Political Theologies in Shakespeare's England: The Sacred and the State in 'Measure for Measure'

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Political Theologies in Shakespeare’s England The Sacred and the State in Measure for Measure

Debora Kuller Shuger

Political Theologies in Shakespeare’s England

Also by Debora Kuller Shuger HABITS OF THOUGHT IN THE ENGLISH RENAISSANCE: Religion, Politics, and the Dominant Culture RELIGION AND CULTURE IN RENAISSANCE ENGLAND (co-edited with Claire McEachern) THE RENAISSANCE BIBLE: Scholarship, Subjectivity, and Sacrifice SACRED RHETORIC: The Christian Grand Style in the English Renaissance

Political Theologies in Shakespeare’s England The Sacred and the State in Measure for Measure Debora Kuller Shuger Professor of English UCLA Los Angeles California

© Debora Kuller Shuger 2001 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No paragraph of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1T 4LP. Any person who does any unauthorised act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted her right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2001 by PALGRAVE Houndmills, Basingstoke, Hampshire RG21 6XS and 175 Fifth Avenue, New York, N. Y. 10010 Companies and representatives throughout the world PALGRAVE is the new global academic imprint of St. Martin’s Press LLC Scholarly and Reference Division and Palgrave Publishers Ltd (formerly Macmillan Press Ltd). ISBN 0–333–96500–0 hardback ISBN 0–333–96501–9 paperback This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. A catalogue record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Shuger, Debora Kuller. Political theologies in Shakespeare’s England : the sacred and the state in Measure for measure / Debora Kuller Shuger. p. cm. Includes bibliographical references and index. ISBN 0–333–96500–0 (cloth) — ISBN 0–333–96501–9 (paper) 1. Shakespeare, William, 1564–1616. Measure for measure. 2. Shakespeare, William, 1564–1616—Political and social views. 3. Religion and politics—Great Britain—History—17th century. 4. Religion and politics—Great Britain—History—16th century. 5. Political science—Great Britain—History—17th century. 6. Political science—Great Britain—History—16th century. 7. Whetstone, George, 1544?–1587? Promos and Cassandra. 8. Shakespeare, William, 1564–1616—Theology. 9. Christianity and politics. 10 Religion and politics. I. Title. PR2824 .S54 2001 822.3’3—dc21 2001032133 10 9 8 7 6 5 4 3 2 1 10 09 08 07 06 05 04 03 02 01 Printed in Great Britain by Antony Rowe Ltd, Chippenham, Wiltshire

Bei der Vergleichung überzeugte ich mich, daß das historisch Überlieferte selbst schöner und jedenfalls interessanter sei, als die romantische Fiction Leopold von Ranke

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Contents Acknowledgements

ix

Introduction Two notes on method

1 6

1. The Rebel Codpiece and the State The rule of law Ancient political thought and the Laws The Athenian Stranger and the English Reformation Sexual regulation The wages of sin Excursus

9 13 17 21 24 30 36

2. Political Theology Sacral loci Sacred kingship The godly prince and the pirate king

39 43 54 62

3. The Throne of God: Absolutism, Equity, and Christian Justice Absolute power Absolute justice The theater of equity

72 78 82 93

4 The King of Souls The spiritual jurisdiction of the state Puritans, penance, and ecclesiastical polity The soul of the condemned The politics of mercy Christ’s other kingdom: political theology in Africa

102 110 117 126 131 134

Notes

141

Bibliography

177

Index

189

vii

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Acknowledgements I began this book in 1997, having received a fellowship from the National Endowment for the Humanities to work on a quite different project, and I am finishing it now, three years later, as a fellow at the Wissenschaftskolleg zu Berlin. For the generosity of both these institutions, I am deeply grateful. Holly Crawford, Stephen Greenblatt, Carol Kaske, Jeff Knapp, Rich McCoy, Peter Miller, and Karen Orren read drafts of the entire manuscript and responded with wonderful questions, compliments and criticisms. Before that, Rob Watson, having struggled through 50 pages of single-spaced free association, helped me see how this promiscuous collection of saplings might become a proper forest. Friends and colleagues have time and again provided crucial information and thoughtful commentary. I would especially like to thank Al Braunmuller, Reg Foakes, David Halperin, Andy Kelley, Peter Lake, Claire McEachern, Vince Pecora, Jonathan Post, Mike Schoenfeldt, and, above all, David Schalkwyk of the University at Cape Town, who, over dinner one rainy night in Cleveland, told me about South Africa’s Truth and Reconciliation Commission. My research assistant, Lisa Itagaki, subsequently provided invaluable help with material on the Commission. I am likewise grateful to Anne Meyers for her splendid assistance in repairing defective footnotes and bibliographic lacunae. For my family, my deepest thanks: for my husband and daughter, who have been unfailing companions and comforters, and for my father, Alan Kuller, whose knowledge of the law and its history has enlightened my own darkness more than once.

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Introduction The earliest recorded performance of Measure for Measure took place at Whitehall on 26 December, 1604, opening the first full-scale Christmas revels of the new king’s reign.1 The play must have been composed shortly before this performance, since it alludes to events that had occurred as recently as the beginning of December.2 Shakespeare may well have written Measure for Measure for this at once sacred and state occasion.3 The political theme dominates from the outset, its importance signalled by the opening line of the Duke’s first speech: ‘Of government the properties to unfold.’4 Measure for Measure is the only Shakespeare play to begin with this sort of overt thematic statement; it is also the only one to have an (equally thematic) biblical title5 – a yoking of government and Gospel recalling the king’s promise in the medieval English coronation oath to observe both ‘justice and mercy . . . that by his merciful dealing with others, the God of mercy may take commiseration upon him.’6 Measure for Measure’s unusual opening, with its braiding of rule and religion, sets up what follows, for the play, as I will show, is a sustained meditation on its own political moment – the political moment of James’s accession,7 but also, and more significantly, of the Reformation’s aftermath. Moreover, because the play is a meditation on its political moment, it offers itself as guide and witness to that moment. Since my argument presupposes this claim, it is worth dwelling on a little longer. The book does not present a reading of Measure for Measure in the ordinary sense; it says virtually nothing about imagery, irony, or characterization; some chapters, particularly the first, do not mention the play for considerable stretches. The book is not about Measure for Measure, but rather uses the play (together with its primary source, George Whetstone’s Promos and Cassandra) as a basis for rethinking English politics and political thought circa 1600. I became interested in the play precisely because it raised various questions of a broadly political nature: Why does Shakespeare associate Puritanism with sexual regulation? Jonson’s Puritans are obsessed with roast pig and encroaching popery but not with punishing (nor, for that matter, obtaining) illicit sex. Why would a play specifically about secular government focus on this? Or, granted that the Duke’s friar robes are a plot device allowing him to prowl through Vienna undetected, why does he take on the 1

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Political Theologies in Shakespeare’s England

role of confessor, spending a good deal of on-stage time attempting to prepare his subjects for death? He does not perform any other sacerdotal office. He does not offer to marry Claudio and Juliet or celebrate Mass for the prisoners. Why is the state, figured by its ruler, associated with the sacrament of penance?8 The play directed attention to these issues, and raised the possibility that they had political significance. Nor was it only these. The work said, as it were, ‘I am about equity, justice, pardons, about sexual regulation, sacral kingship, the enforcement of good faith promises, about what to do with unrepentant felons and discarded whores, the inseparability of private morals from public justice, and, above all, about the relation of the sacred to the state. These are political issues. Forget Parliament. Forget classical republicanism. Only look for yourself, and you shall find that all is as I have spoken.’ When I tried to follow this directive – when I looked at sixteenth-century English writings on the state, crown, courts, church, on religion, law, and polity – I found what the play hinted I would find. What it said was politically significant, was. The Puritan demand for sexual regulation was linked to a specific political theory, the state’s spiritual jurisdiction did have a penitential character, and so forth. This book emerged from my sense that every line of inquiry Measure for Measure suggested panned out. The lines of inquiry led in various directions – from Plato’s late dialogues to sixteenth-century Chancery procedure – but again and again the material that turned up was sufficiently complex and central to suggest that the play was not simply alluding to this or that recent event, but mapping the deep structure of English politics c. 1600: in particular, the binary structure of ideas and practices defining two opposed visions of Christian polity. The play is about the nature of Christian rule. As this implies, Measure for Measure construes the deep structure of Tudor-Stuart politics in radically different terms from those found in more recent histories of the period, not only because the latter know about the constitutional struggles to come, but also because they define the political in a way that excludes the religious ideals that unfold at the dead center of early modern thinking on government and its properties.9 It is the ideals that are excluded more than religion per se. Machiavelli’s contempt for political thinkers who pay more attention to what should be than to what is still has teeth, as does his conviction that what is, rather than being the imperfect realization of what should be, bears no relation to it – except that of bleak truth to sentimental pretense.10 And yet Machiavelli’s greatest work, The Discourses,

Introduction

3

is itself from beginning to end an attempt to delineate what a republic should be. (That Machiavelli’s ideal horrified a good many does not make it any less an ideal.) Nor is Machiavelli, at least in this respect, atypical. Early modern political discourse endeavors to describe what something – a commonwealth, a ruler, an institution – should be. Its premises are those of Aristotelian teleology, which identifies a thing’s nature with its end and perfection, so that to ask what, for example, a republic is and to ask what a republic should be turns out to be the same question. It is Machiavelli’s question. Virtually all Tudor-Stuart political writings are idealizing – as opposed to descriptive (how a specific thing behaves) or theoretical (how a class of things behave): More’s Utopia, Milton’s Ready and Easy Way, Harrington’s Oceana, Starkey’s Dialogue between Pole and Lupset, King James’s Basilicon Doron, Baxter’s Holy Commonwealth, Fuller’s Holy State, Bacon’s New Atlantis, Floyd’s Picture of a Perfect Commonwealth, Marsilius’s Defensor Pacis (not a Tudor–Stuart work but Englished by order of Henry VIII), Hooker’s Laws of Ecclesiastical Polity, Erasmus’s Education of a Christian Prince. Even ostensibly descriptive works such as Smith’s De republica Anglorum, Lambarde’s Archeion, and Coke’s Institutes betray the shaping presence of a normative vision throughout. Early modern political writings are profoundly and pervasively concerned with what should be because, to a very great extent, the political divisions of the age centered on conflicting ideals (in contrast, for example, to the political conflicts of the fifteenth century). The Reformation shattered whatever consensus there had been – probably a quite strong one – over what a Christian life, a Christian church, and a Christian kingdom looked like. In Peter Lake’s words, ‘relations between the holy and the social were on the move,’ as were those between the holy and the state, and people disagreed profoundly about whither these movements should tend.11 The articulation of what should be characterizes post-Reformation political discourse precisely because that was the issue. The book’s argument is thus historical, probably even historicist. In thinking about Measure for Measure, what interested me was the unfamiliar material, the alterity of the past. This is what has always interested me – as opposed to the sort of political criticism that reworks the past into a polemical prefiguration of current debates, and whose gilding of erudition never quite manages to hide the soapbox. I did not want to write political allegory. But at the same time that I was studying Puritan efforts to criminalize sexual sins and the consequences of injecting religion into politics, Linda Tripp was

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Political Theologies in Shakespeare’s England

taping Monica Lewinsky. In the book that was finally written, I do try very hard to respect the past’s alterity, but at some point the distance between the past and present began to seem not all that great, at least not invariably. If the past could be profoundly strange, it was also, at times, very like; and it was in this play of difference and similarity that both present and past came into focus, as studying a chimpanzee sheds light not only on primate but also on human nature. This analogy may create more problems than it is worth; I do not wish to imply that history ‘evolves,’ but simply to explain that I did not start by looking for prototypes of the modern but rather the opposite – I started by looking at theories and practices that struck me as deader than doornails – and then found that the issues I was trying to understand, issues central to both Shakespeare’s play and early modern political thought, were also to be found in the magazines stacked on the coffee table, and, moreover, that contemporary events shed light on historical materials, the historical on the contemporary. This need not have occurred; at least I cannot see any reason to claim that historical inquiry invariably leads to the discovery of the present in the mirror of the past. That it did so in this instance was partly adventitious: the fact that my work on Measure for Measure coincided with a near-fatal political collision between the rule of law and sexual unruliness. Yet I suspect it was also partly the result of real historical continuities. Historical scholarship attempts a dialogue with the dead, but the dead in this case were English-speaking Protestants, as are still a number of the living; and the Protestant Left of Tudor–Stuart England has discernible affinities to the Protestant Right of contemporary America. This is probably obvious, but for those who grew up on Panofsky’s account of modernity as the emergence of historical consciousness and hence of one’s own estrangement from past, and who have read their Geertz and Foucault, such continuity feels vaguely embarrassing. Tudor–Stuart England is supposed to be the world we have lost. And, of course, in some respects it seems profoundly remote; I have 30-second bursts during which sacral monarchy makes sense, but that is about it. Yet in the middle of working on this project, I was surprised by relevance, which I found passing strange, but in the end decided to welcome as a stranger. And so I have written a book about political theology in post-Reformation England that pertains to the convulsive events and issues of its own historical moment: the rule of law, the right to privacy, the bearing a ruler’s private misconduct has on his public authority, the evangelical politics of sexual regulation

Introduction

5

and compulsory virtue, and, oddly enough, the end of apartheid in South Africa. One purpose of an introduction is to forestall confusion by explaining one’s aims and methods. I do not wish to spend too much time defending my approach: if it works, it will not need a defense; if it does not, paving the road to nonsense with good justifications will not help. Yet I am worried that my reading (or non-reading) of Measure for Measure will seem unaccountable, so perhaps a few words are in order. Literary scholars, by training, seek what is not obvious – a pursuit that binds the ironies and complexities of New Criticism to the meta-subversions and destabilizations of poststructuralism. One learns to pay attention to nuances, silences, and ambiguities; to read between the lines and against the grain. I have, however, taken the opposite tack here, adopting a hermeneutic not all that different from the Erasmianism position of William Chillingworth’s wonderful and much neglected Religion of Protestants (1638) that ‘those truths will be fundamental, which are evidently delivered . . . those not fundamental, which are obscure.’12 That Chillingworth is, of course, writing about Scripture does not affect his general point that texts do not usually omit, conceal, or make ambiguous the important stuff – a claim that seems, if anything, most plausible with respect to the theater, where meanings must be apprehensible at first blush. So, for example, had Shakespeare thought it important for the audience to realize that, in disguising himself as a friar, the Duke had done something wildly improper, the play would have raised the possibility; the Duke speaks several times with real friars, one of whom could have raised an eyebrow. The fact that no one objects to the Duke’s stratagem or even suggests that there could be an objection means that the issue does not, in this play, matter. The same holds for the ethics of the bed-trick and, I think, for Isabella’s response to the Duke’s offer of marriage; had her response been crucial, it would have been scripted.13 Conversely, that Measure for Measure keeps coming back to the relation of private morals to public authority locates this at or near the center of what the play is about. I have adopted this hermeneutic as a tactic not a theory; a hermeneutic is an approach, and whether or not an approach is right depends on where one is trying to go. In the chapters that follow, I use Measure for Measure, like Dante’s Vergil, to find my way round an unfamiliar political landscape. As Aristotle notes in the opening sentence of the Posterior Analytics (a sentence that does not translate very well),

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‘all teaching and all intellecual learning come about from already existing knowledge’; one learns, that is, by moving from the known to the unknown. To use the silences and opacities of Measure for Measure as a starting point for an inquiry into this political landscape would therefore be a fool’s task; an argument cannot illuminate one obscurity by means of another. For this project to work, I thus need to confine my attention to what the play makes clear, explicit, and overt, since only what is itself evident can serve as evidence of something else. Hence, because I am using the play as evidence of something else, I have nothing to say about whether Isabella accepts the Duke; the latter’s true motive for temporarily ceding authority to Angelo; or why the scoundrel Lucio, whose insoucient lie nearly destroys both Isabella and Mariana, is given the exquisite lines about the ‘blossoming time/ That from the seedness the bare fallow brings/ To teeming foison’ (I. iv. 41–3). What interests me is the obvious: that the Duke cares about his subjects’ readiness to die; that he forces Angelo and Lucio to marry the women they have wronged; that Angelo defends the strict, uniform enforcement of the law; that the law in question makes pre-marital sex a capital offense. If Chillingworth is right, these are ‘fundamental’ to the play’s meaning, to its truth, their importance signalled by their clarity. Whether Chillingworth is right, of course, remains to be seen. It will be the burden of the ensuing chapters to show that the result of attending to the obvious is to make the play more, not less, interesting and significant.

