- Don E. Wayne, “Drama and Society in the Age of Jonson: An Alternative View,” 13 Renaissance Drama 104 (1982). For Maine's seminal idea of the displacement of status by contract, see Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (1861; Dorset, 1986), esp. pp. 139–41, 252–305.
- Id., at 115.
- A.W.B. Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (Oxford: Oxford University Press, 1975), p. 316.
- On the early history of the doctrine of consideration see Id., at 316–405; J.H. Baker, “Origins of the ‘Doctrine’ of Consideration,” 1535–1585, On The Laws and Customs of England: Essays in Honor of Samuel E. Thome, Morris S. Arnold, Thomas A. Green, and Stephen D. White, eds. (Chapel Hill: University of North Carolina Press, 1981), pp. 336–358; J.L. Barton, “The Early History of Consideration,” 85 Law Quarterly Review 372 (July 1969).
- I know of no such cases. There were, of course, cases where playwrights hired to produce plays were sued for failing to do so; see Laurie E. Maguire, “A King's Men's Contract and Dramatic Output,” 32. 1 Notes And Queries n.s. 73–4 (March 1985); R. Mark Benbow, “Dutton and Goffe versus Broughton: a disputed contract for plays in the 1570s,” 2 Records of Early English Drama, 3 (1981).
- See David Riggs, Ben Jonson: A Life (Cambridge: Harvard University Press, 1989), pp. 124–26. By 1609 Jonson had already become disaffected with Salisbury. Salisbury died in 1612.
- On Jonson's connections with these figures see I.A. Shapiro, “The ‘Mermaid Club,’” 45 Modern Language Review 1, 6–17 (1950). On the debates surrounding the Great Contract see Samuel Rawson Gardiner, ed., Parliamentary Debates in 1610, edited, From the Notes of a Member of the House of Commons (Westminster: Camden Society, 1862); AlanG. R. Smith, “Crown, Parliament and Finance: The Great Contract of 1610,” The English Commonwealth 1547–1640: Essays Presented to Joel Hurstfield, Peter Clark, Alan G.R. Smith, and Nicholas Tyacke, eds. (Leicester University Press, 1979), pp. 111–27; Roger Lockyear, c (London: Longman, 1989), pp. 173–82.
- Shapiro determines that the group was primarily one of lawyers, and that Jonson's presence there was one of a few exceptions. The poets were joining a lawyer's fraternity, not the other way around.
- Pierre Bourdieu, Outline of a Theory of Practice, Richard Nice, trans. (Cambridge: Cambridge University Press, 1977), pp. 1–15.
- Michel de Certeau, The Practice of Everyday Life, Steven Rendell, trans. (Berkeley: University of California Press, 1984), p. 82.
- Thus Iago, the tactician par excellence, instructing Roderigo to be patient, can remark that “wit depends on dilatory time,” when moments later, alone, he can urge himself to headlong action: “Dull not devices by coldness and delay” (Othello, The Riverside Shakespeare, G. Blakemore Evans, ed. (Boston: Houghton Mifflin, 1974), pp. 373–88. Iago's wit is precisely the ability to negotiate between the precipitant and the dilatory; and it thus recapitulates the compositional negotiation Shakespeare himself attempted in the notorious “double time” of the play.
- Stanley Fish, “Authors-Readers: Jonson's Community of the Same,” Representing the English Renaissance, Stephen Greenblatt, ed. (Berkeley: University of California Press, 1988), pp. 231–63. First published in 7 Representations 26–58 (1984).
- Id., at 240.
- Id., at 253, 255.
- Katherine Eisaman Maus, “Facts of the Matter: Satiric and Ideal Economies in the Jonsonian Imagination,” Ben Jonson's First Folio, Jennifer Brady and W. H. Herendeen, ed. (Newark: University of Delaware Press, 1991), pp. 64–89. First published in 19 English Literary Renaissance 42–64 (1989).
- The text used is that of The Complete Poems, George Parfitt, ed. (New Haven: Yale University Press, 1982), pp. 200–201.
