The Art of Law in Shakespeare
Oxford & Portland (Oregon): Hart Publishing, 2017
Hardcover. xiv+275 pages. ISBN 978-1509905478. £80
Reviewed by Dominique Goy-Blanquet
Université de Picardie Jules-Verne (Amiens)
Paul Raffield's Art of Law offers a sequel to Shakespeare's Imaginary Constitution with five hefty chapters, each exploring a dramatic quality of British common law in plays mostly Jacobean. A youthful Love's Labours Lost, infused with the ‘sweet smoke of rhetoric’, has shaped the aesthetics of English law in the Elizabethan period, whereas Macbeth moves to the court room to feed on treason laws and trials. The mature Winter's Tale explores inheritance, gender, gardening and statuary in a collection of fireside stories, Cymbeline revisits the constitutional problems created by the union of England and Scotland, The Tempest goes colonial in a context of imperial expansion. Not only these five plays but the whole Folio is filled with juridical metaphors: forensic phraseology has so insinuated itself in everyday language that without Raffield's vigilant attention, we might underestimate its presence in Shakespeare's dialogues, though how much of the legal dispute between the kings of France and Navarre has a direct bearing on the plot remains an open question. The range of literary and judicial references covered in the volume is so large that we must be grateful for its introductory guideline to each rich chapter – in total, some 260 pages in small print, plus an attractive collection of colour portraits and engravings – and content ourselves in this review with a brief taste of their infinite variety.
Common law is a gift of God, close to His natural law, but it needs artificial means to be understood. With large helpings from Geoffrey of Monmouth's Historia Regum Britanniae and Fortescue's De Laudibus Legum Angliae, Sir Edward Coke powerfully contributed to the mythography of an immemorial and immutable common law, triumphant over the invasions, dynastic changes and violent upheavals suffered through the ages by the British legal system. From Vergil's original Brutus via Monmouth's Brute, a ‘second Brute’ was born in the person of James I. Raffield aims to show how during the first decade of the Stuart's reign law and drama developed contiguously. Each chapter adds substance, at the risk of surfeit sometimes, to the programme sketched in the introduction. Chapter I, ‘Fie, painted rhetoric’, intertwines Thomas Wilson's The Arte of Rhetorique (1553), Abraham Fraunce's The Lawiers Logike (1585), the Middle Templar John Davies' satirical epigrams and Shakespeare's Love's Labour's Lost with two later works both entitled The English Lawyer – an academic primer by Sir John Dodderidge published in 1631, and a satirical drama of 1677 adapted from Ignoramus (1615) by Edward Ravenscroft – to highlight the shortcomings of English legal education, the common lawyers' barbarity and their manipulative uses of rhetoric. Worse still, they disputed in law French, an infamous memory of the Norman conquest, which no one outside the profession understood. They made choice satirical targets for John Day, Marston, and of course George Ruggle, a Cambridge man, whose Ignoramus much amused King James but much ‘netled’ his Lord Chief Justice Edward Coke. These works allow sideviews on the emergence, growth, entertainments and social composition of the Inns of Court, thus exposing a decline in English jurisprudence from the ideal of law to the secular and profane. At the court of Navarre, a mirror image of the Inns, Raffield argues, the four young protagonists of Love's Labour's Lost entrap themselves in the bubble of art at the expense of natural human behaviour: audible complaints are made around them that without context and ethical framework, rhetoric is just a compendium of specious tricks. From there, we move on to performances of Shakespeare's plays at the Inns, to their connections with the Gray's Inn revels, and to a possible source of both, Pierre de la Primaudaye's The French Academy, which extols the Ciceronian ideal of virile friendship. A glance at Nashe's Lenten Stuffe and its obsession with the inconstancy of words reveals ‘a mimetic and almost invisible synergy or cross-fertilisation between theatre, satire and the legal community at the Inns of Court’ .