Two notes on method How long is an historical moment? The narrator of Paradise Lost at one point remarks how ‘of late / Columbus found th’American . . . girt / With feather’d Cincture’ (9.1115–17). ‘Of late,’ in this instance, refers back 175 years. In another context, it could as easily designate the past six months. Historical moments are flexible units. My own sense of the present begins with the Second World War, which ended before I was born; and there was on the night-table in my parents’ bedroom a two-volume boxed set entitled Modern European History, which began with the fall of Rome in 476. The tight synchronic focus typical of both cultural studies and New Historicism – and, more generally, the widespread tendency to restrict a work’s political import to a critique of, or simply allusion to, current events – is problematic because people do not understand their own life or their own world as a

Introduction

7

sequence of disconnected freeze-frames. Human beings inhabit what St Augustine calls ‘a present time of present things’ – the emergent occasions of the news cycle – but they also inhabit ‘a present time of past things’; which is to say not only that people remember things past, but that they ‘recall’ them into the present time.14 Memory and apprehension are not discrete activities. So, to adapt Augustine’s famous example, in reading a poem, one construes the line that is presently under one’s gaze by recalling the preceding lines – not every line one has ever read, not necessarily every antecedent line in the poem, but the relevant proximate lines. People think with their memories. We grasp the meaning of present things in terms of a relevant proximate-past: the death of John Kennedy, Jr. in terms of his father’s death 36 years ago; the US intervention in Kosovo in terms of the Munich Pact – or the Gulf of Tonkin Resolution. As this last example suggests, the meaning of present things depends profoundly on what one identifies as the relevant proximate-past. This relevant proximate-past is what I have been calling an historical moment. My point is, first, that the political content of Measure for Measure has a greater sweep and scope than the events of 1603–4, that the play reflects on an historical moment that goes back fairly deep into Elizabeth’s reign and, more hazily, to the early Tudor prerogative courts and Protestant state. I am also trying to make the more general argument that focusing historical inquiry on the present time of present things often yields, not a thick description of the actual, but its distortion. To study the United States’ involvement in Kosovo looking solely at Washington politics in 1998–9 (the impeachment of President Clinton, the ensuing collapse of bipartisanship, etc.), without taking into account the present time of past things (the Holocaust and Vietnam, above all) would leave out, no matter how detailed its picture of factional maneuvering, crucial factors in the stands that got taken and the decisions that got made. Yet if Shakespeare’s sense of the forces and factors shaping the English political realm in 1604 engages a fairly long historical moment, it could not engage what had not yet occurred. The future, even the near future, is unknowable, as can easily be seen by comparing the predictions offered by television pundits with what actually happens. That Measure for Measure cannot reflect on the course and crises of early Stuart history is obvious, but also easy to lose sight of since literary scholars tend to borrow their history from historians, and historians allow themselves the wisdom of hindsight, reading events in terms of what they subsequently led to. Yet literary historicism amounts to more than lit. crit.

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spruced up with second-hand historical learning because literary scholars study texts, which read the significance of their present time by the light of past things, whereas historians deal primarily with events, whose significance only becomes legible in the light of things to come. Or to put it another way, what interests the historian is the fact that the bear went over first this mountain, then that mountain, then the next mountain; but it is the literary scholar who asks at each refrain, ‘And what do you think he saw?’ I have therefore tried to keep our knowledge of seventeenth-century politics from seeping into the analysis of either Measure for Measure or the political moment toward which the play directs our attention. Yet, while 1604 marks the terminus ad quem, it turned out to be both impossible and undesirable to make this an absolute cut-off date. Some of the most valuable texts I came across were not published until after 1604, although written earlier; since this is not a study of Shakespeare’s sources, I have used these without compunction. On occasion, examples of whatever it was I was looking for turned up both before and after 1604, in which case I felt free to cite the later material either for some particularly evocative turn of phrase or just to provide additional evidence.15 My spell-checker made me do it Half-way through winter term a few years ago, a graduate student, who was taking a Spenser seminar with another professor, came to my office to request help decoding a mysterious word that kept cropping up in The Fairy Queen. I asked what the word was, and he replied with something that sounded like ‘louie’ or ‘louis’ (as in Louis XIV). Having not a clue, I asked him to spell it. He responded ‘l-o-u-e.’ In Elizabethan English, ‘u’ and ‘v’ are the same letter. The word that confused him for five weeks was ‘love.’ I near-fainted. For all the arguments in favor of preserving the original spelling, accidentals, and punctuation, the truth is that most people cannot read unmodernized texts – a truth that editions of Shakespeare, even the most scholarly, recognize. I have therefore silently modernized all quotations, including those cited from secondary sources, except when to do so would spoil the poetry.

1 The Rebel Codpiece and the State

It seems odd that neither the Duke nor Escalus nor Isabella nor even Claudio thinks to point out that the ‘hideous law’ (I. iv. 63) punishing fornication with death is appalling. They question Angelo’s rigid enforcement, but it does not seem obvious to them that the statute violates fundamental moral rights. The play, clearly, does not endorse the law – in the end, the Duke simply ignores it – but only Vienna’s pimps and johns find the whole business of sexual regulation absurd. We, of course, also have trouble viewing ‘the rebellion of a codpiece’ (III. ii. 100–1) as seriously problematic, which is one reason why Measure for Measure is, for us, a problem comedy: the play wrestles with a law that seems basically fruitloops. Criticism has made some historical sense of this by noting that ‘extreme English Puritans’ advocated the death penalty for fornication.1 Yet this fact merely shifts the difficulty from the dramatic to the cultural arena, since it does not explain why the Protestant Left saw the elaborate regulation of sexual behavior as a deeply good thing, why they supported laws only slightly less draconian than the one Angelo tries to enforce. Is it simply that Puritans were (at least regarding sex) fruitloops? Why did they place so much weight on regulating sexual behavior? (And why, for that matter, does evangelical Christianity still seem obsessed with such regulation?) Medieval theologians did not favor extramarital intercourse, but penance was imposed for such transgressions, not the death penalty. The Gospels have little to say on the particulars of sexual conduct (except divorce); the Old Testament makes adultery a capital offense, but Christ protects the woman caught in flagrante from being stoned and speaks to her with remarkable gentleness. While the scriptural passages dealing with sex are scarcely ‘liberal’ – they were written in cultures to which the term is 9

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inapplicable – the sum total of them would probably not fill two pages.2 The Bible did not supply Puritanism with its emphasis on sexual regulation. Puritans were not the only Tudor-Stuart advocates of sexual regulation – an important qualification and one to which I will return at the end of this chapter. Recent scholarship has, in fact, tended to emphasize the ‘continuous spectrum of Protestant opinion,’ and thus to regard Puritanism as an intensification of shared cultural norms rather than a distinctive, often oppositional, stance.3 Yet this seems misleading. Intensifying some norms (usually at the expense of others) changes a cultural system in quite fundamental ways. What distinguished Puritanism was, above all, an increased stress on discipline. The 1572 Admonition to Parliament, ‘the first open manifesto of the puritan party,’ thus hinges on making discipline, defined as the ‘admonition and correction of faults severely,’ an essential mark of a true church.4 Both the presbyterian system of ecclesiastical discipline set forth in the Admonition and the more generic disciplinary agenda of late Elizabethan Puritanism targeted personal immorality: swearing, gaming, dancing, alehouse-haunting, play-going, Sabbath-breaking, sexual misconduct.5 From the earliest years of Elizabeth’s reign those who argued for making adultery a felony were almost all Puritans: Thomas Cartwright, William Ames, John Downame, Thomas Gataker, Sir Henry Finch, William Prynne, John Cotton.6 The Tudor church courts punished sexual misconduct by the wearing of a white sheet during the Sunday service for three consecutive weeks; however, in 1579, Bury St Edmunds’ local magistrates, bypassing the church courts, drew up a civil code that punished the same offense with ‘thirty stripes well laid on till the blood come.’ No Elizabethan, I suspect, would have been surprised to learn that Bury during those years was a fiercely Puritan town: A Genevan form of worship was used . . . . Unsatisfactory curates were dismissed by congregational vote. In all this activity the Puritan faction had the enthusiastic support of the local justices of the peace. . . The Puritan magistrates forced one of the [Anglican clergymen] . . . to leave the town and told another he could not serve if he intended observing the established order [of the Book of Common Prayer].7 Although recent revisionist scholarship has called attention to efforts to regulate personal morals that have nothing to do with Puritanism,

The Rebel Codpiece and the State

11

it has nevertheless tended to confirm the traditional view that Puritans were marked by ‘a distinctive preciseness or scrupulosity about their own and other people’s moral conduct,’ a determination ‘to impose godly behavior upon all residents,’ and a ‘willingness to use physical punishment . . . to enforce proper conduct.’8 This emphasis marks English Puritanism from the beginning. It is already there in Martin Bucer’s De regno Christi, written in 1550, the year after Bucer left Strasbourg to become Regius Professor of Divinity at Cambridge, as a New Year’s gift for Edward VI. De regno Christi lays out both the earliest and fullest exposition of what would become the Puritan social programme for the next 75 years.9 The Puritan hallmarks are all present: Sabbatarianism, reformation of manners, work ethic, English ‘Rezeption’ of the Mosaic penal code, and capital punishment for adultery and ‘rape,’ which for Bucer includes consensual clandestine marriage. Bucer’s text – his understanding of what Christ’s kingdom would be like – is, for our purposes, crucial for two reasons. First, because, unlike the popular Puritan tracts of the Elizabethan period which focus in on specific ills, Bucer articulates the visionary telos that motivates and justifies the Protestant Left’s demand for ‘strict statutes and most biting laws.’10 Moreover, Bucer discloses where this vision of the good society comes from. As even a cursory glance through the footnotes to De regno makes evident, the specific proposals that make up its second half are heavily indebted to Plato: sometimes to the Republic and Statesman but principally the Laws.11 And this last and longest of the Platonic dialogues is, to the best of my knowledge, the first text in the intellectual history of the West to restrict permissible sex to married, reproductive intercourse – and to make this sort of sexual regulation one of the state’s primary tasks. I doubt that the Laws was ever a well-known text, but as the acknowledged pattern for such works as Cicero’s De legibus and Bucer’s De regno, its significance (like, let us say, that of Das Kapital) vastly exceeds its readership. It is an amazing text. The crucial move comes right at the beginning. The Athenian Stranger, a Cretan, and a Spartan having met on the way to the Temple of Zeus on Mount Ida, the three propose to discuss the nature of government and law.12 The Cretan and Spartan interlocutors, beginning from the Hobbesian premise that ‘every State is, by a law of nature, engaged perpetually in an informal war with every other State’ (626a), defend the institutions of their warrior societies, in particular, their ‘severe training in hardihood . . .

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[and] endurance of pain’ (633bc). In reply, the Athenian Stranger (who in the late Platonic dialogues replaces Socrates as principal speaker), observing that such laws train citizens to battle only ‘against fears and pains,’ introduces the crucial question: whether it might not be equally important to teach men to resist ‘desires also and pleasures, with their dangerous enticements and flatteries, which melt men’s hearts like wax – even men most reverenced in their own conceit’ (633d-634b). (This is, of course, what happens to Angelo; we are already in the world of Measure for Measure.) Following this pivotal moment, the Laws goes on to construct, in considerable detail, a sociopolitical order based on the regulation of pleasures – alcoholic, aesthetic, but principally erotic. Plato’s treatment of sex thus presupposes the overarching thesis of the Laws and is inseparable from its vision of the nature and ends of the state. This vision hinges on the simple premise that the ‘one end to be kept in view in all our laws . . . is virtue’ (963a) and hence (the dialogue insists upon the antithesis) not pleasure. Virtue rather comes close to being what Aristotle means by temperance: the capacity to master one’s pleasures, to choose the good over the pleasant (635cd, 644b, 782e-783a). The regulation of pleasure, and therefore of sexuality, lies at the heart of the laws’ concern. At this point it seems important to slow down. The Laws’ emphasis on sexual regulation derives from its fundamental premises about the nature and ends of the state. Moreover, from Plato through to the midseventeenth century, the emphasis on sexual regulation follows from (and therefore will function as synecdoche for) these same basic commitments. Some sense of this theoretical ground is necessary to grasp why a not unimportant series of thinkers insisted upon the state’s obligation to discipline rebellious codpieces. I want therefore to begin by tracing the general outlines of what amounts to one of the major types of pre-Lockean political theory, focusing on the Laws and De regno Christi, but also glancing at some of the intervening texts that translated this vision of the state from Hellenic Athens to Tudor England – and then return (with, one hopes, more depth and clarity) to the issue of sexual regulation. Very little of this, of course, is spelled out in Measure for Measure; the play does not – does not attempt to – explicate the political premises and ideals behind the anti-fornication statute Angelo tries to enforce, or, for that matter, behind the Duke’s alternative justice. Yet I think a case can be made – and the next four chapters will lay out the evidence

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– that Angelo and the Duke represent crucially important strains in late Elizabethan political thought, both of which have a complex intellectual and institutional history, and both of which are nearly invisible, for reasons I shall suggest later, in current early modern scholarship. The resulting argument, if not quite circular, moves, inevitably with some awkwardness, in two directions: exploring certain political ideas in order to clarify the ideological stakes and implications of Measure for Measure but also using the play’s implicit debate as a clue, a starting point, for reimagining the history of early modern political thought.

The rule of law Plato does not view the law as primarily a body of rules or as a penal code, although his imaginary legal system includes both. His understanding of the law is more generous than that: for him, the laws set forth an ideal of individual and social excellence (770d, 822d-823d). They supply ‘all things that are good’ (631b): human goods like health and economic prosperity, but above all ‘the goods that are divine’ – wisdom, temperance, justice, and courage (631b-d). ‘True laws’ thus ‘effect the well-being of those who use them’ by ordering both individual and state ‘in obedience to the immortal element within us’ (631b, 713e-714a), by embodying, to the degree such embodiment is possible, the transcendent Idea in the institutions of the polis, for God and not man is ‘the measure of all things’ (716c).13 Like Homer’s golden chain, the laws span the distance between heaven and earth, allowing the eternal nous to enter and order human community. In linking a temporal society to ultimate goods, the laws also bind its members into a single body, ordering the community by rendering it ‘as unified as possible’ (739d). As this final remark suggests, it would be hard to exaggerate the radically anti-individualist organicism of this Platonic model. For Plato, a group’s shared conviction concerning the good – the conviction embodied in its laws, both written and unwritten – provides the supernatural band that alone can weave together diverse individuals into true community.14 Hence there can be no toleration for diversity of belief, nor, consequently, for diversity of expression; rather, the citizenry must be ‘unanimous in the praise and blame they bestow, rejoicing and grieving at the same things,’ ‘the whole of the community constantly . . . [using] exactly the same language, so far as possible, about these matters, alike in their songs, their tales, and their discourses’ (739cd, 664a).

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Ideological unanimity is necessary on pragmatic grounds, since only laws that are unquestioned will be unquestioningly obeyed – will be obeyed, that is, ‘willingly and without constraint’ (663de). The Athenian Stranger makes the point most clearly in the amazing passage that follows his assertion that girls, rather than being confined within the oikos, should participate in the ‘sacrifices, feasts, and choric song’ alongside their male counterparts. There is, he acknowledges, a fairly obvious problem with this scheme: namely, how to keep these ‘young people of both sexes living in affectionate intimacy’ from fornicating (835d).15 The Athenian addresses this difficulty by first noting that brothers and sisters, although living under the same roof, easily abstain from sexual contact simply because they have always been told that ‘such lusts are . . . unhallowed, abominations to God, deeds of black shame.’ This taboo, he suggests, could and should be extended: if children were taught from the cradle that all non-marital sex is an abomination, fornication would become as unthinkable as incest. Given that ‘common fame is indeed a wonderfully potent force,’ such verbal magic might well work, but only if it were truly ‘common fame,’ only if ‘no single soul dares entertain a sentiment contrary to the established usage’ (838cd). The laws’ ability to order both individual souls and the social body – their ability to discipline the ‘raging frenzy’ of instinct and appetite, which will escape through any loophole it can find and run amuck (783a) – depends on ideological consensus. There can be no loopholes.16 If consensus is an enforcement mechanism, it is a metaphysically grounded one, since the laws under discussion are not instruments of power but of the good, a good which the dialogue throughout treats as transcendent and collective: as participating in the divine rationality of the cosmos, as ensuring the harmony and happiness of the community. These are not, of course, two separate sources of value; rather, the good of the latter derives from the goodness of the former. The laws have virtue as their end precisely in this two-fold sense: that is, they embody, insofar as possible, that which is truly good, and therefore weave the strong and lovely fabric of a good society. On this schema, individuality is sheerly bad: the assertion of blind self-will, the revolt of ‘pleasures and lusts’ against the moral laws ordering cosmos and community (714a, 716a). Plato makes both the social and speculative implications of this organicism very clear indeed. In a passage that at first seems to concern military training but quickly takes on more general applicability, Plato (that is, the Athenian Stranger) memorably affirms that