- On the relation between Jonson's poetic practice and his corporeal substance, see Joseph Lowenstein, “The Jonsonian Corpulence, or the Poet as Mouthpiece,” 53 ELH 491 (1986); Bruce Thomas Boehrer, “Renaissance Overeating: The Sad Case of Ben Jonson,” 105 PMLA 1071 (1990).
- Jonson's 1:3 ratio of weight to value appears to be consistent with the coinage practices of the period. In The Tudor Coinage (Manchester: Manchester University Press, 1978), C.E. Challis records that in 1603, 63,890 pounds of sterling silver coins were minted with a face value of 198,059 pounds (Appendix II, 306), for a ratio of 3.1 pounds value per pound of coin. Before the great debasement of the 1540's, the ratio had been closer 1:2; see J.D. Gould, The Great Debasement: Currency and the Economy in Mid-Tudor England (Oxford: Oxford University Press, 1970). The traditional sterling degree of fineness (11 oz. 2 dwt.) was restored in 1551 and maintained, with slight fluctuations, through the death of Elizabeth. See also J. Geoffrey Dent, “The Pound Weight and the Pound Sterling: The Relationship Between Weight and Coinage and its Consequences,” 27 Folk Life: Journal of Ethnological Studies 80 (1989).
- I owe my interest in the preposterous to Joel Altman, “‘Preposterous Conclusions’: Eros, Enargeia, and the Composition of Othello,” 18 Representations 129 (1987); Patricia Parker, Literary Fat Ladies: Rhetoric, Gender and Property (London: Methuen, 1987). See also Parker, “Preposterous Events,” 43 Shakespeare Quarterly 186 (1992).
- The primary sources of information about Slade v. Morley are Coke's report of the case, 4 Reports 91a–95b in English Reports (Edinburgh: William Green & Sons, 1907), vol. 76; and the additional reports excerpted and discussed in J.H. Baker, “New Light on Slade's Case,” 29.1 Cambridge Law Journal 51–67 (pt. 1), (April 1971); 29.2 213–36 (pt. 2) (November 1971). See also Simpson, History of the Common Law of Contract, 292–302; Simpson, “The Place of Slade's Case in the History of Contract,” 74 Law Quarterly Review 381–96 (July 1958); H. K. Lucke, “Slade's Case and the Origin of the Common Counts,” 81 Law Quarterly Review 442–45 (pt. 1) (July 1965); 81, 539–61 (pt. 2) (October 1965); 82, 81–93 (pt. 3) (January 1966).
- T.F.T. Plucknett, c 5th ed. (Boston: Little, 1956), pp. 644–45.
- Parker, “Preposterous,” supra note 20 at pt. 2, p. 215.
- Coke 4 Reports 94a–94b.
- Simpson, supra note 20.
- Charles Spinosa, “The Transformation of Intentionality: Debt and Contract in The Merchant of Venice,” 5 Cardozo Studies in Law and Literature 65 (Spring 1993). I thank Spinosa for making a copy of his essay available prior to its publication.
- Coke, 4 Reports 91a-b.
- David Aers, “Reflections on Current Histories of the Subject,” 2:2 Literature and History set. 2 20–34 (Autumn 1991).
- I argue this thesis in relation to early modern homicide law in “Hamlet, Hales v. Petit, and the Hysteresis of Action,” 60 ELH 17–55 (1993).
- See Spinosa, supra note 25. A related move can be detected in the developments of homicide law. See Thomas Glyn Watkin, “Hamlet and the Law of Homicide,” 100 Law Quarterly Review 282–310 (April 1984).
- Parker, Literary, supra note 20 at pt. 1, p. 60.
- Bacon's sensitivity to the temporal dimension of contract is reflected in his admission that where a contract is “distracted and divided” an action on the case may lie (Id., at pt. 1, p. 62). He appends this exception to his list of “collateral circumstances” which would support an action on the case independently of debt. These exceptions include a specified place of delivery, but not as a rule a specified time, so that it seems a little odd that he does except the “distracted and divided” contract. I suggest that it is because such cases problematize the atemporality attributed to contracts plead as debt sur contract. True, Bacon is attempting to rationalize cases where assumpsit has been allowed instead of debt, and he needs to account for cases like these. On the other hand one could also say that “distracted and divided contracts managed to get accepted as actions on the case because they presented this feature.