Regicide begins with the first thought that sets the plan in motion. In the interim before the actual deed, the accused stands already guilty of high treason, an issue examined in numerous plays. Macbeth is selected for its especial resonance with an attempt to murder the King of England and Scotland a mere two years after his coronation in July 1603, the Gunpowder Plot. Beside this obvious parallel, Raffield detects in the character of Lady Macbeth echoes of the charges against the late Mary Queen of Scots, whom rumour accused of complicity in the murder of her husband Henry Stuart Lord Darnley, king consort of Scotland. In order to elucidate the status of evidence in State trials, and the proliferation of Treason Acts in the sixteenth century, four cases are examined: Mary's in 1586, the Gunpowder plotters', Henry Garnet's, Superior of the Jesuits, who heard of the plot in confession, and Sir Walter Raleigh's in 1603. Under the Statute of 1352, no witnesses were needed to secure a guilty verdict, nor defence counsels allowed in cases of felony, Raleigh learnt to his cost. His hubris made him not just a traitor and a villain, as portrayed by a vindictive Edward Coke, but a flawed tragic hero. In this sense, Raffield insists, his trial for High Treason ‘functioned as a form of tragic morality play’ , in which the fate of the hero was predetermined. One might object that ‘tragic morality play’ is an oxymoron, with tragedy restricted to the punishment of sin, in keeping with the common notion that ‘When the villain bleeds, then is the tragedy good’, rather than with Shakespeare's much finer sense of the tragic. But Raffield is indisputably right when he reads the trial as ‘a dramatic enactment of the fall of man’ , and declares Coke's performances in the court room as ‘invariably histrionic’ . Numerous quotes stress the similitudes between court proceedings and stage interludes.
Coke's main charge against the Gunpowder plotters, like Macbeth's, was ‘a breach in nature’ operated on the body politic, malicious intent like poison feeding the roots of treason's tree. Many, like Francis Bacon, felt that Coke was going too far, that his use of metaphor threatened the certainty of meaning. The theme of equivocation held pride of place in Garnet's trial, though his answers were truthful enough, whereas his prosecutors, Coke included, dissembled in presenting dubious items of evidence. Other echoes of the Attorney-General's opening address are audible in Macbeth, through the Porter's speech, and the dynastic succession of James's ancestors, from which Mary Stuart is notably absent. The letter to Lady Macbeth recalls the famous Casket letters produced at the Queen of Scots' trial, an elaborate staging denounced by her as ‘a shew and colour of a just and legal Proceeding’. Though Robert Beale drew two parallel pictures of her trial and of her execution, only one is shown here, side by side with a sketch of the Swan theatre.* As for Malcolm's nomination, Holinshed clearly reports a change in the mode of succession under Duncan's reign from tanistry to a form of primogeniture, where in the tanist system Macbeth would have had a stronger claim than Duncan's son – a highly sensitive issue at each royal demise since the publication of Henry VIII's will. The end of the chapter concentrates on the legal fiction of the King's two bodies formulated by Edmund Plowden in his Case of the Duchy of Lancaster. It is worth recalling here that, when approached for a learned opinion on Mary's rights to the throne of England, Plowden wrote a Treatise on Mary, Queen of Scots, 1566, and a later one declaring Henry's will invalid as the law then stood, which Kantorowicz had not read when he wrote his famous essay. For more on this fascinating material, see Mary Axton, who oddly enough is never quoted. Macbeth's death raises again the tricky issue of tyrannicide, which James himself had expounded at length in his Trew Law of Free Monarchies. His conclusion, unsurprisingly, was that no temporal jurisdiction could ever pass judgment on the actions of a king. Even the strongest advocates of a monarchy-under-the-law, from Bracton to Fortescue, from Thomas Smith to Richard Hooker, did not claim that rebellion against a tyrant was legitimate. Only Buchanan, James's boyhood tutor, advised a cure of the body politic by severing its diseased head, as Charles's would be, like Macbeth's, by the authority of those Charles termed his ‘pretended judges’. Perhaps, Raffield cautiously suggests, Shakespeare was beginning to think, ten years after Richard II, that Plowden's theory, which the revered Maitland considered metaphysiological nonsense, was ‘an intellectual antic, of diminished political importance’ .
Trials stand in the foreground of several plays. To these, Henry VIII could have been profitably added, since Katherine of Aragon appears mirrored in Hermione, daughter like her to a foreign king, like her brought before a court of justice, banished ‘to a desert place’ and separated from her own daughter. The grafting metaphor, central to The Winter's Tale, ropes in the family tree of the Tudor rose, mixed government, manuals of horticulture, Bacon's 'Of Gardens', Puttenham, Fortescue, Pliny, Ovid... as the plot moves from the Golden to the Iron Age, and Apollo, god of music, truth and poetry, plays the part of lawgiver in absentia. A discussion of the Sharington v. Strotton case, in which a close relative was grafted to the original rootstock, shows Plowden rehearsing the argument Polixenes will put forth, that art – or law – is ordained by nature. In that case, brotherly love and the desirability of succession by heirs male won the day. Shakespeare's gallant feminine figures strongly contrast with the portrayal of transgressive women in various Inns of Court masques and dramas. The last section of this chapter explores the ‘visual rhetoric’ of royal iconography, the associations of Queen Elizabeth with various mythological figures, with the Blessed Virgin, and by her own admission of affinities, with Richard II. Both their coronation portraits were painted several decades after the event, both possibly with fears of deposition in mind, Raffield thinks: these similarities may have been encoded as a warning to Elizabeth's successor to abide by the Bractonian doctrine of limited kingship if he would avoid the fate of Richard II.