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no man, and no woman, [should] be suffered to live without an officer set over them, and no soul of man to learn the trick of doing one single thing of its own sole motion, in play or in earnest, but, in peace as in war, ever to live with the commander in sight, to follow his leading, and take its motions from him to the least detail . . . in a word, to teach one’s soul the habit of never so much as thinking to do one single act apart from one’s fellows, of making life, to the very uttermost, an unbroken consort, society, and community of all with all. . . Anarchy – the absence of the commander – is what we should expel root and branch from the lives of all mankind. (942ad) It takes a moment to realize that Plato’s commander is, of course, the laws themselves. The passage does not advocate military dictatorship, but an all-encompassing civic legalism whose resemblance to the scriptural legalism of the Protestant Left is as evident as it is unexpected. Here, as throughout the dialogue, absolute and total obedience to the law both subordinates the individual to a superior authority but also makes possible fellowship’s ‘unbroken consort.’ The musical analogy seems helpful, since, although the political ideals here are so alien as to be nearly incomprehensible, we still accept that the members of an orchestra should obey their conductor, that such obedience enables the various instruments to play in consort, and that the musicians should subordinate their private wills and wishes – for example, to play the Eroica instead of the Pastorale, or in C rather than A flat – to the demands of collective performance. The second violinist does not have a right to follow his own drummer. So likewise, Plato’s deep conviction that totalities possess a reality and value greater than that of their parts renders any notion of individual rights vis-à-vis either polis or cosmos inconceivable;17 moral existence requires, above all else, turning from the pursuit of one’s own happiness in order to pursue the common good.18 Both the politics and theology of the Laws exfoliate from the belief, moving as well as terrible in its austere humility, that ‘the purpose of all that happens is . . . to win bliss for the life of the whole; it is not made for thee, but thou for it’ (903c). Yet precisely because individuals constitute parts of the whole, even the minutiae of their lives matter. They matter to the gods and to the state. Plato, that is, makes the quite extraordinary claim that the gods care about ‘minor details of the universe’; that they are ‘more, not less, careful for small things than for great’ (902a, 900c). One does not ordinarily associate this sort of high-resolution providentialism with the

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God of the philosophers, especially not pagan philosophers. It is, however, crucial to the Laws, since the fact that the gods superintend every aspect of human life grounds its demand that every aspect of human life be regulated by the state: as a god ‘has disposed all things with a view to the preservation and perfection of the whole, wherefore each several thing also, so far as may be, does and has done to it what is meet,’ so likewise ‘for each and all there are, in every case, governors appointed of all doing and being-done-to, down to the least detail’ (903b). The whole project of the Laws, with its stupefyingly detailed advice about everything from poetry to poultry, makes sense only on the assumption that the details matter profoundly in the big picture and the long run: this is why both gods and laws concern themselves with such seemingly trivial things. The Athenian Stranger thus argues that children’s games have a ‘decisive influence’ on the survival of a political community: not that it makes a vast difference whether the young play hopscotch or kickball, but that the games always be played the same way. If boys are allowed to change their pastimes, they will begin ‘to despise the old-fashioned and worship novelty,’ and therefore ‘inevitably grow to be men of a different stamp from the boys of an earlier time’; this change in their character will lead ‘to the quest for a different manner of life, and this to a craving for different institutions and laws’ (798c). The causal nexus linking cultural praxis, moral character, and political community leaves no room for adiaphora, for things indifferent. Games, toys, songs, paintings, amusements all fashion a people either ‘in the way of virtue or depravity’ (656c). Since the right or wrong ordering of such matters profoundly affects the community, the state has a vital interest in determining which practices are good and in enforcing that determination. This enforcement requires an elaborate network of public officials, whose combined jurisdiction covers virtually every aspect of private and public existence; Plato mentions (and this is by no means a comprehensive listing) temple-keepers, commanders, taxiarchs (in charge of foot soldiers, and not, alas, urban transit), hipparchs, phylarchs, prytaneis, city stewards, market stewards, land stewards, phrourarchs, education officers, competition-officers for gymnastic and music, women inspectors for keeping tabs on the sex life of married couples, examiners of both fiscal records and official probity, judges, the mysterious guardians or law-wardens who constitute the nocturnal council, et alia.19 The Laws devotes considerable space to outlining the complex selection procedures – which include prelimi-

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nary balloting, elections, the drawing of lots, and test-taking – by which these magistracies are to be allocated, as well as the various forms of surveillance each exercises over the general population and over subordinate officials. One frequently has the sense of witnessing the birth (or, more accurately, the conception) of civil service bureaucracy, emerging full-grown like Athena from the head of Zeus. Yet ‘bureaucracy’ is not quite the right term for this meritocratic officialdom, since for all Plato’s Weberian rationalization, a second and deeply unfamiliar model of authority comes into play at the origins and the apex of the state. Throughout the dialogue, the Athenian Stranger describes the lawgiver (nomothetes) as a sacral being: a ‘divine hero’ (630e), a ‘godlike man’ (657b), one in whom ‘human nature was blended with power divine’ (691e). Initially, this phraseology refers to the earliest lawgivers of Greece and Egypt, but in the final book of the Laws, Plato uses similar terms for the censors and guardians of his imaginary state; these highest magistrates must be ‘more-than-human’ (945c), those few who ‘amongst the mass of men . . . are divinely inspired’ (951b). This is not what we ordinarily mean by job qualifications. In the Laws (and, more generally, in Plato’s later dialogues), the allocation of power – of political power – presupposes a hierarchy of souls, ascending by gradual transitions from human to divine nature.20 The givers and guardians of the law are, quite literally, semi-divine beings. This political ontology harkens back to the ancient Greek notion of the hero as a ‘semideus, plus ab homine habens,’21 yet Plato’s identification of the ruling elite with a spiritual elect is anything but retrograde. As Eric Voegelin notes, the identification has a ‘Puritanic touch,’ Plato’s godlike magistrates foreshadowing Calvinism’s godly ones.22 The odd thing is that sacral rulers also flourish at the opposite end of the political spectrum: as King James memorably observed in the sonnet prefacing Basilicon Doron, ‘God gives not kings the style of gods in vain.’23 The godlike ruler remains central to political thought until the late seventeenth century – to the high royalists quite as much as the Puritans. Trying to make sense of this almost unremarked fact – to grasp its significance for early modern political theory as well as for Shakespeare’s Friar-Duke – will occupy at least some portion of the next chapter.

Ancient political thought and the Laws A good deal of classical political theory – far more than I had realized

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– resembles the Laws. Not, however, all of it. Not, most importantly, Aristotle’s Politics, which dismisses soul-hierarchies and sacral rulers out of hand;24 analyzes the state in wholly secular terms; focuses on constitutional form rather than legal substance – which is to say, on power rather than goodness; seems largely untroubled by individualism, diversity, and pleasure; displays almost no interest in regulating sexual conduct, devoting only one chapter (7.16) to the subject. The Politics deals with issues of class, economics, revolution, representation, social justice, and constitutional structure; unlike the Laws, that is, it treats what we think of as politics. As this implies, the dominant language of politics from antiquity on has been Aristotelian. Aristotle is, of course, the first and greatest republican theorist; almost all subsequent republican/constitutionalist thought – Livy, Polybius, Aquinas, Hooker, the Federalist Papers – operates with Aristotelian concepts and categories. In the secular republics of the modern West, there is no other language in which to do politics, which is why non-Aristotelian works such as Xenophon’s Cyropaedia, Augustine’s City of God, or Baxter’s Holy Commonwealth – to say nothing of Bucer’s Kingdom of Christ now seem odd to the point of unintelligibility. Yet Xenophon and Augustine would for centuries have been accounted major political writers; Bucer and Baxter were, in their own day, names to conjure with. They do not, however, often figure in modern histories of political thought: not in the Whig narratives of constitutional republicanism’s gradual ascendency; not in the Marxist narratives of its radical origins. The Laws, and the tradition deriving from it, present special difficulty, since the whole project, from arche to telos, seems repellent to us; it was this dialogue, one recalls, that provided Popper’s model for the closed (that is, totalitarian) society. We do not, I think – at least I do not – find it easily credible that the Laws has a tradition deriving from it; it seems insufficiently appealing. One of the reasons I began this chapter is simply that I kept running across – when I was looking for no such thing – evidence of its appeal. A Classicist would tell this story differently, but since I am interested in getting from Plato to Bucer – and thence, eventually, to Shakespeare – with as few digressions as possible, I will mention only the two most significant lines of transmission: the one Ciceronian, the other Hebraic. Cicero’s De legibus – a late work, of which probably about half survives – is a confessed rewriting of Plato’s Laws.25 Cicero thus from the outset grounds law in theology: law is ‘right reason’ (ratio recta),

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commanding the good and forbidding evil (1.18, 1.23). But since right reason is divine – the principal thing men and gods share – law must be divine too, and therefore ‘men have Law also in common with the gods’ (lege quoque consociati homines cum dis). Moreover, just as people who use the same laws are considered members of the same civitas, so too law binds gods and men together in transcendent community (1.23). For Cicero, as for Plato, what matters is law’s role as mediator between sacred order and social organization. Cicero, however, draws a further inference from his definition of law as right reason or what we might call ‘moral intelligence.’ If right reason directs us to choose goodness and avoid wrongdoing (2.10), evil, conversely, must be that which perverts moral choice, either by making us like wicked things or by confusing our sense of what things are, in fact, wicked. On both counts, evil turns out to be pleasure (imitatrix boni, voluptas, malorum autem mater omnium) (1.47, 1.31), by which Cicero clearly means bodily pleasure (corporis obsequium) (1.60). The same polarization of virtue and pleasure marks the Laws, but Cicero’s version is harsher; for Plato, both civic and personal virtue require mastering pleasure, not, as for Cicero, ‘scorning and rejecting it’ (1.52).26 Cicero is more like Angelo. A century and a half later, the Jewish historian and statesman, Flavius Josephus (c. AD 37–c. 100), wrote Against Apion, an incisive and erudite refutation of classical anti-Semitism. It is mostly a first-rate piece of historical philology, similar to Valla’s Donation or Casaubon’s attack on the prisca theologia. Against Apion concludes, however, with a sweeping paragone between Hebraism and Hellenism. Josephus, to be sure, argues for the superiority of Jewish civilization to Greco-Roman, but he defends Israel on startlingly Greek grounds: Jews are superior to pagans because their way of life more closely approximates the ideal set forth in Plato’s Laws. Josephus thus explains that Moses, the great lawgiver (nomothetes) of the Jews, framed a code that ordered the whole conduct of life in accordance with God’s will; hence, whereas other nations are monarchies, oligarchies, democracies, or some combination thereof, Mosaic law established a ‘“theocracy” [theokratia], placing all sovereignty and authority in the hands of God.’27 The law, the Torah, comes from God’s hands; thus, Josephus continues, religion governs all our actions and occupations and speech; none of these things did our lawgiver leave unexamined or indeterminate. . . . Starting from the very beginning with the food of which we

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partake from infancy and the private life of the home, he left nothing, however insignificant, to the discretion and caprice of the individual. What meats a man should abstain from, and what he may enjoy; with what persons he should associate; what period should be devoted respectively to strenuous labour and to rest, for all this our leader made the Law the standard and rule. (2.171–4) As in Plato, the law mediates both transcendent communion and political community, the latter – again as in Plato – by leaving no room for individual choice and, consequently, for individual difference. Obedience to the law creates the ‘wondrous harmony’ of Jewish society – the harmony resulting from perfect unison, like that of Gregorian chant. Among the Jews alone ‘will be heard no contradictory statements about God. . . . Among us alone will be seen no difference in the conduct of our lives,’ but rather, unity and identity of religious belief, perfect uniformity in habits and customs . . . [To us] the only wisdom, the only virtue, consists in refraining absolutely from every action, from every thought that is contrary to the laws. (2.179–83) That the Jews have produced ‘no inventors in crafts or literature’ is not, therefore, to their discredit; they do not prize ‘breaking away from all inherited custom’ nor think anything ‘more beautiful’ than the Law (2.183–4). Plato was right, Josephus notes, to throw the poets out of his republic. Josephus construes individualism as following the promptings of one’s own nature in opposition to a transcendent moral Law that is also the ordering principle of group identity. This is why individualism is bad. Significantly, this is also more or less why Cicero denounces pleasure: that is, he regards the promptings of one’s own bodily appetites as intrinsically opposed to laws of right reason and Roman virtus. That pleasure and individualism should be objectionable on much the same grounds suggests that evil of pleasure has little to do with its bodiliness; the relevant antinomy is not that between sensuality and reason but between pursuing that which is one’s own – whether desires, ideas, will, ambition, or fulfillment – and devotion to a higher and/or common good. We will return to this point when we get back to the question of sexual regulation.

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The Athenian Stranger and the English Reformation It seems unnecessary to remark the classical ancestry of Josephus’s political vision, which looks for all the world like Arnoldian Hebraism and yet derives from a Platonic idea. One begins to see how a humanist education could produce Puritans – or, for that matter, Martin Bucer (who is perhaps a bit too early to qualify as echt Puritan).28 The notes to Bucer’s ostensibly sola scriptura program for transforming England into the regnum Christi betray an extensive debt to Greco-Roman sources, but Bucer’s classicism is that of Josephus, a classicism that the post-Enlightenment contrast between Hebraic moralism and antique sweetness and light exiled from historical memory.29 De regno Christi, as I noted above, argues at length for harsh penal laws regulating sexual behavior. It also represents one of the more significant crossover points between classical political theory and English Puritanism, since its vision of Christian polity corresponds at nearly every point to the Laws – a quite startling mutation of Platonic into Protestant legalism. For Bucer, as for Plato, the function of law is to impose sacred order on human society. In the dedication to Edward VI, Bucer explains that he has written De regno to urge the king to work towards the ‘reestablishment of the Kingdom of Christ in your realm,’30 first by preaching, then by having the ‘Great Council of the realm’ (I presume he means Parliament) consent to ‘the full reception of Christ’s Kingdom’ (279; 2.8). Bucer is apparently proposing to legislate in the millennium: to replace common law with the law of God, and thus turn the realm of England into the regnum Christi. The laws set down in the revealed Word of God demand total obedience, for how can it be ‘right for us wretched little men, on our own part completely ignorant of what is good, to modify the laws of the Son of God’ (264; 1.15) – a point Bucer supports by citing Plato’s Laws.31 Our duty is first to ‘seek to understand . . . what the laws, edicts, and institutions of Christ our King are’ and then ‘spend ourselves and all we have in observing these things . . . however burdensome this seems to our flesh’ (265; 1.15). Those who refuse obedience ‘should not be tolerated in a Christian commonwealth’ (272; 2.5); no one can be allowed ‘to violate openly the covenant of the Lord . . . either by neglect of sacred ceremonies or fixed holidays, or by admitted wrongdoings and crimes, and still less by contradiction or distortion of the World of God’ (189; 1.2). Bucer’s is not a liberal kingdom. His intolerance makes no sense – no moral sense – on the assumption that individual autonomy is either a

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right or a good. Like all texts based on Plato’s Laws, De regno understands the good as located above and without the self. Revealed law demands obedience because it is holy and just and true, given by ‘the Son of God, who created and recreated us, and who confers both present and eternal salvation . . . by his rule.’ Hence, Bucer continues, whatever ‘human wisdom suggests to us to the contrary,’ the Lord ‘command[s] nothing that is not always and in every way wholesome,’ nor would He ‘impose anything on us by his laws, unless its observance is necessary for our salvation’ and designed to give us ‘whatever we can desire for our own welfare’ (264; 1.15). It is precisely the goodness of divine law that makes it wrong to disobey or contradict it, just as it is the sacred rightness of Ciceronian reason that makes its prescripts obligatory. In De regno – again as in the Laws and its textual progeny – the law simultaneously brings individuals ‘under God’ and binds them into community, into the Kingdom, for Christ ‘orders and arranges each of his subjects most opportunely as members of his own body,’ who therefore ‘embrace each other . . . as members in a body . . . who really have “one heart and one mind, and all things in common with each other”’ (185; 1.2). The quotation comes from Acts 4:32, but one is also reminded of Plato’s declaration that the best laws are those ‘which render the State as unified as possible,’ where ‘there is observed . . . the old saying that ‘friends have all things really in common”’ where ‘even things naturally ‘“private” have become in a way “communized”’ (Laws 739cd). These are relentlessly organic communities, although Plato tends to emphasize the bonds of likemindedness, Bucer those of mutual charity. He thus describes how those over whom Christ ‘truly reigns seek nothing for themselves, but only what is useful for others’ (182; 1.2), each one ‘contribut[ing] something to the common good’ (315; 2.14). Since, left to their own devices, most people are not quite so pious and unselfish, Bucer further argues that the Kingdom will require a discipline regulating all aspects of life (225; 1.5), enforced by a small army of inspectors, magistrates, censors, guardians, and overseers. He places special emphasis on their role in assigning each citizen work ‘useful to the commonwealth’ (346; 2.53): children will be given aptitude tests to determine ‘what function of life has been designed by God for each citizen,’ along with the training and education necessary to perform that function (182; 1.2). At points, Bucer’s account of the crown’s active participation in all this makes his king sound like the state’s chief vocational placement officer (227; 1.5).

