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Abstract
Three centuries before Auden’s conflation of law and love, Jonson’s The New Inn is re-read as a staging of the inescapable confrontation of rhetoric and legality, logic and emotion. Law as lived experience inflecting and inflected by real people, the immediacy of their emotions and passions, the inassimilable surplus that defeats discipline and disciplinary parameters; law as a function of human relationship—be it personal or communal is shown to be the subject matter and jurisdiction of the Courts of Love.
Notes
1. Ben Jonson, The New Inn [1631], Michael Hattaway, ed. (Manchester: Revel Series, 1984)
.2. Ben Jonson, Volpone, David Cook, ed. (Bungay: Routledge, 1984), 153
.3. John Webster, The White Devil, John Russell Brown, ed. (Manchester: Manchester University Press, 1996)
. For Vittoria’s use of term “auditory,” see III.iii.15; for Webster’s, see the prefatory letter “To the Reader.”4. Alan Watson, ed. and trans., The Digest of Justinian, (Philadelphia: University of Pennsylvania Press, 1985), Vol. 1
, 3.2.1.5. Peter Goodrich, “Law,” Encyclopaedia of Rhetoric
, T. Sloane, ed. (New York: Oxford University Press, 2001) .6. Id., at 418.
7. Id., at 422.
8. The glossatorial method characterised the twelfth-century reception of Roman law, which prohibited commentary and interpretation to preserve the inviolable text of the law. See Goodrich, “Law,” 423; Ian Maclean, Interpretation and Meaning in the Renaissance (Cambridge:Cambridge University Press, 1992), esp. 12–66
; and 39–40 on the inbuilt checks to infinite interpretative proliferation in the Corpus Juris Cirilis itself.9. Tangle in Thomas Middleton’s The Phoenix, Throat in Lording Barry’s Ram Alley, Lurdo in John Day’s Law-Tricks and Otter and Cutbeard in Jonson’s Epicœne are only a few examples. Voltore in Jonson’s Volpone is a well-known comic treatment of a corrupt lawyer. See E.F.J. Tucker, Intruder Into Eden: Representations of the Common Lawyer in English Literature 1350–1750 (Columbia, South Carolina: Camden House, 1984)
, on dramatic representations of the common lawyer, and Bertil Johansson, Law and Lawyers in Elizabethan England as evidenced in the plays of Ben Jonson and Thomas Middleton (Stockholm: Acta University Press, 1967) , on legal figures in Jonson and Middleton.10. See Webster, supra note 3 at III.ii.40. For satire on legal obscurantism, see also Day, Law-Tricks, Ruggles, Ignoramus, and Jonson, Epicœne and The Staple of News.
11. S.C. Humphreys, “The Evolution of Legal Process in Ancient Attica,” E. Gabba, ed., Tria Corda: Scritti in onore di Arnaldo Momigliano (Como: Edizioni New Press, 1983), 229–51
; Paul Bullen, “Lawmakers and Ordinary People in Aristotle,” Justice v. Law in Greek Political Thought, Leslie G. Rubin, ed. (Lanham, Maryland: Rowman and Littlefield, 1997) .12. Thomas Andrew Green, Verdict according to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press, 1985)
and Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800 (Princeton: Princeton University Press, 1988) ; Julius Stone, Evidence: its history and policies (Sydney: The Law Book Company Ltd., 1991) ; Barbara Shapiro, A Culture of Fact: England, 1550–1730 (Ithaca/London: Cornell University Press, 2000), 11–13 , on the commensurate importance of witness testimony and jurors’ assessment of “facts.” See also Lorna Hutson, “Rethinking ‘the Spectacle of the Scaffold’: Juridical Epistemologies and English Revenge Tragedy,” Representations 89 (Winter 2005), 30–58, on the implications of jury trial and the participatory nature of the common law for Renaissance revenge tragedy, meant to be a corrective to Elizabeth Hanson’s reading of the investigative methods of English common law in terms of the French inquisitorial system in Discovering the Subject in Renaissance England (Cambridge: Cambridge University Press, 1998).13. Joel Altman, The Tudor Play of Mind: Rhetorical Inquiry and the Development of Elizabethan Drama (Berkeley: University of California Press, 1978), 283; c 394
.14. On medieval courts of love, see W.A. Neilson, The Origins and Sources of the Court of Love. Harvard Studies and Notes in Philology and Literature Ser.8 , 1899
.15. See J. Rycher, ed., Les Arrets d’Amour de Martial d’Auvergne (Paris: 1951)
.16. See Jonson, supra note 1 at 30–31.
