The dramatic imagination and the dream of law

The dramatic imagination and the dream of law

Having addressed the emperor Saturninus thus, Titus Andronicus, more sinned against than sinning, slays his raped and mutilated daughter Lavinia. The precedent to which he 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: ‘Then he snatched a knife from a butcher, and crying: “There is only one way, my child, to make you free,” he stabbed her to the heart’ (Livy 1960: 220).² Precedent – the source of lawful authority and the historical basis to all legitimate conduct – is a thematic sine qua non of Shakespeare’s The Most Lamentable Roman Tragedy of Titus Andronicus. The play’s setting in a fictionalized version of fourth-century Rome serves as an allegorical paradigm for the imperial form of late-Elizabethan monarchic rule.³ Shakespeare found precedents for the various narrative elements of the play in Livy’s Roman History, Plutarch’s Lives, Seneca’s Thyestes, Virgil’s Aeneid, and (especially) Ovid’s Metamorphoses.

The use of the terminology of common law in the above passage from Titus Andronicus is striking: not merely ‘precedent’ and ‘warrant’, but ‘reason’. For those early modern common lawyers contemporaneous with Shakespeare, reason provided the intellectual justification for all municipal laws. The Elizabethan jurist and law reporter Edmund Plowden declared that common law was ‘no other than pure and tried reason’ (Plowden 1792, vol. 1: 316),⁴ while for Sir Edward Coke, the ‘fortunes of [the King’s] 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’ (Coke 1777, vol. 7: 65a).⁵ Coke is referring here to the prolonged period of training at the Inns of Court and apprenticeship in the courts at Westminster, a process which Sir John Doderidge described as ‘the worke of many yeares, the attaining whereof will waste the greatest part of the verdour and vigour of our youth’ (Doderidge 1631: 29). The lawyers found exemplars of reason in the past; sometimes recent, but more often of immemorial origin. Coke recommends the readers of his Reports to ‘cast thine eye upon the sages of the law, that have been before thee’. He alludes here to the patriarchs of the common law, its judges. The provenance of these judicial archetypes is divine. They have (according to Coke) ‘sucked from 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’ (Coke 1777, vol. 1: x–xi).6 Through his systematic (if opinionated) reporting of contemporary cases, and his emphasis on the antiquity of common law and the legitimacy that its immemorial nature conferred on judicial decision-making, Coke elevated the binding power of precedent or stare decisis to hitherto unknown levels.⁷ Kevin Sharpe makes the important observation that the synthesis between past and present gave to history an exalted status in the governance of early modern English society (Sharpe 1989: 174–81). Taking as my starting point the argument of Jonathan Bate in the Introduction to the Arden edition of the play, that Titus Andronicus is ‘a dramatic antecedent to Sir Edward Coke’ (Shakespeare 1995: 28), I examine here the overriding importance of precedent to the development of drama and law in the early modern period. In particular, I consider the influence of literary paradigms over the depiction of an idealized juridical state: one that owes its creation as much to the poetic imaginations of lawyers as it does to the juristic representations of dramatists.

Immediately prior to his reference to ‘reason mighty’ and ‘pattern, precedent, and lively warrant’, Titus poses Saturninus the question: ‘Was it well done of rash Virginius / To slay his daughter with his own right hand, / Because she was enforced, stained and deflowered?’ (5.3.36–38) Following Saturninus’s affirmative response, Titus asks ‘Your reason, mighty lord?’ (5.3.39) Of course, reason here means ground, premise, or justification. But use of the word in close proximity to the legal language of precedent and warrants inevitably recalls the sense in which Coke and his fellow common lawyers employ it; in other words, the power by which truth may be distinguished from falsehood, and right from wrong. Indeed the title-page of the First Part of Coke’s Reports bears the Ciceronian maxim: Lex ext certa ratio e mente divina manans [‘Law is unerring reason adhering to a divine purpose’].⁸ This short sequence in Titus Andronicus, no more than nine lines in length, works simultaneously on several different levels. It provides an intellectual counterpoint to the gruesome onstage banquet, at which Saturninus and Tamora devour the remains of Chiron and Demetrius, slain and cooked in a pie by Titus. It objectifies and lends theatrical focus to Lavinia, who at the end of the sequence is unveiled and killed by her father. A less obvious but (given the deliberate use of legal terms) intentional effect is to conflate dramatic dialogue with the agonistic form of juridical procedure. The questioning of Saturninus by Titus on the rectitude of Verginius’s action in slaying his daughter replicates the courtroom examination of witness by counsel; in particular it mirrors the oral educational exercise at the Inns of Court of the ‘bolt’ (from the thirteenth-century, Old-French word ‘bulter’ meaning to examine and separate) and its more exalted cousin, the moot.9

That Shakespeare was familiar with the technical and institutional arcana of the common law and the English legal profession is well-documented.¹⁰ In numerous of his plays – perhaps most notably Richard II, The Merchant of Venice, Measure for Measure, King Lear 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-dramatic significance of these individual courtroom dramas beyond noting the obvious stylistic feature common to all of them, that the adversarial nature of English legal disputation is inherently 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 especially by the impact of the law on individual members of the society 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: ‘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) 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 language of English law. ‘[W]hy may not that be the skull of a lawyer?’ asks Hamlet in the graveyard scene:

In the above passage Shakespeare weaves the jargon of property law and contract law into his protagonist’s meditation on mortality. Tenures, statutes, recognizances, fines, recoveries, vouchers, double vouchers; all technical terms, concerned with the acquisition and disposition of land. ‘[A]nd 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 a 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 passes not only the land itself but the history or memory of its owners, with all the stories of their quiddities, quillets, cases, and tricks. 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’ (Bate 1993: 84).