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This enthusiasm for the discipline of work has no classical counterpart; in Plato, citizens do not have jobs. But the Laws provides the framework for Bucer’s system of moral and religious surveillence (albeit Reformation theology supplies the foundation). Christ’s Kingdom requires some such system because people invariably try ‘to get everything for themselves,’ breaking the laws of God and man without compunction to satisfy their ‘unlimited desire for power and honor and pleasures.’ They therefore ‘have constant need of very close watchfulness,’ there being ‘no one who does not need a watchman, monitor, and overseer of piety and virtue’ (367, 361; 2.57). Bucer thus proposes that each ten households have their own guardian, every five guardians a captain, every two captains a centurion, and so forth, to the end that, as Plato had counselled in the Laws, ‘there may be nothing unsupervised’ (362–8; 2.57).32 As before, Bucer’s argument hinges on the implicit identification of private space with self-seeking, predatory appetite, and disregard for the common good; the whole point of surveillance is to bring these dark corners under the ordering and purifying discipline of law – something like bulldozing a red light district in order to build lovely parks and community centers (protected by street lamps, hidden security cameras, and foot patrols). That is not quite what Bucer has in mind, of course, but neither is Stalinism. One cannot really construe Bucer’s inquisitorial militia in modern political categories, since he thinks of legitimate authority neither in terms of consent nor expertise. For Bucer, what gives one man rightful power over another is rather ‘heroic virtue’ (362; 2.57). The censors, overseers, magistrates, governors, priests, and princes of Christ’s Kingdom are ‘holy men’ (311; 2.14)33 – a mysterious cadre strongly reminiscent of the Laws’ semi-divine nomothetes and guardians – and of Puritanism’s visible saints. Bucer’s holy men should not be confused with the Elect – they do not govern reprobates but the citizens of Christ’s Kingdom; they are rather those whom God has endowed with morethan-human gifts so that they might serve as ‘magistrates of his people’ (362; 2.57), just as God, in Bucer’s Platonized-Pauline vision of the state as corpus Christi, fits each person for some useful role within the community.34 The gifts that qualify one to hold power are, however, moral and spiritual, not political: only those men, as Bucer puts it, who are outstanding . . . in heroic fortitude of spirit, sincere religion and piety towards God, honesty, liberality, and kindness, and who excel in other virtues . . . are suitable to be put over other men in

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order to rule them . . . whence they are called gods in the Scriptures. (363: 2.57) These are conspicuously ‘godly’ magistrates, even (in Plato’s sense) ‘godlike’ ones. Moreover, the Kingdom depends on these anomalous creatures: ‘For such is the propensity of human weakness for all vices,’ Bucer informs King Edward with what at first glance seems astounding illogic, that ‘Your Majesty will most earnestly take care that there will never be lacking to his subjects pious, holy, and prudent magistrates who love the commonwealth’ (361; 2.57). Despite his emphasis on the theophany of law, Bucer makes the reordering of human life by the divine logos – which is, for him, the state’s primary function – hinge on the existence of rulers who are not like other men.

Sexual regulation As mentioned above, the Laws is the first western text to argue for the comprehensive public regulation of sexual behavior. It also provides the model for Bucer’s discussion of the subject, which, in turn, reads like a blueprint for the Puritan moral reform literature of the next several decades.35 In both works, moreover, the regulation of sexuality has everything to do with their shared vision of the state – for reasons I have already glanced at in passing. In the political tradition that descends from Plato to Bucer and the early modern Protestant Left, the state is a community: a single supra-personal body, its members united by common customs, values, beliefs, rituals, laws, as well as by a deep fellow-feeling. It is also the principal, if not sole, conduit of sacred order into human life, its statutes embodying la legge che move il sole e l’altre stelle (which is how, had Bucer written the Divine Comedy, I am pretty sure it would have ended). The polis of the Laws and Bucer’s Kingdom are both theocracies in Josephus’s sense: they make God the measure of all things and accept the government of His laws. Politics, religion, and morality are thus interwoven throughout: the state aims at securing transcendent goods such as virtue and holiness; virtue and holiness, by aiming at the common good, secure the state. It follows from this near-total identification of the common good with eternal goods that the state can leave no interstitial spaces where its citizens might cultivate their own private gardens. It is absurd, Plato insists, to allow a person ‘to spend his day just as he pleases, instead of it being compulsory for everything, public and private, to be done by a regular rule’ (780a). The Laws and the political tradition derived from

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it disallow all that resists or evades communal ordering, all expressions of individual preference, all seeking of one’s own interest, benefit, or pleasure. These works hinge on the contrast between pleasure and virtue, between personal desires and the common good. For this tradition, sex poses obvious difficulties, since it involves desires and pleasures, is not a group activity, resists even group supervision. The difficulty has nothing to do with sex per se; none of these disciplinary theocracies – classical, Hebraic, or Protestant – betrays ascetic leanings or praises virginity. The problem is rather that sexuality seems almost by definition aligned with pleasures, with privacy, with individual choice, with personal relationships, with laying claim to a room of one’s own – and therefore threatens the deepest ideals and values of these cities of God. The problem has a two-fold character. On the one hand, sexuality leads to the formation of exclusive bonds, and hence to withdrawal from communal fellowship and the demands of the common good into erotic privacy.36 For both Plato and Bucer, sexual regulation aims, above all, to block this withdrawal, to deprivatize sexual behavior by forcing it into conformity with the interests and well-being of the whole. Having undertaken to frame the laws for his ideal state, the Athenian Stranger thus observes that ‘if the marriage laws were the first to be enacted, that would be the right course in every State’ (721a). Somewhat later – and with unnerving unsentimentality – he summarizes the guiding principle behind these edicts, which is simply that ‘regarding marriage as a whole there shall be one general rule: each man must seek to form such a marriage as shall benefit the State, rather than such as best pleases himself’ (773b). While the right of betrothal belongs to the father (or, in his absence, to other specified kin) (774e), the newly-weds are supervised by official ‘women-inspectors’, who make sure that the married couple apply themselves to the ‘work of procreation’ in order ‘to produce [children] for the State’ (783e). Bucer draws the line at women-inspectors. He does, however, recommend that each parish appoint ‘singularly important and godly men’ to make sure that husbands and wives are conducting themselves in a loving and virtuous manner, admonishing those who ‘give suspicion of an irresponsible and impure life’ or who ‘do not eagerly render the duties of matrimony to each other.’ If this proves insufficient, they are to report the offenders ‘to the ordinary magistrates,’ who ‘by the inflicting of punishments’ will compel them ‘to fulfill their matrimonial pledge’ (327; 2.21).

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Here, as elsewhere, Bucer adopts (and adapts) the Laws’ marital regulations as a vastly preferable alternative to the traditional Christian discipline and theology of wedlock. The tendency of canon law had been to deregulate marriage, to remove it from the jurisdiction of kin and community by holding that a valid marriage required no more (and no less) than the free consent of the contracting parties.37 This struck Bucer as ‘a supremely godless dogma’ (320; 2.18). For Bucer, as for Plato, ‘marriage is a res politica’ (316; 2.15), not a merely private concern. Furthermore, as a political matter, it is subject to regulation by the civil authorities, not just by the church. Bucer thus argues that the prince ought to use both ‘the authority of laws and strictness of judgments’ to ‘ensure that marriages be piously contracted,’ it being vital for the ‘well-being of the commonwealth that matrimony be . . . reverenced according to the will of Christ’ (316; 2.15). Bucer’s specific proposals give some sense of what, for him, constitutes the ‘well-being of the commonwealth’ and ‘the will of Christ.’ These suggestions are all, in one way or another, designed to reinscribe private spaces within the larger social unit. They give priority to the cords of duty, affection, and authority that bind persons into families and communities over the individual’s own desires and decisions. In particular, Bucer argues at length that young people should not be permitted to wed ‘without the knowledge or consent of the parents, out of blind love and the desire of the flesh,’ because ‘the law of God and of nature’ forbids children to emancipate themselves completely from the power of their parents . . . After God, certainly the greatest honor and reverence is due from children to their parents. But what greater contempt can be inflicted by children . . . [than when] they disregard the parents whose dearest tokens of love they are and withdraw themselves from their embrace, use, and power in which God has so sacredly commanded them to be? (320–1; 2.18) That Bucer construes the family in sharply authoritarian terms is obvious, although like most early modern thinkers (and very few postmodern ones) he appears to have no trouble imagining power relations as simultaneously bonds of ‘dearest’ affection. Yet for all Bucer’s authoritarianism, he seems less interested in structures of power than in bonds of obligation. The passage centers on the child’s duty to honor, reverence, and obey his parents as the counterpart of one’s relation to God, as a relation commanded by God, as structured by the

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same deference code that governs both socio-political and spiritual relations. While Bucer is certainly arguing that a child should obey – rather than disobey – his parents, the fundamental contrast throughout is between remaining within the interwoven bonds – of duty, honor, power, use, affection, and the like – that define the family, and, conversely, withdrawing from these bonds to act on one’s own volition, as if a free agent. For Bucer, this contrast between obligation to the larger unit and individual autonomy is always fundamental. Hence not only in the laws of God and nature, but in the laws of Bucer’s Kingdom as well, ‘it must first of all be required that all self-love and all greed [pleonexia] be suppressed,’ and that men be ‘made to acknowledge that they have been born not for themselves but for God, Church, country, and neighbor’ (361; 2.56). We have seen the same contrast before under various terminological guises: the whole versus its parts, public versus private, common good versus self-interest. This basic oppositional structure likewise informs the very unmedieval suspicion of pleasure found in the Laws, De legibus, and De regno Christi and hence their very unmedieval disciplines of sex and marriage. Baldly put, in medieval theology the evil of pleasure (especially sexual pleasure) lies in its pleasurableness; the Corpus juris canonici thus argues that childbirth does not render a woman impure on the ground that ‘it is bodily pleasure, not bodily pain, that is sinful.’38 In Bucer, as in Plato and Cicero, however, what is wrong with pleasure is that it is a private, rather than common, good. Bucer thus uses ‘desires of the flesh’ as a synonym for self-will; to give rein to desire is simply to do as one likes, as opposed to doing what one ought. The state, he argues, should not tolerate idle persons since these, rather than contributing to ‘the good of the entire commonwealth,’ introduce ‘pernicious pleasures’ (334; 2.48): pleasures, that is, which are pernicious because they do not contribute to the good of the commonwealth. It seems worth noting that the condemnation of pleasure in this sense is not confined to the theocratic branch of early modern political thought. One finds, for example, a quite striking analogue in the unusually secular and republican Dialogue between Reginald Pole and Thomas Lupset, which Thomas Starkey wrote for Henry VIII about 15 years before Bucer composed De regno Christi for Henry’s son. The work begins with Lupset arguing that men should live ‘each one to the profit of other,’ and not ‘to their own pleasure,’ a claim which then leads to an attack on Pole’s indulgence in ‘private pleasure’ to the neglect of ‘the common weal.’39 The specific accusation, however, has

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nothing to do with sexual indulgence; Pole has, Lupset charges, allowed himself to become ‘drowned in the pleasure of letters and private studies.’40 As Starkey’s usage makes clear, ‘private pleasure’ is suspect because it is private, not because it is pleasing. From the perspective of the Laws’ radical collectivism, the joys of contemplation and copulation are similarly (if not equally) problematic. Starkey’s debt to this tradition appears throughout:41 in his proposals for legislating virtue, for compulsory marriage, for a bureaucracy of censors, overseers, conservators, and various other supervisory officials, and, more generally, in his desire to extend the state’s regulatory powers into all the private spaces and dark corners of the land.42 Although A Dialogue is not very much like De regno, the two works resemble each other more than might have been expected. Taken together, however, they instance the overlap between republican and Puritan political ideals – the result of shared classical sources, above all Cicero – and hence the often strangely illiberal character of early modern republicanism.43 For both Plato and Bucer, what makes sexuality dangerous – and hence in need of regulation – is, as I have been arguing, that it is private; yet it also worries them because it is not private enough, because there is, finally, no such thing as a truly private domain, since what individuals do in the so-called privacy of their homes, or beds, inevitably affects the community as a whole. Plato states the general point concisely: any legislator who ‘supposes that, if he leaves private conduct unregulated by law, the citizens will still consent to regulate their public and civil life by law – this man is wrong’ (780a). The link between one’s private and public conduct, which this formulation only hints at, is ethos; one’s private habits, that is, shape moral character, which in turn determines the conduct of ‘public and civil life.’ It is on this basis that Plato condemns sexual relations between men: a community aiming at virtue cannot tolerate such unions because they harm the souls of both parties, rendering the seduced unmanly and the seducer intemperate (836de). The Laws contains inordinately long sections on the upbringing and education of children, but since Plato treats these as communal rather than domestic matters, he does not associate them with sexual regulation. For Bucer, however, the family is above all ‘the seedbed of the human race and font of good citizens’; hence the moral character of private life is a crucial determinant of public virtue. As he puts it, ‘chastity and sanctity of life cannot be publicly restored or retained

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unless they first find their place and prevail in individual homes whence citizens must be born and come forth’ (333; 2.47). Since, Bucer continues, ‘everyone brings forth children more for Christ the Lord, the Church, and the commonwealth than for himself; which Plato also recognizes’ (the reference is to Laws 923a), ‘individual homes’ and the children in them are matters of deep, legitimate public interest (335; 2.48). Much of Bucer’s argument for the strict regulation of sexual conduct hinges on this perceived causal link between civic virtues and, as it were, family values. In order to provide the Kingdom with good citizens, the state must ensure that ‘household discipline flourishes among the spouses according to God’s precept’ (316; 2.15). It is therefore ‘completely necessary for princes . . . by utmost severity and just penalties to cut off and strike down not only seductions and adulteries but also all wandering lusts, all illegitimate unions of males and females.’ For once domestic ‘purity and decency’ gives way, then ‘plainly all righteousness will also fail, [and] all fear of God will be struck down’ (333; 2.47). Bucer’s notion of the ‘just penalties’ for sexual wandering is tethered to the framework of ideals and axioms deriving from the Laws: moralistic legalism, all-encompassing state regulation, acute distrust of private pleasures. His claim that it is the prince’s responsibility to punish these offences likewise belongs to this Platonic–Puritan framework. In Tudor England, the regulation of morals (that is to say, sex) had remained, as in pre-Reformation times, largely the domain of the ecclesiastical courts; to favor transferring this jurisdiction from church to state was, for various reasons, a hallmark of the Protestant Left. But it also (mutatis mutandis) follows from the Laws’ theocratic vision of the state. For Plato, as for Bucer, the rulers and laws of the civil polity are responsible for keeping ‘this pendant world’ fastened to the golden chain that descends from ‘th’ Empyreal Heav’n.’44 Hence the state has jurisdiction over the spiritual and moral life of its members, and tolerates no competitors. It is for this reason that Plato makes worshipping anywhere except in the state-run public temples a capital offense (909d–910d) and expels the poets as ‘rivals’ whose ‘melodious voices’ the state cannot permit to ‘drown our own’ (817bc). In Bucer, the state is the regnum Christi, leaving no need for, and no room for, even a semi-separate corpus mysticum; there are clergymen in Bucer’s imagined kingdom, but no Church.