17. Peter Goodrich, “Gay Science and Law,” Rhetoric and Law in Early Modern Europe, Victoria Kahn and Lorna Hutson, eds. (New Haven: Yale University Press, 2001), 95–124
.18. Friedriche Nietzsche, The Joyful Wisdom (La Gaya Scienza), Thomas Common, trans. (Edinburgh: Foulis, 1910)
.19. See Goodrich, supra note 17 at 101.
20. Id., at 102.
21. Id., at 108.
22. Id., at 106
23. Id., at 107.
24. Tzevetan Todorov, “The Origins of Genre,” 8.1 New Literary History 159–170
(Autumn 1976).25. Subha Mukherji, Law and Representation in Early Modern England (Cambridge: Cambridge University Press, 2006)
.26. For a theoretical formulation of the “unconscious” of the law, and of the “legal imaginary,” see Peter Goodrich, Oedipus Lex: Psychoanalysis, History, Law (Berkeley: University of California Press, 1995)
. For Henry Swinburne’s struggles, see A Treatise of Spousals, or Matrimonial Contracts, Randolph Trumbach, ed., (London: Garland, 1985), A Briefe Treatise of Testaments and Last Willes (London: I. Windet, 1590), and Of the signification of diverse woordes importing Matrymonye, and whye yt is rather names matrimonie than Patrymony (Durham University Library, Mickleton and Spearman MS. 4, 115–24, transcript forthcoming as Appendix in Mukherji, Law and Representation); Spousals is the most fully worked out and most suggestive treatise from this point of view.27. But note that civilians went on to practise canon law in church courts, and Civil law could be relevant to some areas of secular law not covered by common law.
28. See Goodrich, supra note 17 at 106.
29. Friedriche Nietzsche, Ecce Homo (Edinburgh: Foulis, 1911), 352
, quoted in Neilson, supra note 14 at 106.30. See Goodrich, supra note 17 at 98.
31. Peter Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric and Legal Analysis (Basingstoke: Macmillan, 1987), 205–6
.32. See Goodrich, supra note 17 at 97.
33. Howard Bloch, Medieval French Literature and Law (Berkeley: University of California Press, 1977), 214
.34. See Mukherji, supra note 17, and a shorter version of the argument in Subha Mukherji, “Women, law and dramatic realism in early modern England,” 35.2 English Literary Renaissance 248–272 (April 2005)
35. See Webster, supra note 3 at III.ii.130.
36. The gate of “Vienna,” constructed as a place for adjudication, combines both the sense of law-court and royal (or ducal) court, and recalls the often figurative understanding of the “court” in the period. The factors defining a space or an event were ownership and authority, specific structures, and presences. Vincentio, “Duke” of Vienna, here embodies the authority of the governor.
37. Measure for Measure, V.i.177. References to Shakespeare’s plays are William Shakespeare, The Riverside Shakespeare, G. Blakemore Evans, ed. (Boston: Houghton Mifflin, 1974).
38. Id., V.i.178.
39. Id., V.i.202–203.
40. Id., V.i.205.
41. Sex was assumed to be the surest proof of consent: this is why it was seized upon by law as a validating or finalising factor in uncertain matches or engagements. Hence the quasi-legal logic of Bertram’s holding out against that only validating criterion left him to resist, in an otherwise formalised and enforced marriage—as if by refusing to sleep with Helena, he can still somehow prevent his marriage from materialising. Helena, by abiding by his conditions, tacitly accepts that logic but uses hard-headed law to beat it, and fairy-tale ambience to present it. On the relation between pure fiction and legal thinking in Bertram’s conditions and Helena’s meeting of them, see Subha Mukherji, “Lawfull Deede”: Consummation, Custom and Law in Shakespeare’s All’s Well that Ends Well,” 49 Shakespeare Survey 181–200 (1996)
.42. See Shakespeare, supra note 37 at “All’s Well,” V. iii. 290–291.
