Abstract
In approaching early modern English law, Girard’s formulation is a useful one, reminding us as it does of the compatibility of justice and vengeance. Early modern England may not have been a well-policed society, but it did have a thriving legal system, which openly acknowledged the role of revenge in its operation.3 Public vengeance at that time could mean two very different things. On the one hand the legal system as a civic institution made punishments increasingly public affairs, for example at the infamous ‘Tyburn Tree’. Understood in another way, public vengeance was being made available in the playhouses of London and beyond for the price of admission. Yet how different were these versions of ‘public’ vengeance, and in what ways did the popularity of one come to be reflected in the other? This chapter outlines the reasons why legal history provides such a crucial context for our understanding of early modern drama in general, and revenge tragedy in particular. It gives an account of the participatory nature of early modern law, as well as gesturing towards some of the changes and stresses that system was undergoing at the time that the plays were being written. By dismantling the stale binaries of Law/Revenge, Public/Private that have dominated discussion of revenge tragedy, I seek to realign these discourses as a necessary precursor to a more sophisticated account of how they relate to each other on the early modern stage.
Obserue the statutes of your Heauenly King;
And from his Lawe make all your Lawes to spring.
James VI and I, Basilikon Doron1
Once the concept of interminable revenge has been formally rejected, it is referred to as private revenge. The term implies the existence of a public vengeance, a counterpart never made explicit. By definition, primitive societies have only private vengeance. Thus, public vengeance is the exclusive property of well-policed societies, and our society calls it the judicial system.
René Girard, Violence and the Sacred2
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Notes
James I, Basilikon Doron (Edinburgh, 1599) (STC no. 14348), sig. A3r.
René Girard, Violence and the Sacred, trans. Patrick Gregory (London: Athlone Press, 1988), p. 15.
Fredson Thayer Bowers, Elizabethan Revenge Tragedy, 1587–1642 (Princeton: Princeton University Press, 1940), p. 11.
William Westerman, Two Sermons of Assise: The One Intituled A Prohibition of Reuenge: The Other, A Sword of Maintenance (London, 1600) (STC no. 25282), p. 3.
Catherine Belsey, The Subject of Tragedy (London: Methuen, 1985), p. 115.
‘The Keeping of the Public Peace’, in The Experience of Authority in Early Modern England, ed. Paul Griffiths, Adam Fox and Steve Hindle (Basingstoke: Macmillan, 1996), pp. 213–48 (p. 227).
Wild Justice: The Evolution of Revenge (London: Collins, 1985), p. 153.
Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (Harmonsworth: Penguin, 1979), p. 48.
Eleanor Prosser, Hamlet and Revenge, 2nd edn (Stanford: Stanford University Press, 1971), p. 282.
This culture of delegation is described in detail by Holger Schott Syme, Theatre and Testimony in Shakespeare’s England: A Culture of Mediation (Cambridge: Cambridge University Press, 2012), p. 6.
William Lambarde, The Courts of Justice Corrected and Amended (London, 1642), p. 7. For this reason an assault on a judge was seen as an assault on the monarch, and, by extension, God. See also The Lord Coke his speech and charge VVith a discouerie of the abuses and corruption of officers (London, 1607) (STC no. 5491): ‘you are Gods on earth: when by your execution of Iustice and Iudgement, the God of heauen is by your actions represented: but if by vs, that so are called Gods, Iustice and Iudgement be peruerted; it will be heauy for our soules, when we shall dye like men’, sig. C4r.
Dennis E. Curtis and Judith Resnik, ‘Images of Justice’, The Yale Law Journal, 96 (1987), 1727–72 (p. 1734).
Harry Keyishian, ‘Punishment Theory in the Renaissance: The Law and the Drama’, in Shakespeare and the Law, pp. 175–84 (p. 176). See also his monograph, The Shapes of Revenge: Victimization, Vengeance and Vindictiveness in Shakespeare (Atlantic Highlands, NJ: Humanities Press, 1995).
‘The People and The Law’, in Popular Culture in Seventeenth-Century England, ed. Barry Reay (London: Croom Helm, 1985), pp. 244–70 (p. 245).