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The wages of sin While both Plato and the Protestant Left require the state to legislate and enforce sacred order, the Greek did not have to factor Mosaic law into his political equation. But for England to become Christ’s Kingdom, as Bucer understands it, its laws must conform to God’s law set down in the Old Testament criminal code, which, among other things, prescribes the death penalty for adultery, defined as ‘the ravishing of anyone’s wife, fiancée, or daughter’ (381; 2.60).45 Bucer argues strenuously for its reinstatement on the grounds that men are not authorized to relax ‘the punishments decreed by God.’ To do so verges on blasphemy, since whoever rejects ‘this severity commanded by God . . . necessarily makes himself wiser and more loving than God’ (381; 2.60). Bucer’s call to reinstate Mosaic law marks the opening of what would prove to be a century-long Puritan battle to enact legislation punishing adultery ‘with the severity commanded by God,’ thereby bringing the state back into line with the sacred. From the latter half of the sixteenth century on, there was a series of bills introduced in Parliament criminalizing adultery; in 1584 and again in 1604, the year Measure for Measure was written, Puritan spokesmen urged legislation making it a felony, the 1604 bill getting as far as a second reading in the House of Lords before being defeated.46 These efforts failed until finally, in 1650, by an ordinance that, in the words of a recent historian, ‘epitomizes the triumph of Puritanism in England,’ the Rump Parliament declared adultery a capital offense.47 At issue was not simply whether the judicial laws of the Old Testament remained binding on Christians. Bucer’s main point concerns the nature of law. Since theft is less sinful than adultery, why, he asks, does the state condemn the thief to the gallows but not the adulterer? (382; 2.60). The sanctions imposed by law, that is, should reflect the sinfulness of the act, its absolute moral value. This is, of course, the position of the Laws; that the state’s rules and regulations should embody the transcendent moral law is at the heart of its political vision. Bucer’s legalistic Scripturalism thus dovetails with his Platonic legalism. For him, as for later generations of Puritans, the failure of English common law to punish most sexual sins – together with the failure of canon law to impose more than minimal sanctions – ripped apart the cosmological fabric; the status quo implied a claim for the autonomy of human justice that men striving to restore Christ’s kingdom found intolerable. The punishment of adultery

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remained a flashpoint from the Edwardine era through the Interregnum, because it was here that temporal law seemed to spring loose from its sacred moorings, that the state refused to embody transcendent order. This troubled awareness of a rupture between social and sacred order also haunts discussions of fornication. From the Homilies on, these discussions center on the gap between Christian ethics, which classified fornication as a mortal sin, and the actual moral intuitions and standards of Tudor culture, which took a lighter view of the matter. As the ‘Homily against Whoredom and Uncleanness’ famously notes, this vice is grown into such an height, that in a manner among many it is counted no sin at all, but rather a pastime, a dalliance, and but a touch of youth. . . Wherefore it is necessary at this present to intreat of the sin of whoredom and fornication, declaring unto you the greatness of this sin.48 Puritans, to whom it mattered very much that legal sanctions be calibrated in terms of absolute morality, insisted not only on the sinfulness of fornication but on the state’s duty to punish it. While no parliamentary bills suggested punishing it by death, Bucer seems to have favored this, as did some Puritan moralists. The trust in draconian laws is a Puritan hallmark, but these texts also share the Homilies’ anxiety that popular insoucience about the erotic ‘pastime[s]’ of English youth bespeaks some terrible moral disorientation of the whole society. Thus when the interlocutor in Stubbes’s Anatomy of the Abuses in England (1583) observes that many people regard ‘whoredom’ as merely a ‘badge of love, a cognizance of amity . . . rather meritorious than damnable,’ the principal speaker lashes back, ‘Cursed be those mouths that thus blaspheme the mighty God of Israel . . . worse are they than . . . Atheists who deny there is any God. The devils themselves never sinned so horribly.’49 The punishments meted out by the church courts are so absurdly light as to be ‘a plain mocking of God and of his laws.’ The secular magistrates, whose ‘offices are to reform vice and maintain virtue,’ either ‘wink at it, or else, as looking through their fingers, they see it, and will not see it.’ Those guilty of ‘whoredom, adultery, incest, or fornication, either should drink a full draught of Moses’ cup – that is, taste of present death’ – or be ‘seared with a hot iron,’ since ‘for as long as this immunity and impunity is permitted amongst us, let us never look to please GOD, but rather provoke his heavy judgements against us.’50

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Thomas Lupton’s Too Good to be True (1580–81), like Bucer’s De regno an exercise in airy kingdom-building along advanced Protestant lines, rehearses similar anxieties and antidotes: the inhabitants of Ailgna (‘Anglia’ spelled backwards; this is not a subtle work) take illicit sex ‘rather for a sweet solace, than for a shameful sin,’ as if they ‘love[d] chiefly that [which] God forbids.’ If, however, ‘the fornicator, whoremonger, adultress, & harlots were put to death,’ the Ailgnans would not mistake the gravity of this ‘filthy vice.’ For only ‘if our bodies be chaste and holy, God the holy Ghost will dwell in them.’ If an ‘earthly king’ decided to visit a ‘poor man’s house,’ even just for an hour, ‘should not that house be made clean in every corner?’ So, too, ‘all wise men and women will keep their bodies godly and chastely, to be a house for God, and all fools will live unchastely, and keep their bodies filthily, to be a den for the Devil.’51 For Lupton, as for Stubbes, the evil of fornication has far less to do with its social costs – fatherless children, broken marriages, venereal diseases – than nightmare visions of souls, of a community, given over to the wrath of God or abandoned by His Spirit. Lupton and Stubbes respond to this threat in the same manner as Bucer: by stressing the need for harsh penalties, preferably death. Since, after the Reformation, the church courts could impose only symbolic punishments, the Puritans’ demand that sexual offenders be imprisoned, branded, or executed makes the secular magistrate (and the common law) responsible for seeing that God’s will be done on earth. Stubbes’s claim that ‘it is the office of the prince to see all kind of sin . . . severely punished’ is, especially if one takes ‘prince’ as shorthand for all temporal authority, typical of what might be called civic or ‘white’ Puritanism (as opposed to ‘black’ presbyterian Puritanism, which gave the Consistory, not the state, control over moral discipline).52 The same white Puritanism informs the parliamentary bills dealing with whoredom, swearing, drunkenness, and the like; the preambles to these bills, and the speeches supporting them, insist upon ‘the fact that such vices caused the dishonour and displeasure of Almighty God who, it was claimed, would not allow such sins to go unpunished . . . “but will lay his heavy hand of wrath and indignation upon this land.”’53 For the Puritan gentlemen who introduced these bills into the House of Commons – as, in fact, for most English Puritanism – it was the state’s duty, the duty of the ‘Christian magistrates and godly governors of England,’ to keep the social order on its sacred foundations.54 Of course, the repeated failure of these bills points to a deep

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disagreement regarding this conception of the state. As Joan Kent observes in a fine article on the subject, the parliamentary debates over the regulation of personal conduct do not indicate strong differences of opinion regarding moral standards, but rather ‘conflicting views about government and society.’55 The disagreement was, at bottom, political. The Puritan demand that the state ‘reform vices, punish abuses, and correct sin,’ that it enforce the laws of God, is a call for theocracy. Puritan political thought, that is, belongs to the tradition of Plato’s Laws and Josephus’s Against Apion.56 Its theocratic ideal came in conflict with the traditional, and largely implicit, understanding of the state as a more limited entity, responsible for keeping the peace and punishing acts injurious to others, but not for enforcing goodness or ushering in Christ’s Kingdom, these being the church’s work. This secular model has a long history in papal political thought; already in 494, Pope Gelasius had confined the role of Christian rulers ‘to dealing with outward necessities and public order among the Christian people committed to their care.’57 Aquinas argues along similar lines that it is not the business of human laws to prohibit all sins but mainly those ‘whereby one’s neighbor is injured’; they should not, that is, require perfect virtue from ‘ordinary people,’ but simply forbid ‘the more grievous vices from which it is possible for the majority to abstain and chiefly those that are to the hurt of others,’ murder and theft included.58 Most Protestant reformers, Bucer being a case in point, rejected this medieval separation of spiritual from temporal government, although Luther preserved the distinction, as did Melanchthon, whose massively influential Loci communes defines the civil magistrate in secular terms as ‘one who bears the sword and watches over the civil peace.’59 In England, the common law’s focus on narrowly technical property issues may have contributed to a limited and secular conception of the state. John Bond’s remark during a 1601 Commons debate over the legislation of morals, that ‘every evil in a state is not to be met with in a law,’ reflects the anti-theocratic spirit of the common law – and of Gelasius.60 At least on occasion, those who spoke in the Commons against the disciplinary legislation sponsored by its Puritan members explicitly distinguished secular (that is, civil) authority from the regulation of moral and spiritual life: in another 1601 debate, Edward Glascock thus argued against a proposed anti-blasphemy law on the ground that Man is made of two parts, a soul and a body; and there are two

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governments, one imperial, the other sacerdotal; the first belonging to the commonwealth, the other to the church. Swearing is a thing moral and toucheth the soul; and therefore fitter to be spoken of in a pulpit than a Parliament.61 This is the medieval version of the separation of church and state (one that, incidentally, explains why the church courts had jurisdiction over sex and marriage), yet Glascock’s view of the state does not differ in essentials from Bacon’s seemingly modern, even Millian, claim that ‘moral philosophy propoundeth to itself the framing of internal goodness; but civil knowledge requireth only an external goodness; for that as to society sufficeth.’62 For Bacon, as for Glascock, the state exists to maintain outward order, prosperity, and peace; its jurisdiction does not, however, extend to people’s souls or their morals. Glascock, of course, is distinguishing civil from ecclesiastical government, not, like Bacon, politics from morality, but it is easy, given the relative powerlessness of the post-Reformation English church, to imagine the one evolving into the other, and hence to group together on one side these early formulations of a secular, liberal politics – the other side, as one might expect, being occupied by Puritan theocrats. That is, it seems possible, and not altogether wrong, to view TudorStuart disputes over the regulation of sexuality (and, more generally, of private morals) as a conflict between, on the one hand, a sacral, communitarian vision of the state, whose hold on the political imagination of the West lasted from Plato to Puritanism, and, on the other, a recognizably modern politics, one that does not require the state to embody God’s will or to make men virtuous, but restricts its jurisdiction to secular, public concerns, which in effect both privatizes the sacred and legitimates the private (at least in the long run), and does so by leaving interstitial spaces in the fabric of the common law, spaces where the individual is a law unto himself (sui iuris) – the literal meaning of autonomy, but also a standard definition, from antiquity on, of personal freedom.63 This is not quite Whig history, but it yields the same basic story: the supersession of authoritarian Christian society by the modern secular state.64 What makes Measure for Measure interesting as a political text is that the work seems poised to tell this story and then simply does not. The dramatic logic of the play hinges on the connection between private and public morality. Moreover, in a play in which the villain is a puritanical magistrate with an unhealthy zeal for sexual regulation, one

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would expect the hero to be a bit more loose and liberal than Vienna’s Duke. Much of the critical discomfort with this play – the sense that it is problematic, dark, morally queasy – stems from the fact that the characters ranged against the ‘precise’ Lord Angelo (I.iii.51) do not seem to be on the right side, but rather on a different wrong side.65 For one thing, the good people in this play take the issues of sexual morality and sexual regulation with deep seriousness.66 Escalus at one point even defends Claudio’s death sentence as a ‘needful’ severity (II. i. 243), although earlier he terms Claudio’s offense a mere ‘fault’ (II.i.40). Other characters, however, make a far darker assessment – and not only Isabella. Claudio himself fears that his lovemaking may be a ‘deadly’ sin for which he will spend eternity among ‘those that lawless and incertain thought / Imagine howling’ (III i.110, 127–8). The question of exactly how sinful fornication is runs throughout the play: is it as bad as murder (II.iv.41–109)? is it worse than usury (III.ii.5–24)? is it rather ‘a merriment than a vice’ (II.iv.116)? The analogues do not worry this issue; Whetstone’s Promos and Cassandra (Measure for Measure’s principal English source and a work to which we shall return) wrestles with social injustice and the abuse of power, not whether, in God’s eyes, fornication is equivalent to homicide. In Measure for Measure one has a sense that the moral status of sex is both very important and very unclear. The same holds for its legal status. The play repeatedly takes up the issue of sexual regulation, although with no clear outcome. Thus, for example, threading across the scenes is a debate (muted, elliptical, and truncated, to be sure) over the legal implications of the fact, in the Provost’s words, that ‘All sects, all ages smack of this vice’ (II.ii.5). The Provost views the universality of sexual transgression as a mitigating factor: if all are guilty of this vice, why should only Claudio die for it? Isabella makes the same point to Angelo (II.ii.140–5). But the Duke reverses the argument, replying to Lucio’s suggestion that ‘A little more lenity to lechery would do no harm,’ that ‘It is too general a vice, and severity must cure it’ (III.ii.86–8). In the Duke’s eyes, universality seems an aggravating factor, justifying sharp punishment. To which Lucio responds that the universality of the offense will make such punishment, justified or not, futile; the vice ‘is impossible to extirp . . . till eating and drinking be put down’ (III.ii.89–91).67 The play keeps circling back to questions concerning the state’s policing and punishment of sex. It seems to find these important questions. That Measure for Measure allows a real possibility that fornication may be a mortal sin and the sex life of consenting adults subject to

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public discipline is part of the larger reason the political alternative to Angelo’s Puritan theocracy cannot be the secular state, nor even its harbinger. The alternative to Angelo is the Duke, and one could hardly imagine a less secular ruler than this mysterious figure, whose friar’s robes seem to disclose rather than disguise the nature of his authority, who soliloquizes in theocratic-sounding couplets on how rulers bear the ‘sword of heaven’ (III.ii.223) and devotes considerable effort to preparing his subjects for eternity. Given the Duke’s profound religious aura, along with the fact that nothing in his words or behavior seems at all relevant to what are usually considered the political foci of the early Jacobean era – the ancient constitution, the liberties of the subject, parliamentary authority, to say nothing of monopolies, wardship, taxation, and Scotland – it is not clear that the Duke should be read politically. Some critics have thought him a Christ-figure; others, a stock theatrical character ‘unmimetic of anything in the social world.’68 To see the Duke, and the play, as having political import, one needs to rethink, in some fairly fundamental ways, the nature of early modern politics, above all, what religion has to do with it.

Excursus The preceding chapter has focused on the Platonic–Puritan understanding of law – in particular, laws regulating sexual behavior – in order to reconstruct the political backdrop to the Viennese anti-fornication statute that Angelo defends and enforces. Yet, at the risk of confusing matters, I want to make it clear that sexual regulation was not an exclusively Puritan–Platonic concern.69 The play implies as much, since, for all Angelo’s rigor in dealing with those convicted of fornication, the statute itself is not his doing but had been on the statute book for years – and the initial move to tighten its enforcement comes with the Duke’s blessing. Moreover, while sexual regulation plays an unusually central role in Platonic–Puritan thought, concern with regulating sexuality – or at least concern about unregulated sexuality – shows up across the Tudor-Stuart theo-political spectrum. In particular, the view that public virtue depends on private morality, a view both Plato and Bucer uphold, is not specific to the Laws tradition, but is a widespread and longstanding commonplace. It is, in fact, a commonplace Measure for Measure ratifies. For this reason, if no other, it seemed essential to qualify and supplement the discussion of Platonic–Puritan sexual regulation with this brief tailpiece on the near-universal pre-modern conviction that private and public ethos are inextricably linked.

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That the evils of lust and luxury seep out from private spaces to corrupt the state was a topos in Roman literature from the late republican period on – unconfuted, to the best of my knowledge, until Mandeville’s Fable of the Bees (1714) with its outrageously wonderful ‘private vices, public virtues’ thesis, and still sufficiently entrenched in the mid-nineteenth century to be the principal target of Mill’s On Liberty. Roman literature stressed the corrosive effect of decadence on civic virtue; its perspective is sociological, whereas sixteenth-century English texts pay more attention to the psychology of moral collapse: to the process by which illicit sex leads to catastrophe personal disintegration. The Tudor Book of Homilies gives this account of ‘the sin of whoredom’ – a rubric designating, and deliberately conflating, fornication and adultery. It is a stinking sink, whereinto all kinds of sins and evils flow . . . . Is not the adulterer also idle, and delighteth in no godly exercise, but only in that his most filthy and beastly pleasure? Is not his mind plucked and utterly drawn away from all virtuous studies and fruitful labours, and only given to carnal and fleshly imaginations? Doth not the whoremonger give his mind to gluttony, that he may be the more apt to serve his lusts and carnal pleasures? Doth not the adulterer give his mind to covetousness and to polling and pilling of other, that he may be the more able to maintain his harlots and whores . . . . Swelleth he not also with envy against other, fearing that his prey should be allured and taken away from him? . . . What valiantness and strength is many times made weak and destroyed with whoredom! . . . What contention and manslaughter cometh of whoredom!70 Illicit sex is like narcotics: it turns people into criminals. As King James explains in Basilicon Doron, fornication is a serious matter because once a man begins ‘to measure any one sin by the rule of his lust and appetites, and not of his conscience, what shall let him to do so with the next that his affections shall stir him to, the like reason serving for all.’71 These are official texts, but the same domino theory of vice informs the popular murder pamphlets of the Jacobean period, whose stories of crime and punishment follow the nightmarish logic of the Homilies, where the initial sexual infraction rips the self from its ethical moorings, so that it plunges downward from one sin to the next on the fierce currents of appetite and impulse.72 This paradigm slips over into political representation, as can be seen

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at once from James’s definition of a ‘usurping Tyrant’ as a ruler governed by ‘his passions and inordinate appetites.’73 The passions and appetites at issue here need not be sexual – rage, envy, and ambition are likewise passions – but as in Shakespeare’s ‘The expense of spirit in a waste of shame,’ the account of ‘lust in action’ is modeled on sexual appetite.74 The tyrant, on this view, differs from the ‘lawfull good king’ because the former, in seeking to fulfill his ‘unruly private affections,’ ends up subordinating ‘the common-weal’ to ‘his particular.’75 A ruler’s private vice inevitably leads to public and political corruption, which is why, from Suetonius’ Twelve Caesars to Marlowe’s Edward III and Shakespeare’s Richard II, sexual immorality remains the hallmark of the tyrant. The belief that illicit sex erodes the moral foundations of personality and hence that the ethical order of the state hinges on the private virtues of public officials has an obvious bearing on Measure for Measure. Both claims are built into the plot, which centers on a ruler whose yielding to lust explodes into acts of gross injustice and abuse of power. Angelo’s moral collapse follows the trajectory mapped in the Book of Homilies – one reason why the play will not support a Millian reading on which sex turns out to be a private matter, irrelevant to the conduct of public life, and hence outside the state’s jurisdiction. When Angelo tells Isabella ‘now I give my sensual race the rein’ (II.iv.161), one begins to see why sexuality needs ‘bits and curbs’ (I.iii.21). The Duke sums up the problem in his remark to Friar Thomas that ‘Liberty plucks Justice by the nose’ (I.iii.30), and the plot ratifies his sense that sexual licence leads to social injustice: to the victimization of the weak and oppression of the innocent, to Lucio’s child abandonment and Angelo’s sexual extortion. While Measure for Measure vividly registers Angelo’s interior decay and fall, the psychological portraiture bears centrally on the work’s political argument: in particular, the antiMachiavellian topos, articulated in one form or another throughout the play, that a good ruler must be a good man. In Measure for Measure this suspiciously banal-sounding claim turns out to have unexpected and complex political implications. I will come back to it in the chapter that follows.