43. Id., V.iii.293.
44. Id., V.iii.277–278.
45. Id., V.ii.305–306.
46. See Mukherji, supra note 25 at Chap. 1, passim. The most direct dramatic example of a union at once valid and less than fully legitimate is Claudio and Juliet’s consummated handfast (sic) marriage in Measure. (A handfast was the symbolic gesture of clasping hands through which many informal or unsolemnised marriages were contracted.) Witness Claudio protesting to Lucio, with a curious combination of innocence and guilt, that she is “fast [his] wife” and that “the stealth of [their] most mutual entertainment/With character too gross is writ on Juliet” (I.ii.126); the confused mixture of indignation and disgust in this assertion of a “true contract” that is yet furtive and reprehensible is an emotional analogue to the lawful deceits that Helena and Mariana engage in.
47. On the provenance of the bed-trick in literature and in myth, see Wendy Doniger, The Bedtrick: Tales of Sex and Masquerade (Chicago: University of Chicago Press, 2000
). See also Marliss Desens, The Bed-Trick in English Renaissance Drama: Explorations in Gender, Sexuality, and Power (London: Metheun, 1994) .48. See Swinburne, supra note 26 at 116. Compare Thomas Heywood, A Curtaine Lecture (London: J. Aston, 1637), 103
: “the word nuptiæ is derived from nubo, which signifieth to cover.”49. William Shakespeare, Hamlet, The Riverside Shakespeare, G. Blakemore Evans, ed. (Boston: Houghton Mifflin Company, 1974)
, II.i. 64–5.50. On Derrida’s logic of the supplement, see Of Grammatology, Gayatri Chakravorty Spivak, trans. (Baltimore: Johns Hopkins University Press, 1976), 144–315.
51. On the mistake of such readings, see Anne Barton, Ben Jonson, Dramatist (Cambridge: Cambridge University Press, 1986), 258–84
; on the inadequacy of the “parody theory,” see 265–66. On the play’s unhappy critical history, and its combination of poetic drama and satire, see Hattaway’s introduction in Jonson, supra note 1 at 18–29.52. See Jonson, supra note 1 at I.VI. 110–13.
53. Id., at 115–16.
54. Id., at 63.
55. Id., at 68.
56. Id., at 70–79.
57. Id., at 139–44.
58. Id., at 154–73.
59. Id., at II. Vi. 105, 108–15.
60. Id., at IV.iv.252–54.
61. Id., at IV.iv.223–24.
62. Id., at 139–144.
63. Id., at 154–173.
64. Id., at 210.
65. Id., at 256–257.
66. Id., at I.vi.165–168.
67. Id., at III.ii, 210–12, 215–16.
68. Id., at 213.
69. Id., at IV.iv.145–47.
70. Id., at IV.iv.296–303.
71. Id., at I.vi.95–97. See Anne Barton’s discussion of this name, as well as others, in Barton, supra note 51 at 275.
72. See Id., at 267, on why Jonson’s Argument, giving the plot away, was a mistake, retrospectively added at the time of publication after the play’s unsuccessful first performance at Blackfriars.
73. Lovel is as old as Frances’s father, Goodstock’s own wife has been a drunken Irish nurse at his Inn all this while, and chambermaid Pru gains both stature and status as Latimer falls for her after her performance in “Court.”
74. See Jonson, supra note 1 at V.v.43–45.
75. Id., at 112–15.
76. Id., at III.ii.104–6.
77. Id., at II.vi.191.
78. See Mukherji, supra note 25 at Chaps. 1 and 6.
79. The analogy with Love’s Labours Lost is suggestive, for that too is a play that converts bright young things, love-sceptics, to the ways of the heart, but offers no immediate or unconditional promise of permanent reward. There, the play stands on the side of realism and resists the fantasy ending that late Jonson grants his family romance.
80. See Jonson, supra note 1 at V.v.153–5.
81. See Goodrich, supra note 18 at 112–13.
82. Francis Beaumont and John Fletcher, The Dramatic Works in the Beaumont and Fletcher Canon, Fredson Bowers, ed., 8 vols. (Cambridge: Cambridge University Press, 1996), Vol. III, 490
.