The poet John Davies expresses a thought common among his fellow jurists when he writes that law derives its authority from God and nature. The Stuarts, like their Tudor forebears, claimed descent from the Celtic kings, themselves descendants of the Trojan Brutus, who were held to be the founders of British law, lex eterna, ius commune, ‘written with the finger of God in the heart of man’. But King James I did not hesitate to trample it underfoot when it opposed the extension of his royal prerogative or the expansion of his empire. His ambition to be a peacemaker was modelled on Augustus' pax romana, but his absolutist leanings soon soured his relations with Parliament and with his Chief Justice Coke. Cymbeline, to Raffield, reflects the problematic assimilation of rival procedures into the native legal tradition, when an invasion of Roman colonisers threatens the British realm. A headless corpse dressed in borrowed clothes appears on stage, symbol of the decapitated body politic. High up on James's agenda was the unification of England and Scotland, and the name of Shakespeare's hybrid hero Posthumus chimed well with the Postnati case extensively discussed in court two years earlier. At stake was the status of Scottish subjects born after James's accession, which Bacon paralleled with the reception of strangers by the Roman Empire. The common lawyers feared an invasion of civil law, the prevailing jurisdiction in Scotland. To show the full measure of the threat, Raffield goes back to the creation of the Court of High Commission under Henry VIII, and the successive assaults on the supremacy of the common law courts. Arbitrary imprisonments like Posthumus' raised clamours in Parliament for recognition of liberty as a fundamental right, but it would take another twenty years before they matured into the Petition of Right. Raffield brilliantly uncovers multiple layers of the play, though I beg to differ when he makes the Princes adhere to Belarius' pastoral: on the contrary they complain that his cave is ‘a cell of ignorance’, too constricted for their valour, that they are bored stiff under this low roof and want action, thus revealing their princely nature. Cymbeline's acceptance of the tribute to Rome may be advocating expansion through commercial exchange rather than war, but better still, it acknowledges another mode of conquest and the debt owed by British writers to Roman culture.
The Tempest and Miranda's brave new world are located in a Mediterranean island, somewhere east of Bermuda, whose occupants borrow colours from Montaigne's essay ‘Of the Canniballes’ and reports of voyages to Virginia. Among mythical predecessors were Atlantis and Utopia, plus a host of imaginary islands in between. Raffield's last chapter extends from the insular Inns of Court to the first island colonised by the English legal system, Ireland, whose Attorney-General for most of James's reign was the lawyer-poet John Davies. In the play, several treasonous plots give the lie to Gonzalo's ideal commonwealth: all are thwarted by Prospero, who renounces his ‘revels’ and masques at the end, once he has forcibly restored a semblance of order in his unruly community. Jacobean audiences may have noticed parallels with the taming of wild Ireland, and with the plantation of an English colony in Virginia. In both cases, the settlers were reported to have shown kindness to the savages, before resorting to coercive methods of control. The response of the legal profession to the colonisation of the New World was illustrated by two Inns of Court masques performed at the Banqueting House in the presence of King James: both showed the Virginians renouncing their pagan rites in favour of ‘our Britan Sun’ and his laws.
Having fully established that common law and poetic drama ‘inhabited a common rhetorical schema’, Raffield gives the last word to Coke as ‘the putative British citizen’  whose legal language both echoed Gaunt in his tribute to ‘This Sea-Invyrond Iland, the beauty and wonder of the world’ and lent to the theatre ‘its overarching themes of justice, sovereignty, community, legitimacy, fairness and humanity’ .
* Both Beale's drawings can be seen appended to my 'Execution of Justice', Littératures classiques / Le théâtre, la violence et les arts en Europe (XVIe-XVIIIe s.), n° 73, 2010, and to my chapter on 'Tudor Lawyers' in A Cultural History of Law in the Early Modern Age (Peter Goodrich ed., London: Bloomsbury, 2018).
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