2 Political Theology

Plato is an extraordinary storyteller, even in the late dialogues. The following story first appears in the Statesman (269a–275c) but Plato returns to it briefly in the Laws. In the Statesman’s version, the Athenian Stranger tells his young interlocutor that there are two eras in cosmic history, the one succeeding the other in perpetual alternation; in the first age, ‘God himself assists the universe on its way and guides it,’ but there is also a time, the present time, when he ‘let[s] go the handle of its rudder’ and retires ‘to his conning tower in a place apart,’ leaving the universe alone, under its own control and government. In the first age, while God remains supreme governor, he places the several regions of the universe under the direct rule of ‘tutelary deities,’ setting ‘a heavenly daemon’ over each of the flocks of human creatures to be its shepherd. During this era there is no politics, for the shepherd-daemons supply all the needs of their charges. Neither is there any sex – ‘no taking of wives and begetting of children’ – but the earth itself gives birth to all creatures. When, at the end of the first age, God withdraws to his watchtower and the tutelary spirits depart, the universe tries to guide itself by recalling ‘so far as it was able, the instruction it had received from God, its maker and its father’; but ‘as time goes on and forgetfulness of God arises in it, the ancient condition of chaos also begins to assert its sway,’ engulfing creation in a rising tide of evils and disorder, until God once more takes over the helm. But for as long as this second age, the age after the gods depart, lasts, the universe has ‘sole responsibility and control of its course.’ For human flocks, their shepherds gone, the metaphysical autonomy of the cosmos means that they must learn the arts of civilization and politics so as to fend for themselves, and that they must also learn to reproduce ‘by their own power,’ in other words, sexually. Sexual inter39

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course is thus the counterpart to political autonomy, both being modes of self-government, of assuming responsibility for one’s own existence. Plato retells this story in the Laws, but with a significant change in emphasis. As in the Statesman, the Laws’ version describes how in the first age the kings ruling over human communities were a higher shepherd-race of divine spirits who governed with mercy, justice, and peace (713c–714b). But the Laws then adds something not in the Statesman: that the tale has ‘even to-day . . . a truth to tell,’ namely, whenever a state has man, and not God, for its ruler, the result will be wickedness and misery. Hence, the passage continues, we should bend all our efforts to recreate the life of that first age, when the gods were our shepherds, by ordering ‘both our homes and our States in obedience to the immortal element within us, giving to reason’s ordering the name of “law.”’ In contrast to the Statesman, where the present era must take up the burden of autonomy and self-government in a world where the gods are only a memory, the Laws demands that we submit to the rule of the divine spirit residing within us, which is what Plato means by law. The law is the shepherd-daemon of this latter age. Plato’s story about a godlike ruler who lets go the reins of authority, withdraws to his watchtower, and then returns and resumes control – a story about what happens to the community during this ruler’s absence – has an odd and obvious likeness to Measure for Measure. The Statesman’s version describes the birth of secular politics; but in the Laws, the gods’ withdrawal does not leave this sort of empty space for the human invention of government, civilization, and sexuality. While the Laws also treats the birth of politics (the aim of the whole dialogue is to conceive the best polis), its politics is not secular, but rather the opposite: politics as the attempt to discern those loci within the otherwise secular framework of the state where the transcendent remains available to the temporal. If the well-being of a community depends on having God and not man for its ruler, then the crucial political question becomes, who or what in the state is the bearer of the holy? The Laws’ answer is obviously, with respect to the present era, the law, but both this dialogue and the Statesman longingly imagine the sweet societies of the first age as the rule of divine shepherd-kings – and not, to mention the obvious alternative, as Milton’s Edenic lovers ‘imparadis’t in one another’s arms.‘1 The analysis of political order in terms of sacral loci would seem, from the outset, to hold at its center a dream – the memory of a dream – in which ‘nobler and more divine’ beings govern the kingdoms of the earth (Laws 713d). My point is not that Plato’s story is either source for or key to

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Shakespeare’s play,2 but rather that the two versions of the tale stand at, or very near, the origin of the two main traditions in western political thought, one of which remains the dominant language of politics; the other went underground at the Restoration, disappearing from both history and memory.3 What Plato’s twice-told tale suggests is that both traditions emerge from the same spiritual crisis, the crisis Plato symbolizes in the myth of the gods’ withdrawal. According to the Statesman, the question then becomes how a community is to govern itself; according to the Laws, the question is in what more attentuated or mediated forms the gods still guide the community. One might distinguish between them by saying that the first question gives rise to political theory, the second to political theology, but these are both political discourses. These next three chapters – and, indeed, the first chapter as well – are intended as a preliminary investigation into Tudor–Stuart political theology, with Measure for Measure, like Ariadne’s thread, guiding through the twists and turns of the maze. While I will argue that much early modern political thought belongs to this tradition, it is worth pointing out that much does not. The largely, and sometimes wholly, secular discourses of political theory coexist with those of political theology throughout the period. In particular, the closely intertwined Aristotelian, constitutionalist, and republican strands, which supply the dominant language of early modern political theory, are essentially secular; they focus on how a community governs itself (or is governed); which is to say, they focus on power – on its distribution, transfer, acquisition, administration, and loss. Aristotle’s Politics, the standard political text in Western Europe from the twelfth to the seventeenth centuries, thus deals at length with such issues as representation, checks and balances, class conflict, majority rule, simple and mixed constitutional forms – all of which concern the allocation and management of power.4 For Aristotle, questions of power – who has it? under what conditions? – are ethical questions, since ‘the end of the state’ is to secure for its citizens ‘the good life,’ ‘a happy and honourable life’ (Politics 3.5.1280b).5 Aristotelian political theory deals with how power should be allocated and managed in order to achieve these, wholly secular, ethical goods. Machiavelli radicalizes this secularism by severing the analysis of power (that is, political theory) from moral considerations; the Taciteanism of the late sixteenth century, with its ragione di stato, likewise tended to drive a wedge between might and right. While it is simply not true that a Machiavellian politics of pure power displaced

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Aristotle’s classical-republican notion of politics as the orchestration of power within a community to achieve the good life for its members,6 during the sixteenth century Machiavellianism became a language that men did use. Sir Thomas Smith, a distinguished Elizabethan statesman and diplomat,7 defines the state as simply a group of free men banded together for self-preservation (1.10); and, even more remarkably, identifies ‘what is just or law in every country’ as whatever serves the interests of its ruling class (1.2).8 There are portions of Aristotle’s Politics that read like a blueprint for the US Constitution. In general, the history of political theory is more continuous than not, so that Aristotle’s relation to modern political thought is approximately that of Chaucerian to modern English. Political theology seems more like Beowulf. The problem is not that it gives the wrong answers. Machiavelli’s Prince gives the wrong answers. Political theology asks the wrong questions: questions that are not about power but about charity, penitence, forgiveness, and salvation; questions about godly magistrates, the sword of heaven, and Christ’s kingdom; questions which seem both to miss and mystify the point. We have trouble recognizing such matters as ‘political thought’ and rarely accord them more than passing mention in our histories of the subject. Yet circa 1600, Puritans, humanists, lawyers, statesmen, churchmen seem to care (and disagree) passionately about how the sacred was, or should be, embodied and institutionalized in the state. No one issue is more central to the politics and political thought of the age.9 Political theology, like political theory, is not a specific platform, but a way of thinking about the state. King James and Bucer both employ the language of political theology, as do a great many early modern Englishmen, including such unmystical statesmen as Bacon, Ellesmere, and Coke, although they disagree over who bears the sword of heaven and how it should be borne.10 Moreover, while some early moderns (Bucer and Machiavelli come to mind) use one or the other mode exclusively, most seem to have found no contradiction in mingling the secular categories of common law and Aristotelian theory with political supernaturalism.11 Bacon, who understood power politics fairly well, will also refer to kings as ‘sacred’ persons and describe monarchy as imitating ‘the government of God himself over the world.‘12 In general, it seems reasonable to assume that when Elizabethan and Jacobean writers use political theology, it is not because they lack a more secular and skeptical language in which to reflect on the state.

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Sacral loci The Puritans’ imagined gracelands, from Bucer’s De regno Christi (1550) to Richard Baxter’s Holy Commonwealth (1659), are all experiments in political theology. Baxter’s work, written as a reply to Harrington’s republican-constitutionalist Oceana, is of particular interest since it explicitly addresses the relation of sacral politics to political theory. Baxter, of course, defends the former, partly on the grounds that constitutional form does not much matter; if imprudent and impious men govern a nation, it will be undone whether its constitution is monarchic, aristocratic, democratic, or any mixture thereof; whereas, Baxter continues, prudent, faithful rulers, no matter what the constitution, ‘are likely to be a blessing to the people.’ Virtue and holiness are more politically significant than any ‘contrivances’ for allocating power.13 Yet Baxter’s quarrel with Harrington goes deeper than this. If the two men disagree over how to attain the ‘ends of government and society,’ they also differ about the nature of these ends. On the eve of the Restoration, Baxter holds on to the Puritan vision of a ‘theocratical policy,’ where state and church have become ‘altogether or almost the same,’ where princes administer ‘God’s laws,’ where prosperity matters less than ‘the honor and pleasing of God, and the salvation of the people’ – in short, a holy commonwealth, which Baxter, like Bucer, equates with the ‘reign of Christ on earth.’14 By the time he came to write his autobiography two decades later, although the vision still glowed in the old man’s heart, Baxter had accepted the terms of Harrington’s peace: ‘though I think that land most happy whose rulers use their authority for Christ as well as for the civil peace, yet in comparison of the rest of the world I shall think that land happy that hath but bare liberty to be as good as they are willing to be.‘15 Baxter’s recantation belongs to the generation when political theology died. Yet, although the Reformation eventually led to the privatization of religion and the secular state, its short-term effect was nearly the opposite. Protestantism rejected the papal church’s claim to be the earthly kingdom of Christ,16 and abolished or demoted all the traditional loci where the sacred had penetrated the temporal order: anchorites, relics, shrines, images, holy water, consecrated Host. Protestant responses to this second withdrawal of the visible gods and holy shepherds diverged along multiple trajectories, but almost always in search of those loci where the sacred remained or might be reconstituted. And along one path or another, most searches ended up in the state, which is why so much early modern political

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reflection takes theological form, and also why so much early modern religious debate concerns issues of temporal power. It is no new observation that the Reformation, certainly the English Reformation, involved the massive transfer of sacrality from church to crown: when, as Kantorowicz memorably put it, ‘the absolute Prince . . . stepped into the shoes of the Roman Pontiff.‘17 Francis Oakley, who tells a similar story, describes how by the 1530s, Protestants such as Barnes and Tyndale ‘had come to envisage the king’s authority . . . as extending now beyond the temporal to encompass the spiritual’; during the same years, those defending the royal supremacy began a ‘sweeping onslaught on the distinction between the church’s spiritual and the prince’s temporal government that had formed the very foundation of traditional ecclesiologies and political theories.’ It was not the pope but the king, according to Gardiner’s De vera obedientia (1535), who represented ‘as it were the image of God upon earth’ and to whom God had given ‘charge of spiritual and eternal affairs.‘18 Half a century later, Whitgift would make a similar point against presbyterian sacerdotalism: namely, that ‘in the place of [the New Testament’s] elders and seniors are come christian princes and magistrates’; for ‘Christ ruleth in his church by the godly magistrate.‘19 Perhaps the loveliest formulation of this idea comes on the eve of the Civil War in the final chapter of Thomas Fuller’s The Holy State (1642), the chapter on kingship. Like the Henrician apologists, Fuller is defending the king’s claim to be ‘supreme Head on earth over the Church in his dominions,’ but the analogy he uses to describe the royal supremacy does not evoke the jurisdictional contest between pope and prince but rather an image, shot through with nostalgia and mystery, of the king as the absent-presence of Christ. He [the king] holds his crown immediately from the God of Heaven. . . . And whosoever shall remount to the first original of kings shall lose his eyes in discovering the top thereof, as past ken and touching the heavens. We read of a place in Mount Olivet (wherein the last footsteps, they say, of our Saviour before he ascended into heaven are to be seen) that it will ever lie open to the skies, and will not admit of any close or covering to be made over it, how costly soever. Far more true is this of the condition of absolute kings, who in this respect are ever sub dio, so that no superior power can be interposed betwixt them and heaven. In princes, as on Mount Olivet, one beholds the direct imprint of the

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holy, for in and through them ‘the Most High ruleth in the kingdoms of men.’20 I will return to this high Christian royalism, which, together with the Platonic–Puritan model, constitute the dominant strands of Tudor–Stuart political theology. For now – and, among other things, by way of prefacing that discussion – my point is simply that both Protestantism’s holy kings and the holy commonwealths of Puritanism represent ways of imagining the state in terms of sacral loci. They are two versions of what William Lamont calls ‘godly rule’ (and which I have called ‘political theology‘), which formed ‘the mainstream of political thought until the time of the Civil War’; if James’s writings and speeches ‘all reflect one central obsession: the desire to live like a Christian Prince,’ this was, Lamont points out, an obsession ‘he shared with the majority of his Protestant subjects.’21 Foxe’s millennarian narrative of England as elect nation and Elizabeth as Christian Emperor, ‘through whose true, natural and imperial crown, the brightness of God’s word was set up again to confound the dark and false-vizored Kingdom of Antichrist,’22 is yet another version of godly rule, as is Zwingli’s identification of the visible church with political community, whereby ‘the Christian city is nothing other than the Christian Church.’23 In England, and northern Europe more generally, humanist political thought likewise dreams of ‘a renewed Christian society – a truly Christian commonwealth – not of a restored secular political order on the classical model.’24 The various attempts to locate the sacred within the state have much to do with the power politics of legitimation, but to assume a demystified reading from the outset, rather than illuminating this strange project, merely denies its strangeness. When early modern English people describe the magistrate as godly they do not (at least not usually or primarily) mean that the Bishop of Rome is not, nor that the magistrate should be obeyed, nor that he has been seen wearing a halo, but rather that he governs with what the speaker takes to be justice, charity, wisdom, and courage. To designate someone or something as a sacral locus is to say that here is where the moral and spiritual substance of Christianity enters the political field and transforms it, lighting up the circumambient darkness like Portia’s good deed in a naughty world. John Milbank’s Theology and Social Theory begins with the observation that modern thought views politics as a chaotic wrangle of force and counter-force, ‘which cannot be tamed by an opposing transcendent principle,’ there being no such principles, ‘but can be immanently controlled by subjecting it to rules’ (such as, for

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example, the Voting Rights and the Sherman Anti-Trust Acts).25 The political thought of the sixteenth and seventeenth centuries, by contrast, hinges on the local presence of transcendent principles, from whence flows into the world all that opposes factionalism, selfinterest, politics as usual, and the will to power. If the Reformation on the whole transferred sacrality from church to state, at least as regards England, the various specific transactions present a much more complicated picture. Only the Puritan theocracies and the infamous frontispiece to the Great Bible, in which the clergy gratefully receives God’s revealed Word from the hands of Henry VIII, suggest a near-total incorporation of the sacred within the state. The royal headship was a sufficiently murky notion that the English church could still seem a locus of the holy distinct from the institutional fabric of the kingdom.26 Despite its Constantinian frame, Foxe’s martyrology describes a world in which the bearers of the sacred stand in defiant and dramatic opposition to all powers-that-be. The one major political work of the period, Hooker’s Laws of Ecclesiastical Polity, does not invest either church or state with much in the way of sacrality, but rather treats both as essentially coercive institutions, employing ‘power external and visible’ to suppress riot, dissidence, heresy, and other such offspring of pride and ambition. For Hooker, the holy intersects the temporal plane at the altar, in psalmody, in antiphonal chant, in the body and blood of Christ, but not, not primarily, via kings, bishops, magistrates, or laws; not through the channels of authority.27 There is something quite remarkable about the fact that Hooker, whose treatise combines ‘aggressively demystifying’ historicism with Aristotelian political theory,28 felt it necessary to include rapturous passages on the experience of taking Communion, on church music, on the holy angels who ‘intermingle’ with the congregation on Sunday morning and fill the church with their invisible beauty.29 The Laws conspicuously avoids sacralizing Tudor polity, whether ecclesiastical or civil, yet that the sacred have a local presence within the political framework remains crucial, because Hooker is defending the Elizabethan status quo as a Christian society. And a Christian society is so by virtue of its sacral loci, which, in the Laws, are to be found neither among kings nor magistrates, but in the ordinary worship of parish churches or in a private act of lay confession, for when thou dost . . . put forth thy hands to the knees of thy brethren, thou touchest Christ; it is Christ unto whom thou art a suppliant;