- Id. at pt. 2, p. 226n.
- Simpson, supra note 20 at 301–2.
- Id., at 304–5, where Simpson corrects his earlier assumption (in “The Place of Slade's Case in the History of Contract”) that Slade's Case involved an indebitatus assumpsit plea. The advantage of indebitatus assumpsit for the plaintiff was that, because the basis of liability was the subsequent promise and not the indebtedness itself, he need not allege any specifics as to the indebtedness itself; for the same reason it was somewhat unfair to the defendant Id., at 305). But indebitatus assumpsit could only be plead in lieu of debt; other actions of assumpsit (breach of promise to deliver a thing sold, or to marry, etc.), as well as some assumpsits in lieu of debt, were plead specially, i.e., the full circumstances of the indebtedness were set forth. These were therefore called actions of special assumpsit id. at 306–7). See also Lucke, supra note 20 at pt. 2 pp. 548–61 and pt. 3, passim.
- On equity in legal and theatrical performance see Luke Wilson, “Hamlet Equity, Intention, Performance,” 24 Studies in the Literary Imagination 91 (Fall 1991).
- For a discussion of the shift from deontic or intentional futurity to epistemic futurity in the use of “will” and “shall” during the medieval period, see Leslie K. Arnovick, The Development of Future Constructions in English: The Pragmatics of Modal and Temporal Will and Shall in Middle English (New York: Peter Lang, 1990), esp. pp. 91–103.
- Quotations from The Alchemist are from the Penguin edition, Michael Jamieson, ed., Ben Jonson: Three Comedies (Harmondsworth: Penguin, 1966).
- The same claim might be made for the much more prominent use of alchemical language in the play as a rhetorical instrument of social interaction and self-construction and -transformation.
- Quotations from Bartholomew Fair are from the Yale edition, Eugene M. Waith, ed. (New Haven: Yale University Press, 1963).
- Wayne, supra note 1 at 115.
- On the figure of the “centered self in Jonson, see Thomas M. Greene, “Ben Jonson and the Centered Self,” 10 Studies in English Literature 325–48 (1970).
- Richard A. Burt, “‘Licensed By Authority’: Ben Jonson and the Politics of Early Stuart Theater,” 54 ELH 539–40 (1987).
- For the performance at court, on the other hand, Jonson omitted the Induction and substituted for it a prologue and epilogue addressed to the king. To presume to bargain with the King, to offer him a coercive contract, would seem to be intolerable, even in jest. Contracting with the King had been attempted, unsuccessfully, as we have seen, in 1610, and it would not do to appear to parody the Great Contract, the failure of which had not made either side look especially good, in the royal presence.
- John Seiden, Table Talk (London: Gibbings, 1897), p. 41.
- In some sense the common law had always understood this. Thus in Bromage v. Genning (1616) Coke objected to the legal enforcement of specific performance on the grounds that in entering into an agreement one of one's options was to opt for paying damages rather than performing. To the plaintiff s remark that Chancery routinely provided specific relief it was retorted that
- Without a doubt it ought not to do so, for then to what purpose is the action on the case and covenant; and COKE said that this would subvert the intent of the covenantor, since he [the defendant] intended to have his election to pay damages or to pay the lease, and they would compel him to make the lease against his will; and so it is if a man binds himself in an obligation to enfeoff another, he cannot be compelled to make the enfeoffment. (1 Rolle 368 in English Reports).
- In this scheme, the intention to have a choice supplants the intention to enter into a legally binding obligation. The reversibility this way of thinking forecloses is compensated for by the way in which performance itself becomes liquid, measurable quite precisely in terms of the money it is worth. All this is predicated, it is important to notice, on the notion that there are no moral imperatives to make good one's promises, only strategic ones; and if you find that not doing so is a more profitable course of action, it is your right to perform or pay damages, at your preference. The intervention of the law is an opportunity rather than an inconvenience; the intention behind a promise implies—one might even say “imports”—an intention not to perform at one's election.
Law & Literature
Volume 5, 1993 - Issue 2