It is noteworthy that two prominent modern commentators on the evolution of the western legal tradition – Ronald Dworkin and Martha Nussbaum – should identify the literary techniques of fiction writers as a salient feature of the common law and its judicial patriarchs. Dworkin employs the image of the chain novel (in which a novel is written by a succession of writers, each one interpreting and adding to the previous chapters) to describe the role of the judge in interpreting and adding to the existing body of law (Dworkin 1986: 228–32). Sir Edward Coke was unconsciously acknowledging the role of the judge as chain novelist when he wrote in the Preface to Part Three of The Reports: ‘Right profitable also are the ancient books of the common laws yet extant, as Glanvile, Bracton, Britton, Fleta, Ingham, and Novæ Narrationes, and those also of later times, as the old Tenures’ (Coke 1777, vol. 2: iv). For Dworkin, rights and duties ‘flow from past collective decisions’ (Dworkin 1986: 227), and history is central to the project of law because it enables our lawgivers through present practice to ‘provide an honorable future’ (Dworkin 1986: 228) by reference to the rectitude of these past judgments. At the level of historiography the body of common law may therefore reasonably be described as a collection of stories, linked to each other by their institutional history, and passed down by privileged storytellers or narrators. It is noteworthy in this context that the Latin word with which to describe the Order of Serjeantsat-Law (the medieval and early modern equivalent of Queen’s Counsel) is narratores: a narrator being one who tells a story; while their counterparts in the ecclesiastical courts were known as advocati.11 The English legal system of the early modern period was derived from an oral tradition; its adversarial juridical procedures were predicated on an agonistic model in which competing narratores presented contending stories and were judged on the basis of their persuasive skills.

The parallels with drama are obvious and compelling, not the least being the recording of oral storytelling in textual form. It was in the sixteenth century, as the published Law Reports (especially those of Plowden) replaced the Year Books, and as an independent legal profession was recognized by statute, that standardization and systemization of the common law was established. As William Holdsworth noted, the shift from oral to written pleadings made the salient 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.¹² No longer would law reporters or counsel be impelled to ask judges for the reasons for their decisions, as happened in the 1566 case of Sharington v Strotton, in which, judgment having been given against the plaintiff, Plowden records that counsel ‘said, may it please your lordship to shew us, for our learning, the causes of your judgment’ (Plowden 1792, vol. 1: 309). 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’ (Plowden 1792, vol. 1: 190).

Throughout the sixteenth century, the significant advances in printing technology facilitated the unprecedented distribution of published, standardized law reports.13 Judgment became increasingly a creative task of literary endeavour, in which interpretatio or hermeneutics was a central rhetorical skill. With reference to Walt Whitman’s ‘By Blue Ontario’s Shore’, Martha Nussbaum cites the ‘poet-judge’ (Nussbaum 1995: 80) as the embodiment of equitable justice. This ‘equable man’ is the personification of equity in law.¹⁴ In relation to the expression of juristic ideals in the plays of Shakespeare, I agree with Nussbaum’s broad thesis that equity is more to do with the literary imagination than it is with legal norms and judicial reasoning. To write of the equitable principles of common law in early modern England may seem oxymoronic to lawyers and legal historians, to whom Equity and common law were rival (and at times incompatible) jurisdictions. But the statement is entirely consonant with the claims made for English law by juristic commentators of the period, whose understanding of equity was founded in the Aristotelian tradition of epieikeia rather than in the judicial pronouncements of the Court of Chancery. When Whitman wrote of the poet that ‘[h]e is no arguer, he is judgment, (Nature accepts him absolutely,) / He judges not as the judge judges but as the sun falling round a helpless thing’ (Whitman 2009: 269), he was prolonging the tradition of an earlier generation of jurists who equated English law with natural moral authority, of immemorial provenance.

Nature and the dreamland of law

In De Laudibus Legum Angliae, the late fifteenth-century Lord Chief Justice Sir John Fortescue stated that English law was ‘deduced from the Law of Nature’ (Fortescue 1737: 29);¹⁵ while Sir Edward Coke would later argue not only ‘that the law of nature is part of the law of England’, but that it was of greater antiquity (and therefore of greater legitimacy) than ‘any judicial or municipal law’ (Coke 1777, vol. 4: 12b).¹⁶ As Coke acknowledged in the title-page to the First Part of The Reports, one of the principal classical progenitors of natural law theory was Cicero, for whom ‘[t]rue law is right reason in agreement with nature; it is of universal application, unchanging and everlasting’ (Cicero 1928: 211).¹⁷ The indivisible correlation of reason and nature is fundamental to the Ciceronian definition of law: the values of law are eternal and immutable. But within that philosophical framework, the juridical application of law is an aesthetic exercise in which (to borrow Coke’s phrase) ‘artificial reason’ dominates and determines both process and outcome. In the classical imagery employed by Nietzsche in The Birth of Tragedy, art (which for the purpose of the present analysis I take to include law in its juridical context) ‘derives its continuous development from the duality of the Apolline and Dionysiac