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so when they pour out their tears over them, it is even Christ that taketh compassion.30 The relationship between the sacred and the state is far more oblique in Hooker’s Laws than, let us say, De regno Christi or Basilicon Doron, but it clearly still matters to Hooker, since he decided to include passages like the one quoted above in a political treatise. Sacral loci almost always matter in early modern political thought because they ground the possibility of a Christian social order. What makes a society Christian is not just that its people are mostly Christians, nor that Christianity is the state religion, but that grace and peace and eternal righteousness, what Milbank calls ‘transcendent principle[s],’ are at work in its midst, taming the powers of evil. The early modern attempts to identify where in a community this work takes place – to identify, that is, its sacral loci – are attempts to imagine the nature of Christian social order. And of course it makes a big difference what is identified as a sacred locus: king, priest, prophet, magistrate, the godly, the sacraments, the visible church, the moral law within, the law of Moses, or perhaps ‘true prayers / . . . From fasting maids whose minds are dedicate / To nothing temporal’ (Measure for Measure II.ii.156–9). Since the Reformation tore down so many of the old bridges between heaven and earth, in its aftermath – until people decided that politics was not the sort of thing that required supernatural assistance – questions about where and how transcendence enters time became both central and deeply controversial. The political thought of the period between the Act of Supremacy and the Restoration revolves around whether the state constitutes the primary locus of the sacred and, if so, in what sense; whether there were other sacral loci (the Church of Rome, for example) through which grace entered the social body, restoring and redeeming it. And these different sacral loci exfoliate into different visions of Christian society. Both Measure for Measure and its Elizabethan analogues seem to me best understood in terms of this extended cultural debate; they are stories about sacral loci, Christian social order, and the relation of Christ’s kingdom to England’s ‘sceptred isle.’ There are two preShakespearean English versions of the ‘monstrous proposal’ plot, where a magistrate offers to pardon a woman’s brother (or husband) in exchange for sex. One occurs in the second part of Thomas Lupton’s Too good to be true (1581), the Puritan disciplinary Utopia mentioned in the preceding chapter; whether or not Shakespeare knew the work

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– it is probable but not certain that he did – Lupton’s account differs so radically from Shakespeare’s that the contrast underscores the extent to which Measure for Measure stages a counter-narrative to the Puritan vision of Christian politics.31 The other Elizabethan analogue, Whetstone’s Promos and Cassandra (1578), is, as has long been known, Measure for Measure’s principal source. The differences between the two plays is complex and, for our purposes, extremely important. Promos and Cassandra includes a series of episodes that explicitly concern the relation of civil to sacred order, and in each case, Whetstone’s handling of his material makes perfect sense in terms of standard Elizabethan ideology and institutional practice. Measure for Measure follows the general outline of Whetstone’s play quite closely, yet it omits or alters these episodes, instead adding plot details that do not make obvious cultural sense but, like the episodes in Whetstone, also pretty clearly concern the relation of civil to sacred order (for example, the whole friar-duke business and Barnadine’s pardon). The two works diverge with significant consistency, although what is being signified remains to be seen. Too good to be true resembles Bucer and Baxter’s sacral polities, except that Lupton includes a monstrous proposal episode and thus explicitly connects the story that Measure for Measure will retell with issues of Christian social order. Too good to be true thus opens with a description of Mauqsun, Lupton’s ideal Christian state: a land of such blessed bishops, such perfect preachers, such virtuous ministers, such godly governours, such merciful magistrates, such just judges, such worthy laws, such charitable lawyers, such honest attorneys, such pitiful physicians . . . such good and plain dealing, such hospitality, such wonderful charity, such practicing of godliness, and such striving to do well, that . . . SIUQILA [an Englishman] did wonder at it, saying it is TOO GOOD TO BE TRUE.32 There being no wicked judges in this Christian Utopia, Lupton sets his version of the monstrous proposal in a neighboring state. The details of his story do not seem especially relevant; the ending, however, is astonishing: the ruler orders the wicked judge to be put to death, which is promptly carried out to the great delight of all. Since the episode begins with a plea for mercy and concludes with this act of justice, its moral trajectory reverses that of Shakespeare’s play.33 All Lupton’s stories follow this same trajectory. In his holy commonwealth, no one who breaks the law escapes punishment; as Siuqila

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repeatedly laments, England’s evils all stem from a pervasive failure in this regard.34 The rulers of Mauqsun, however, govern according to Christ’s golden rule: ‘Whatsoever you would that men should do to you, even so do ye to them.’35 There are no pardons, no exceptions, no appeals. If a rich man spurns a beggar, he shall be ‘compelled to sit in such poor, thin and beggarly rags, as the poor man did, in the open street, a whole day together’ (32); those who commit perjury have their tongues cut out (81); judges who accept bribes have the molten cash poured down their throats (2.L4v).36 The Mauqsunite traveller tells the much-impressed Siuqila how a judge sentenced two sadistic murderers to be done unto, as ye have done to the man you have killed . . . . you shall have both your hands cut off: then you shall have twenty wounds given you with a sword: then your throats shall be cut, and your faces shall be so mangled as you mangled his face: and when you are throughly dead, then you shall be cut into small pieces, and they shall be thrown abroad for the beasts and ravens to eat. None of his countrymen, the Mauqsunite concludes, ever again committed murder, ‘not so much for fear of man’s law as of God’s law.’37 This law is, of course, the golden rule, which the Mauqsunites interpret in a way that manages to collapse the Gospel into the lex talionis. Lupton’s monstrous proposal story, like all the stories in Too good to be true, exemplifies the workings of this Christian social justice, which punishes evildoers according to the strict rules of retribution: ‘An Angelo for Claudio, death for death / . . . and measure still for measure’ (V.i.402–4). In Mauqsun, as in other Platonic–Puritan utopias, the sacred lodges in rules and regulations; these are holy commonwealths because governed by ‘God’s law.’ But the divine also enters Mauqsun’s social order through other channels, particularly the mysterious godlike and godly officials, on whose just administration the kingdoms of the Laws and of Christ (and, oddly, of Shakespeare’s Vienna) also depend. Nearly every story in Lupton’s text, including the monstrous proposal episode, has a holy ruler-judge, who rights wrongs, sentences evildoers, rewards virtue, and, in general, sees that each gets done unto him what he did, or would have done, to another. For Lupton, the sacred inhabits the rules and the rulers who enforce them. He shows no interest whatsoever in political organization: we never learn, for example, how these ruler-judges got their authority; the limits, if any,

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on their powers; whether they govern according to laws (other than the golden rule), and if so, who makes these laws; whether their subjects have any rights. We are told only (and repeatedly) that this or that ruler was a ‘righteous & virtuous Judge,’ ‘a godly, virtuous, and an upright Judge,’ a ‘wise and virtuous Judge.’38 Lupton uses ‘ruler’ and ‘judge’ almost as synonyms; the stories in Too good to be true mostly take place in Mauqsun’s courtrooms where its holy men enforce God’s law, where God himself sometimes intervenes directly to save the day by miracle. He who watches over Mauqsun has not withdrawn very far. Rather, as one of its judges tells the contending parties assembled before him, ‘our good God . . . is now present in this place, and will not only hear all the whole matter from the beginning to the end, but also will pour his vengeance upon you, if you witness falsely,’ which, of course, is precisely what happens.39 Even the miracles in Lupton are acts of retributive justice. If Lupton’s text ‘lingered in Shakespeare’s imagination,’ Mary Lascelles wrote in 1953, ‘it must have owed its presence there to . . . [the] strangely retentive force of disgust.’40 One suspects he did know it precisely because Measure for Measure takes such fierce issue with its savage tit-for-tat model of Christian ethics; it is the only play of Shakespeare’s to have a biblical title, and the passage to which it alludes (‘and with what measure ye mete, it shall be measured to you again’)41 comes from the same chapter of Matthew’s Gospel as Lupton’s golden rule (Matt 7:2, 12). But, as I suggested earlier, even if Shakespeare had not read Lupton’s work before writing his play (and Whetstone could not have read it before writing Promos and Cassandra), Too good to be true is of interest because it links the monstrous proposal story to the question of what a Christian social order might look like, a question that it frames in terms of sacral loci. Virtually all Lupton’s stories focus on the sites where divine justice enters human community: Mauqsun’s bible-based law code, its wise ruler-judges, as well as the occasional last-resort miracle. But Whetstone and Shakespeare seem to use the monstrous proposal story in the same way: to reflect on the nature of Christian social order and the relation of the sacred to the state. In Promos and Cassandra, as in Measure for Measure, a ruler-judge mediates divine justice to both victims and agents of a corrupt society. Whetstone’s ruler-judge, whom the play denominates as King Corvinus of Hungary, comes in its final act to succor the oppressed, defend the weak, and punish wickedness in high places. He is the good Christian king of countless medieval and Renaissance sermons, tracts,

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and stories, who governs in the interest of the common weal and communal charity. He does not, unlike Shakespeare’s Duke, superintend the moral and spiritual well-being of individual subjects; he does not try to get them to repent or to prepare for death; he does not dress up as a friar, experiment with matchmaking, or pardon convicted murderers. The King mediates the sacred to the community in so far as he is the source of good government and social justice, yet one of the more striking features of Whetstone’s play is that the sacred is not concentrated in the person of the ruler but also exists at the margins and interstices of the state. There is an amazing episode near the beginning of the play.42 The preceding scenes have shown Promos, newly appointed governor of Julio with a special commission ‘to weed from good the ill, / To scourge the wights, good laws that disobey,’ vowing to ‘reform abuse’ (1.I.i). The next few scenes introduce various unpleasant lowlife characters – a mercenary courtesan, her fawning and devious pimp – so that when Promos reports on the early success of his crackdown, one is inclined to applaud the fact that 30 ‘damned wights’ have been ‘judged to die’ for committing ‘rapine, spoil, and theft’ (1. II. iii). Then the prisoners enter ‘bound with cords, Two Hacksters, one Woman, one like a Giptian, the rest poor Rogues, a Preacher, with other officers.’ They are singing: With heart and voice to thee O Lord, At latter gasp for grace we cry: Unto our suits good God accord, Which thus appeal to thy mercy. Forsake us not in this distress, Which unto thee our sins confess.43 One hackster begins a homily, confessing that he ‘deserved death long ere my theft was spied’ for innumerable ‘wicked deeds.’ The sermon ends, however, with a damning admission of another sort: ‘I go [to death] with these my mates, likewise for breach of laws, / For murder some, for thievery some, and some for little cause.’ These last words raise troubling questions. A couple of the other prisoners then speak, bewailing their sins, at which point a ‘catchpole’ (one of the arresting officers) interrupts, taunting the gypsy: ‘How now, Giptian? All amort, knave, for want of company? / Be crusty, man, the hangman straight will read fortunes with thee.’ The preacher at once turns to him in reproof: ‘With this thy scoffing speach, good friend offend him not, /

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His faults are scourged, thine scape (perhaps) that do deserve his lot?’ The next line is spoken by one of the condemned: ‘Jesus save me, I am cast for a purse with three halfpence.’ A guard cuts him off with ‘Dispatch, prating knave, and be hanged,’ and, the ‘Preacher whispering some one or other of the prisoners still in the ear,’ the prisoners file out, singing: Our secret thoughts thou, Christ, dost know, Whom the world doth hate in thrall. Yet hope we that thou wilt not so, On whom alone we thus do call. Forsake us not in this distress, Which unto thee our sins confess, Forsake us not, &c. (1.II.vii) On the Platonic–Puritan model, a scene like this would be inconceivable; neither Plato nor Bucer nor Lupton nor Stubbes allows the possibility that civil justice, which requires that criminals be punished for their crimes, might have little to do with eternal justice or Christ’s Kingdom. The convicts’ psalm-like prayer, which begins and ends the scene, movingly underscores the ‘space / Betwixt this world and that of grace,’ between the state, which punishes criminals, and Christ, who has mercy on sinners and does not despise the wretched in their wretchedness. So too the preacher’s reminder that those whom the law condemns may be no more sinful than those who condemn them uncouples the legal order of the state from the different and deeper judgment of God. And from the different and deeper judgment of the church – since, of course, it is the preacher who rebukes the ‘scoffing catchpole’ and who does not forsake ‘poor Rogues’ in their distress.44 This scene has no direct bearing on the plot, neither the preacher nor the prisoners being mentioned again. The episode is nevertheless crucial, since it places the relation between the sacred and the state at the heart of the action. In the first half of the play, as the foregoing suggests, the cities of God and man preserve an Augustinian distance. This is not quite Foxe’s contrast between Christ’s persecuted flock and its diabolic persecutors; shortly before the prisoners scene, Promos remarks, and I can think of no reason he would be lying here,

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‘Tis strange to think what swarms of unthrifts live Within this town by rapine, spoil, and theft: That were it not that justice oft them grieve, The just man’s goods by rufflers should be reft. (1.II.iii) The magistrate has a sword precisely in order to bring thieves and hooligans to justice so that honest folk can enjoy their goods in peace. This is what the state is supposed to do, but its ends are therefore not those of Christ’s kingdom. In the second half of Promos and Cassandra, the King’s entry draws the sacred back into the political center; the end of the play stages the restoration of Christian social order. Yet if divinity mantles Whetstone’s King, throughout the play one glimpses its presence elsewhere, hallowing unexpected loci. When the jailor receives orders to execute Andrugio (the counterpart to Shakespeare’s Claudio), he disobeys and instead helps the young man escape into the neighboring wilderness. As in the prisoners scene, the language suddenly takes on sacral resonance, the jailor explaining to Andrugio that ‘God it was within my mind that did your safety move,’ and then, once the latter has fled, affirming in soliloquy both the goodness of God, who, ‘although awhile he let the wicked reign, / Yet he relieves the wretch in misery,’ and his own moral right to defy the magistrate’s authority: God’s will be done, who well Andrugio speed! Once well, I hope to hear of his good luck, For God thou knowest my conscience did this deed, And no desire of any worldly muck. (1.IV.v) Since the King knows nothing about Andrugio’s escape, he does not orchestrate the final reunion of the lovers, but when Andrugio discloses his identity – to save Promos from being executed for murder, and at great risk to himself, since he is still under sentence of death – the King grasps that ‘God’s pleasure is that thou should’st pardoned be’ (2.V.v). In Promos and Cassandra, the sacred operates in the world through the King, but also through the ministrations of a prison chaplain, a jailor’s illegal act of charity, and the mysterious workings of grace. I am not sure that the play can be identified with a specific politics. The complex and partially decentered relation it describes between the

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sacred and the state seems characteristically Elizabethan. The prisoners scene evokes the Christian populism of the mid-century reformers and the Piers Plowman texts, with their deep sympathy for Christ’s poor; the jailor’s conclusion that God is on the side of conscience rather than law echoes countless of Foxe’s martyrologies; the play’s depiction of Christian social order as emerging at various discrete sacral loci recalls the wonderful frontispiece to the 1612 edition of Hooker’s Laws, where the rays that emanate from the divine light at the top center fall on three separate and equidistant figures representing the king, the church, and the private individual, more or less the same triad as Whetstone’s king, preacher, and jailor.45 The most startling thing about Promos and Cassandra is how different it is from Shakespeare’s play. Measure for Measure, of course, eliminates the prisoners scene, and has the Provost – the same character as Whetstone’s jailor – refuse to disobey the warrant for Claudio’s execution, an order the Provost believes unjust, until he receives explicit written authorization from the Duke to do so (IV.ii.145–83). All the dispersed sacrality of Whetstone’s play comes together and reconstellates around the figure of the Duke. He occupies all the play’s sacral loci: priest-confessor, fiery-tongued prophet (V.i.286–344), rulerjudge. When, during the trial scene, the Duke’s identity is suddenly revealed, Angelo responds as if to a theophany: Oh, my dread lord, I should be guiltier than my guiltiness To think I can be undiscernible When I perceive your grace, like power divine, Hath looked upon my passes. (V.i.359–63) Depending on one’s point of view, there is something distinctly creepy, or Christlike, about all this. We are not used to the full-blown sacral rulers of high Christian royalism; that is to say, we are not used to thinking about early modern kingship in terms of the monarch’s likeness to God, rather than his conflict with Parliament.

