  101–2n The Roiail Progenei of our Most Sacred King James Fig.7 ‘romances’  12, 157, 157n Rookwood, Ambrose  72 Rudyerd, Benjamin  35–6, 39, 41 Ruggle, George Ignoramus  12–13, 18, 28–32, 34 S St German, Christopher  19, 94, 112 Doctor and Student  20, 21, 94, 210 Salic law, succession  83–4, 135–6, 135–6n Samson, Alexander  115, 121n, 123, 126 satire Bishops’ Ban  45–7 Davies’s epigrams  13, 18, 40–5, 46, 47 Inns of Court revels  56, 56n of juridical language  29–34 of the legal profession  17–18, 23, 24–9 Le Prince d’Amour  35–6, 39–40, 218 renaming of subject  36 Saul, Nigel  142 Scottish civil jurisdiction  31, 168 seditious libel  63n Selden, John  162–3 English Janus  135–6, 186, 187, 203–4 Shakespeare, William see also individual plays fascination with law and legal procedure  9–11, 110–11, 238 First Folio edition  1 horticultural terms  121 influence  237–8 ‘romances’  12 Sharington v Strotton  14, 110, 116, 127–32 Sidney, Sir Philip The Defence of Poesy  28n, 70, 76 Sir Anthony Roper’s Case  137, 172 Sisson, CJ  208 Slade’s Case  54n Smith, Captain John  202 ‘A True Relation of…Virginia’  225–7 Smith, Sir Thomas  125 De Republica Anglorum  102–3, 125

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social contract  101, 101n, 162–3, 164–5, 181 Solon  200 Somers, Sir George  197 Somerset, Robert Carr, Earl of  229, 232 Speed, J The Theatre of the Empire of Great Britaine  222, 223; Fig.21 Spenser, Edmund The Faerie Queen  7, 156n Stafford, Bishop Edmund  147 State Tracts  153, 154–5 Statham, Nicholas Abridgment of the Law  21 Statute of Sewers (1531)  38 Strachey, William  202 Lawes Divine, Morall and Martiall  227–8 True Reportory of the Wracke  196, 202 Strong, Roy  148 Stuart, Lady Arbella  89 Stuart, Princess Elizabeth  229, 230n Stubbes, Philip The Anatomie of Abuses  46 Sulla  102 sumptuary laws  161–3 Surrey, Sir Thomas Howard, Earl of  221 Swan Playhouse  91–2; Fig.4 T Tanner, JR  178 Tate, Nathum  158–9 The Tempest autocratic governance  194–5 banquet scene  217 Bermuda  195–6 Caliban  196, 197–8, 199–200, 212, 221–2, 224, 226–7 colonialism  15–16, 197–9, 201, 221–35 ideal state  203–20 Inns of Court revels  215–18 island location  16, 194–202, 224, 226, 230–1 love, hatred and forgiveness  212–14, 219–21 magic  208–10, 219 masque incorporated into  12, 134n, 217–18 performance at court  12, 230n persona of the ruler  11, 208, 211 rebellion  195 as romance  12, 157n sources  186n, 196–200, 202 treason and rebellion  195, 212–15 usurpation  195, 208, 212, 213, 220 wrecked ship metaphor  213–14 Temple Bar  47 Tesimond, Father Oswald, SJ  78 theatre of the courtroom  3, 9, 12, 110, 238 adversarial nature of English system  110 layout  90–2; Fig.14 rhetoric see rhetorical techniques theatrical style of advocacy  3