The Reports of Sir Edward Coke, 13 vols (Union, NJ: Lawbook Exchange, 2002), III, Part V, p. v.
C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth: The ‘Lower Branch’ of the Legal Profession in Early Modern England (Cambridge: Cambridge University Press, 1986), pp. 95–101 (p. 95). See also Luke Wilson’s work on intentionality in the period, as the law of contract grew in importance, Theaters of Intention: Drama and the Law in Early Modern England (Stanford: Stanford University Press, 2000), pp. 68–113.
‘Law and Legal Institutions’, in William Shakespeare: His World, His Work, His Influence, ed. John F. Andrews, 3 vols (New York: Charles Scribner’s Sons, 1985) I, pp. 41–54 (p. 42). Brooks puts the figure of non-landed gentry at between seventy and eighty percent of the courts’ customers, ‘Litigants and Attorneys’, p. 46.
Cynthia B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge: Cambridge University Press, 1987), p. 92.
Crime in Early Modern England, 1550–1750 (Cambridge: Chadwyck Healey, 1986), p. 206.
Martin Ingram, ‘Reformation of Manners in Early Modern England’, in The Experience of Authority in Early Modern England, ed. Paul Griffiths, Adam Fox and Steve Hindle (Basingstoke: Macmillan, 1996), pp. 47–88 (p. 74).
Michael J. Braddick, State Formation in Early Modern England, c. 1550–1700 (Cambridge: Cambridge University Press, 2000), p. 161. James Sharpe even goes so far as to say that law had become ‘internalised’ in the early modern period, ‘The People and the Law’, p. 246.
Steve Hindle, The State and Social Change in Early Modern England, 1550–1640 (Basingstoke: Macmillan Press, 2000), p. 106. On fears about vexatious litigation, see J. S. Cockburn, A History of English Assizes, 1558–1714 (Cambridge: Cambridge University Press, 1972), pp. 145–9; Martin Ingram, ‘Communities and Courts: Law and Disorder in Early-Seventeenth-Century Wiltshire’, in Crime in England, 1550–1800, ed. J. S. Cockburn (London: Methuen, 1977), pp. 110–34 (p. 118ff). Brooks makes the point that although this concern was frequently raised, malicious lawsuits appear to be statistically insignificant, Pettyfoggers and Vipers, pp. 108–10.
B. J. Sokol and Mary Sokol, Shakespeare, Law, and Marriage (Cambridge: Cambridge University Press, 2003), p. 9. See also the epilogue to Subha Mukherji’s Law and Representation in Early Modern Drama, entitled ‘The Hydra Head, the Labyrinth and the Waxen Nose: Discursive Metaphors for Law’, pp. 233–48.
Wilfred Prest says of the period that it consisted of ‘a series of running battles with various rival jurisdictions, notably the Church courts, the provincial councils, the Court of Requests, the Court of Admirality, and Chancery’, The Rise of the Barristers: A Social History of the English Bar, 1590–1640 (Oxford: Clarendon Press, 1986), p. 262.
Some of these interconnected crises are the subject of Ian Archer’s The Pursuit of Stability: Social Relations in Elizabethan London (Cambridge: Cambridge University Press, 1991). I return to the question of social unrest in 1590s London and its impact on the drama of the period in Chapter 4 on Antonio’s Revenge.
A Power to Do Justice: Jurisdiction, English Literature and the Rise of the Common Law, 1509–1625 (Bristol: University of Chicago Press, 2007), p. 27.
For an overview of the multiplicity of jurisdictions the entry on ‘jurisdiction’ in Sokol and Sokol is invaluable, Shakespeare’s Legal Language: A Dictionary (London: Athlone, 2000), pp. 167–71.
Good introductory accounts of the structure of the legal system in early modern England can be found in the works of legal historian, J. H. Baker: ‘Law and Legal Institutions’, pp. 41–54; ‘Criminal Courts and Procedure, 1550–1800’, in Crime in England, 1550–1800, ed. J. S. Cockburn (London: Methuen, 1977), pp. 15–48; ‘The Refinement of English Criminal Jurisprudence, 1500–1848’, in The Legal Profession and the Common Law: Historical Essays, ed. J. H. Baker (London: Hambledon Press, 1986), pp. 302–24.