trial of Charles I  104–7, 105n trials for treason  13, 71, 75–6, 90–2 theatre of the monarchy  11–12, 141–3, 156 royal portraiture  138–51 succession  81–92 Thomas Aquinas, St concept of time  95, 101 definition of natural law  2 On Princely Government  101n Thomas of Woodstock, or King Richard the Second, Part One  10 Thornborough, John  183 time, theories of  95 tiring house  92n Titus Andronicus  111, 111n, 156n dismembered human body  176, 190 sources  132n use of legal language  3–4 torture, use of  78n tragedy function defined by Sidney  70 Shakespearean  70, 70n, 72n Tragedy of Ferrex and Porrex (Gorboduc)  132–3, 132n ‘trampler’  10, 10n treason anatomical metaphor  73, 98–100 Babington Plot  85, 88, 89, 92 betrayal of love  71 breach of natural order  72–4 Coke as prosecutor  3, 69–70, 72–6 drama of the courtroom  13, 71 entitlement to counsel  87–8 evidence in trials  13, 69, 76, 79–80, 88 Gunpowder Plot  13, 67, 72–3, 76–81, 89 Hamlet  66–7 Julius Caesar  66–7 king’s two bodies  92–107 Macbeth  13, 66–70, 71–81 Main and Bye plots  214n mandatory sentence  98–9 Mary Queen of Scots  67–8, 85–92 Le Prince d’Amour  218–19 Raleigh  68, 69–71, 75–6, 89 rebellions  46–7 Statute of Treasons  214–15 The Tempest  212–14 Treason Acts  46–7, 68–9, 68n, 71 trials  13, 66–71, 72–82, 99 The Winter’s Tale  118 Treason Acts  46–7, 68–9, 68n, 71 tree as metaphor  74–5, 76, 77, 112–18, 187–8 see also grafting Cymbeline  183–5, 188n, 190–1 monarchy and the law  182–4 Tresham, Francis  79 Troynovant myth see Brutus and Troynovant myth

Index Tucker, EFJ  27 Tudor dynasty, legitimacy  7 Twelfth Night  11, 54 Twyford, Henry  33 tyranny  102–7 Macbeth  13, 100 resistance to  16, 101n, 104 Richard II  146–7 Titus Andronicus  190 The Winter’s Tale  138 U Ulpian  97 Ulysses  200, 201 universities ‘academic plays’  28–32 Cambridge and civil law  31 education at  27–8, 28n Love’s Labour’s Lost  52–3 unwritten law  106, 114, 181–2, 192, 232, 237 see also common law; divine law Coke’s Reports  237 divinely ordained  186 imaginative power  9, 15 immemorial provenance  146n, 181–2 Usher, RG  174 usurpation Macbeth  13 The Tempest  195, 208, 212, 213, 220 V Vico, Giambattista  127 Vincent, Susan  162 Virgil  201–2 Aeneid  7, 8, 15, 76, 111, 153, 157, 158, 163n, 164, 168, 181 Virginia see New World W Walbancke, Matthew  33 Walmesley, Sir Thomas  33 Walsingham, Thomas  146 Warburton, Sir Peter  33, 69 Watson, Sir Thomas ‘The Nymphs to their May Queen’  7

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Weber, Max  23 Westminster Hall  90, 104 White, James Boyd  3, 64 White, John  225n Whitgift, John, Archbishop  45–6, 170 Wilkes v Wood  146 Willson, David Harris  169 Wilson, John Dover  61–2 Wilson, Sir Thomas The Arte of Rhetorique  12, 17, 19, 19n, 38, 44, 64 The Rule Of Reason  19n Winter, Robert  72 Winter, Thomas  72 The Winter’s Tale  9, 194 Apollo  14, 118–19 art and nature  112, 118–27, 138–51 dance of the satyrs  134n depiction of women  134–5, 136–7 grafting metaphor  14 horticultural metaphors  14, 112–15, 119–27 location  14 masque incorporated into  12, 134n Orpheus  137 persona of the ruler  11 as romance  12, 157n sheep-shearing scene  123, 123n sources  14n, 111 title  14 treason  118 trial scene  14, 90n, 110, 118–19 tyranny  138 uncertain succession  115n Witt, Johannes de Sketch of the Swan Playhouse  91–2; Fig.4 women female governance  130–6 theatrical portrayal  132–7 Wotton, Henry  35, 35n written pleadings  109–10 Y Year Books  8, 109 Yelverton, Sir Henry  33, 70–1

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