For an account of the clash between common law and both the ecclesiastical courts and Chancery in the Jacobean period, culminating in the dismissal of Sir Edward Coke by James I personally, see James S. Hart, The Rule of Law, 1603–1660: Crowns, Courts, and Judges (Harlow: Pearson Longman, 2003) pp. 42–55. This conflict will be returned to in the discussion of The Revenger’s Tragedy in the final chapter.
Christopher Saint German, The Dyaloges in Englishe, Between a Doctour of Diuinitie, and a Student in the Lawes of Englande (London, 1565) (STC no. 21571.5). On the underlying ideological conflict in Reformation England and its impact on the legal system, see Hutson, The Invention of Suspicion, pp. 48–63.
For a good survey of the jurisprudential debate over equity in law, and the reception and influence of Aristotle’s notion of epieikeia, see Theodore Ziolkowski, The Mirror of Justice: Literary Reflections of Legal Crises (Princeton: Princeton University Press, 1997), p. 163ff (p. 166); see also Mark Fortier, The Culture of Equity in Early Modern England (Aldershot: Ashgate, 2005), chapter 2, ‘Equity and Law’, pp. 59–86; Dennis Klinck, Conscience, Equity, and the Court of Chancery in Early Modern England (Farnham: Ashgate, 2010).
William West, The Second Part of Symboleography (London, 1641) (Wing W1394A) p. 176, quoted in Bernadette A. Meyler, ‘Substitute Chancellors: The Role of the Jury in the Contest Between Common Law and Equity’, Legal Studies Research Paper Series (Cornell Law School, 2006) <http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1038&context=lsrp_papers> 1–39 (p. 12).
See Lorna Hutson, ‘Imagining Justice: Kantorowicz and Shakespeare’, Representations, 106 (2009), 118–42. Hutson rightly points out that equity is by no means incompatible with common law procedure, and therefore is not the sole property of the courts of Chancery.
See J. S. Cockburn, ‘The Nature and Incidence of Crime in England, 1559–1625: A Preliminary Survey’, in Crime in England 1550–1800, ed. J. S. Cockburn (London: Methuen, 1977), pp. 49–71 (pp. 67–9).
Brooks, Pettyfoggers and Vipers, p. 267. On the issues of professionalisation, see also J. H. Baker, ‘English Law and the Renaissance’, Cambridge Law Journal, 44 (1985), 46–61, where he discusses how ‘the shift of emphasis from doctrine (or common learning) to jurisprudence (or judge-made law) … is striking’ (original emphasis), p. 59.
Peter Goodrich, ‘Ars Bablativa: Ramism, Rhetoric, and the Genealogy of English Jurisprudence’, in Legal Hermeneutics: History, Theory, and Practice, ed. Gregory Leyh (Berkeley: University of California Press, 1992) <http://publishing.cdlib.org/ucpressebooks/view?docId=ft4779n9h2&chunk.id=d0e1453&toc.depth=1&toc.id=d0e1453&brand=eschol> [accessed 27 July 2015].
Case of Prohibitions (1607), 12 Co Rep 63–64. (available online at <http://www.bailii.org/ew/cases/EWHC/KB/1607/J23.html>) [accessed 27 July 2015]. For the influence of Coke on the formalisation and codification of English common law, see Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (London: University of Chicago Press, 1992), Chapter 3, ‘Writing the Law’, pp. 63–104.
See Keith Wrightson, ‘Two Concepts of Order: Justices, Constables and Jurymen in Seventeenth Century England’, in An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries, ed. John Brewer and John Styles (London: Hutchinson, 1980), pp. 21–46 (p. 26).
Wrightson, ‘Two Concepts of Order’, p. 24. Wrightson argues that the ‘concept of order was ubiquitous, but this is not to say it was monolithic’ (p. 22). See also J. A. Sharpe, ‘Enforcing the Law in the Seventeenth-Century Village’, in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. V. A. C. Gatrell, Bruce Lenman and Geoffrey Parker (London: Europa, 1980), pp. 97–119, for an account of the variety of non-trial-based methods of control available in the locality, including the practice of summary conviction before a justice, binding over and the use of the house of correction.
William Lambarde and Local Government: His ‘Ephemeris’ and Twenty-Nine Charges to Juries and Commissions, ed. Conyers Read (Ithaca, New York: Cornell University Press for The Folger Shakespeare Library, 1962), p. 92.
William Lambarde, Eiranarcha, or Of the Office of the Iustices of the Peace … Whereunto is added the newly reformed Commission of the peace (London, 1591) (STC no. 15166), p. 49.
Sharpe, Crime in Early Modern England, p. 33. John Langbein observes how restrictions in the commission granting justices of the peace their jurisdiction ‘kept power in the hands of the professionals’, that is, assize judges, in Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, MA: Harvard University Press, 1974), p. 116.
Braddick, State Formation in Early Modern England, c. 1550–1700, p. 38. Speaking of a later period, Douglas Hay says of the assizes that they were ‘the most visible and elaborate manifestation of state power to be seen in the countryside’, ‘Property, Authority and the Criminal Law’, in Albion’s Fatal Tree: Crime and Society in Eighteenth Century England, ed. by Douglas Hay et al. (London: Allen Lane, 1975), pp. 17–63 (p. 27).
Shapiro, ‘Political Theology and the Courts: A Survey of Assize Sermons c.1600–1688’, Law and Humanities 2 (2008), 1–28 (p. 28).
P. G. Lawson, ‘Lawless Juries? The Composition and Behaviour of Hertfordshire Juries, 1573–1624’, in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. J. S. Cockburn and Thomas A. Green (Princeton: Princeton University Press, 1988), pp. 117–57 (p. 148).
Susan Dwyer Amussen, ‘Punishment, Discipline and Power: The Social Meanings of Violence in Early Modern England’, Journal of British Studies, 34 (1995), 1–34 (p. 11).
J. A. Sharpe, ‘“Last Dying Speeches”: Religion, Ideology and Public Execution in Seventeenth-Century England’, Past & Present, 107 (1985), 144–67 (p. 148).
J. H. Baker, ‘Criminal Courts and Procedure at Common Law, 1550–1800’, in Crime in England, 1550–1800, ed. J. S. Cockburn (London: Methuen, 1977), pp. 15–48 (p. 43). Strictly speaking, all felonies in early modern England were punishable by death, but leniency was possible through such mechanisms as benefit of clergy. For a concise account on the workings of benefit of clergy, see J. S. Cockburn, ed., Calendar of Assize Records: Introduction, Home Circuit Indictments: Elizabeth I and James I (London: Her Majesty’s Stationery Office, 1985), pp. 117–21.
Alan Macfarlane in collaboration with Sarah Harrison, The Justice and the Mare’s Ale: Law and Disorder in Seventeenth-Century England (Oxford: Blackwell, 1981), p. 195 (using figures available in Cockburn, History of English Assizes).
Francis Bacon, ‘Of Judicature’, in The Essays, ed. John Pitcher (Harmondsworth: Penguin, 1985), pp. 222–5 (p. 223).
London in Early Modern English Drama: Representing the Built Environment (Basingstoke: Palgrave Macmillan, 2008), p. 51.
Humphrey Babington, Mercy and Judgement: A Sermon Preached at the Assize Held in Lincolne, July 5 1678 (Cambridge, 1678), p. 18 (quoted in Crime in Early Modern England, p. 205).
In Praise of the Laws of England, ed. Shelley Lockwood (Cambridge: Cambridge University Press, 1997), p. 17. This idea still has traction in more modern times: ‘The legal system is part of society in the same way that muscles and the circulation system are part of the body; the legal system does not and cannot exist as a viable, independent agency’, Lawrence M. Friedman, The Republic of Choice: Law, Authority, and Culture (Cambridge, MA: Harvard University Press, 1990), p. 4.
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Dunne, D. (2016). Vindictive Justice in Early Modern England. In: Shakespeare, Revenge Tragedy and Early Modern Law. Early Modern Literature in History. Palgrave Macmillan, London. https://doi.org/10.1007/978-1-137-57287-5_2
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