Sacred kingship The belief that rulers somehow mediated, represented, or reflected divinity survived for centuries. We have already mentioned Plato’s shepherd-daemons and godlike lawgivers, and their atavism in

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Puritanism’s godly magistrates who constrain the wayward race of ordinary humans down the straight and narrow paths of righteousness. In their surveys of late antique political thought, John Procope and D.M. Nichol both note the pervasive sacralization of monarchy: the king ‘imitate[s] God’s rule of the universe’; as ‘God’s vicegerent or viceroy on earth,’ he presides ‘over a monarchy that reflected the higher and more perfect order of heaven.’ In some of the pagan texts he becomes Plato’s shepherd-daimon redux: a ‘“diviner being, fashioned by the King of the gods in his own image” . . . intermediate between gods and mortals.’46 That the king serves as God’s viceroy, his rule an image of God’s universal monarchy, remain political commonplaces throughout the Middle Ages.47 Yet this statement needs qualification, since medieval theologians generally regarded the church rather than the crown as the true bearer of the holy; thus while Aquinas holds that kings govern their subjects ‘in God’s place,’ he also confines their rule to temporalia, the ministry of Christ’s kingdom having been ‘entrusted not to earthly kings but to priests, and especially to the Highest Priest.’48 In fact, Thomas’s Aristotelian and largely secular politics does not allow much room for sacral kings. Precisely because the major innovation in late medieval political thought is this secularized model of the state, one tends to assume a corresponding decline of theocratic and sacral ideas after Aquinas, and certainly after Machiavelli.49 Yet Giles of Rome’s extremely popular De regimine principum (1277–9) depicts a fully sacral ruler – in Giles’s wonderfully qualified Latin, ‘quasi semideus’ and ‘quodammodo quid divinum’50 – who governs with perfect justice for the common good and can therefore be trusted with nearly unlimited power. Nor was Giles alone in this view.51 Historians note both the wide appeal of this all-powerful semi-divine monarch in fourteenth-century French political thought, as well as the ‘significant current of opinion in England that held French views, even on the king as healer and quasi-priest,’ a current that flowed well into the early modern period, so that in the fifteenth-century Fortescue could describe the body politic of kingship ‘as a likeness of the “holy sprites and angels,” because it represented, like the angels, the Immutable within Time,’ and in the sixteenth century Elizabethan lawyers could develop a ‘crypto-theological’ analysis of royalty based on the christological paradoxes of the Athanasian symbol.52 The persistence of sacral kingship through the Stuart era takes one by surprise, mostly because it exists alongside naturalistic, and even aggressively demystified, political discourses. Neither Aristotle’s repub-

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lican constitutionalism nor Suetonius’ and Tacitus’ appalling portraits of Rome’s divinized emperors were obscure texts in late sixteenthcentury England, and the Silver Latin historians in particular strongly imply that the rhetoric of imperial caelestitudo proffered an early form of what Goebbels termed the ‘Big Lie.’ It seems hard to imagine that men who had read the Lives of the Twelve Caesars and the Annals could have taken the notion of sacral kingship seriously. Quite clearly, they often did not. In his journal, Sir Roger Wilbraham recounts how the Speaker and Lord Keeper opened the 1601 Parliament with orations lauding ‘the divine inspiration’ of Elizabeth’s ‘sacred spirit’; in a letter to Chamberlain, Dudley Carleton, describing the same event, dismisses it as ‘interchangeable flattery.’53 One could easily multiply examples of such demystified assessment, yet it simply does not follow that the Elizabethans found sacral kingship absurd. Had they found it so, it could not have worked as flattery. No one currently flatters an American president (nor, I suspect, even the British Queen) in such terms. They were useable, whether for flattery or homage, only because sacral kingship remained a cultural ideal and possibility.54 Hence the English reaction to Basilicon Doron, with its thick larding of ‘divine & supernatural’ royalism, was not horror, nor even Carleton’s amused contempt, but hope. Bacon describes how the book – first printed in England within a week of the Queen’s death, and running through edition after edition over the next few months – ‘falling into every man’s hand filled the whole realm as with a good perfume, or incense, before the King’s coming in’; and Camden reports that it was ‘incredible . . . how many men’s hearts and affections he won unto him by his writing of it, and what an expectation of himself he raised amongst all men, even to admiration.’55 Sacred kingship lies at the core of high Christian royalism, distinguishing it from the more secular, Aristotelian royalism of men such as Hooker and Sir Thomas Smith, but also from what we think of as divine right absolutism. Modern historians of Stuart political thought generally understand this latter position as the opposite of the view that power derives from the community, which can, for its own benefit, confer this power, with or without conditions, on an individual, who thereby becomes its ruler; that is, in modern historiography, the royalist position – divine right absolutism – is dialectically tethered to its parliamentary antithesis, as one side of the constitutionalist struggle over who has power and under what, if any, limitations.56 Yet in large part this struggle post-dates 1604. High Christian royalism does not operate in terms of constitutionalist

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categories; it is not a theory about the authority of the crown vis-à-vis the liberties of the subject or the proper balance between the prerogative and Parliament, but rather a belief, as the contorted phraseology of the ‘Homily against Disobedience’ puts it, in a ‘similitude’ that kings ‘have or should have, not unlike unto God their king‘: a belief that discloses itself in the Elizabethan rituals of ‘honor and reverence’ whereby ‘no man speaketh to the prince nor serveth at the table but in adoration and kneeling’; in the haunting scenes when crowds of sick persons thronged the defeated, dethroned Charles I to be healed by his touch; and, above all, in the recurrent affirmations of a divinity hedging the crown – affirmations that seemed to need neither explanation nor defense.57 These do not specify the basis of royal authority or its constitutional parameters, but rather identify the king as sacral locus and vestigia Dei, as the one through whom, in Fuller’s words, ‘the Most High ruleth in the kingdoms of men.’ Erasmus thus describes a good king as ‘a sort of celestial creature, more like to a divine being than a mortal . . . sent by the God above to help the affairs of mortals by looking out and caring for everyone and everything.’58 Such hallowing, as one might anticipate, suffuses the Homilies and James’s meditations of the 1590s on kingship, but the Puritan Stubbes uses the same language for Elizabeth: ‘Her Grace seemeth rather a divine creature, than an earthly creature, a vessel of grace, mercy, and compassion, whereinto the Lord hath poured even the full measures of his superabundant grace, and heavenly influence.’59 Stubbes does not often write like this, but the fact that he could do so warns against viewing high Christian royalism as what we mean by a political party. (There were no political parties in late Elizabethan England; it is an inappropriate model.) The language of sacral kingship could be mobilized against Rome, against Geneva, against Parliament, but its sharp edges are perhaps less important than its diffuse plausibility. As Holdsworth points out, Tudor–Stuart political thought in general ‘wished to make the king something more than a natural man, by concentrating attention upon, and by attributing to him personally, the supernatural qualities with which his office was invested.’60 In his tract on the royal prerogative, written in the same year as Measure for Measure, Lord Chancellor Ellesmere thus holds that the king ‘is the substitute of God immediately . . . [and] hath by participation with God . . . a discretion, judgment, and feeling of love towards those over whom he reigneth, only proper to himself.’61 Sometime after 1604 such rhetoric acquires a polemical valence, yet it was never simply the language of divine right absolutism, since those at the other end of the

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political spectrum from James and Ellesmere will still, on occasion, imagine kingship in the same profoundly theological terms. Coke thus refers to James as ‘God’s lieutenant’ and ‘over us all the Lord’s anointed . . . next under Jesus Christ our supreme governor.’62 Even Pym as late as 1641 can assert that ‘all sovereign princes have some characters of divinity imprinted on them . . . that they should exercise a goodness proportionable to their greatness.’63 Such language could serve various ends. (Pym, for example, was urging Stafford’s impeachment.) Since, Conrad Russell argues, early modern Englishmen generally held that authority either came from God or it was no authority, to claim that this or that authority existed by divine right could simply mean that it was legitimate.64 There is a danger here, one that Russell does not wholly avoid, of ironing out the sacral dimension of Tudor–Stuart political thought to make it line up with our own concepts and questions. The claim that authority comes ‘from God’ implies something more than what we mean by legitimacy, something about the nature and end of that authority as well as its basis. The infamous (and actually quite interesting) ‘Homily against Disobedience and Willful Rebellion’ (1570) thus explains ‘that there be kings . . . and other governors’ results not from ‘the ambition of mortal men and women climbing up of their own accord to dominion,’ but rather that all kings, queens and other governors are specially appointed by the ordinance of God. And as God himself, being of an infinite majesty, power and wisdom, ruleth and governeth all things . . . so hath he constituted, ordained and set earthly princes over particular kingdoms . . . that the princes themselves in authority, power, wisdom, providence and righteousness . . . should resemble his heavenly governance.65 The authority deriving from God is legitimate – morally as well as politically – because it is not a matter of winning the race up dominion’s ladder. The fact that the government of earthly princes comes from God also determines (and discloses) its telos, which, for the homilist quite as much as for Bucer and Baxter, is to resemble divine governance. God ordains princes so that they might shadow forth the goodness and wisdom of His ‘heavenly monarchy,’66 exercising, in Pym’s words, ‘a goodness proportionable to their greatness.’ There is a divine right of kings but there are also, again in Pym’s words, ‘characters of divinity imprinted on them.’

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As mentioned above, the Tudor–Stuart fascination with royal sacrality – its value as a legitimating principle as well as its cultural power – owes much to the Reformation and the need it precipitated to re-identify the holy places and persons where divine order entered English society. In the years immediately following the Act of Supremacy, its defenders write of the king as ‘represent[ing] unto us the person even of God himself,’ as ‘God’s minister, unto whose charge God hath committed this realm.’67 A ‘minister of God,’ then as now, refers to a priest (as opposed to, for example, ‘a minister of finance’).68 This understanding of kings as sacred in a quasi-sacerdotal sense persists through the early seventeenth century, most notably in the revival of the late medieval notion of the king as a mixta persona, a compound of priest and layman. In Basilicon Doron, James reminds Prince Henry that ‘by your calling ye are mixed . . . betwixt the ecclesiastical and civil estate: for a king is not mere laicus, as both the Papists and Anabaptists would have him, to the which error also the Puritans incline over-far.’69 By asserting the king’s priestly aura in the teeth of papal and presbyterian claims that rulers, whatever their temporal eminence, are mere laypersons and hence subject to the church, the passage underscores the link binding the sacral/sacerdotal king of high Christian royalism to the urgent post-Reformation contest over whether the state should or could be the primary bearer of the sacred.70 James wrote Basilicon Doron shortly before assuming the English throne, so his ‘ecclesiastical . . . estate’ may refer to his anticipated royal headship; the Scottish king was not head of the Kirk. James’s selfdescription as mixta persona is bound up with his claim to be king of men’s souls – a crucial claim and one that will be the subject of the final chapter. Bacon likewise invokes the king’s mixta persona but in the context of the tension between the royal prerogative and the common law rather than, as in Basilicon Doron, between crown and church. Arguing the case of the post-nati, Bacon notes that, whereas in a republic magistrates are elected, which elections ‘do pre-suppose a law precedent . . . to guide and direct them,’ kings do not depend on pre-existing laws for their authority, for monarchy is not political but natural, like ‘the government of God himself over the world.’ This ‘conformity of a monarchy with the divine Majesty’ is why among both heathens and Christians ‘the word, sacred, hath been attributed unto kings.’ Hence, Bacon continues, according to English law ‘“Rex est persona mixta cum sacerdote;” an attribute which the senate of Venice, or a canton of Swisses, can never challenge.’71 Bacon, that is,

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associates the king’s priestly character with the absolutist premise that royal authority is not created by and therefore not bound by common law – another crucial claim, this one to be taken up in the third chapter. The reason for mentioning that the claims associated with the mixta persona will form the subject of subsequent chapters is not just to excuse their not being discussed here, but to indicate that these claims turned out to be important (which is why they get two out of the four chapters). The monarch’s spiritual jurisdiction and extra-legal prerogative are corollaries of sacral kingship and central aspects of high Christian royalism. That the representation of the king as a mixta persona gets associated with these claims helps make sense of Shakespeare’s Duke, who does not simply disguise himself in a friar’s habit, but acts as a priest – hearing confessions, preparing the souls of the dying for eternity, counselling sinners – and who also both exercises spiritual jurisdiction and overrides the law. Since English kings were not clergymen, his disguise is literally sacrilegious imposture, yet, as has already been mentioned, the play nowhere suggests that the Duke’s actions are improper; the point of his taking on a friar’s role and garb, over and above its utility as a plot device, seems to be rather to indicate, to gesture toward, the sacerdotal nature of royal authority, and thus what it means to bear ‘the sword of heaven.’72 The language of sacral kingship idealizes. This may be comically obvious, but, since idealization sometimes gets confused with naïveté, it is worth adding that early modern people knew well enough that many kings lacked visible evidence of divine imprinting. No one denied the existence of wicked monarchs. The language of sacral kingship defined an ideal: namely, the ‘similitude of government’ that kings ‘have or should have, not unlike unto God their king.’ At present, the academy does not like ideals, especially not in politics, yet it is hard to imagine a political commitment whose entelechy is not an ideal; liberty and justice for all, cultural diversity, equal rights designate what should be. Such terms lay claim to define the true nature (in Aristotle’s essentialist-teleological sense) of democratic polity in the same way that the language of royal sacrality lays claim to define the true nature of kingship. Defining something’s true nature in terms of what it should be makes sense because ideals have substantive import: thus, to say that ‘earthly kingdoms well governed’ resemble ‘the heavenly monarchy’ or that a democratic society respects cultural diversity is to affirm a specific and contested political vision. One cannot work for the good without having some sense of what it might be.

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What makes sacral kingship so alien to modern political thought is not its ideality per se but that the ideal is not, like gender equality, a state of affairs; nor, like republicanism, a constitutional form; nor, like the pursuit of happiness, a legally protected right; but rather a person – the godly and godlike ruler. This is a deeply un-American notion. Yet, in one form or another, it goes back to antiquity; as we have seen, even in works where the laws become the primary bearer of the sacred, such rulers reinsinuate themselves as the laws’ author and executor. The notion suffuses pre-modern Christian cultures, maybe because it conforms to the doctrine of the Incarnation, of the logos assuming human nature, maybe because (as a colleague of mine suggested) medieval persons, being mostly illiterate, thought in terms of stories and persons rather than concepts. One sees it everywhere in English churches, given visible expression in stone and glass, in the countless human forms that gaze down from wall, window, and column. The central figures are always biblical – Christ, the Blessed Virgin, the apostles. Here and there, mostly on the capitals and misericords, one sometimes finds ordinary folk engaging in the ordinary business of life – a man pulling a thorn from his foot, another with toothache grimacing, workers engaged in the seasonal labors of the agricultural cycle. But there are also the omnipresent figures of the saints, the holy men and women who look down with grave tranquillity from the great medieval reredos, screens, and stained glass that somehow managed to survive not only the Reformation but the far more thoroughgoing iconoclastic campaigns of the Interregnum. For those who learned their hagiography from Foxe’s Acts and Monuments it comes as a surprise how many of the saints wear crowns. One notes them time and again on the majestic statues that occupy the nearly 300 tiered gothic niches adorning the thirteenth-century west façade of the cathedral at Wells; on the solemn, bearded figures arrayed across the middle rank of Exeter’s fourteenth-century frontal screen which covers the west end of the cathedral like an immense reredos; in the richly colored, fifteenth-century stained glass of the York Minster windows depicting the sovereign-saints of England.73 There is something about the massing, height, and dignity of these figures, particularly at Wells, that can still evoke, if only fleetingly, the power and plausibility of sacral kingship. The Christian kings and queens who stand beside martyrs, archangels, and evangelists in these consecrated spaces appear ‘like to a divine being . . . sent by the God above to help the affairs of mortals,’ bringing the ‘people and countries committed to their charge . . . [the] similitude of heavenly government . . . [and] blessing of God’s mercy.’74

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The godly prince and the pirate king The personalist emphasis of sacral kingship makes it crucially important that the ruler be morally good. I have already mentioned Baxter’s claim to this effect in Holy Commonwealth, but a century earlier the ‘Homily against Disobedience’ had insisted upon the same point: Unto the which similitude of heavenly government, the nearer and nearer that an earthly prince does come in his regiment, the greater blessing of God’s mercy is he unto that country and people over whom he reigns. . . . For it is indeed evident . . . that the maintenance of all virtue and godliness, and consequently of the wealth and prosperity of a kingdom and people, does stand and rest more in a wise and good prince . . . than in great multitudes of other men, being subjects. For both the homilist and Baxter, what matters is the ruler’s wisdom and goodness, not his economic policy or ability to work with Parliament.75 This stress on the prince’s moral virtue is inseparable from his sacrality; sacral kingship entails that the prince ‘represent unto us the person even of God himself’ not as an actor represents a character but as a priest at the altar represents Christ – or as the Duke makes Angelo ‘In our remove . . . at full ourself’ (I.i.43). A good actor need not be a good human being, but a priest who is not himself good cannot be a good priest.76 A ruler’s need for moral purity forms a recurrent theme in James’s writings – as it does in Measure for Measure. The King thus reminds his son at the opening of Basilicon Doron that this glistering worldly glory of kings is given them by God to teach them to press so to glister and shine before their people in all works of sanctification and righteousness that their persons, as bright lamps of godliness and virtue, may, in going in and out before their people, give light to all their steps.77 To illuminate the paths of righteousness for his subjects, it is not enough that a king govern justly – not enough that he administer ‘good laws . . . [and] protect his people’ – but he must also join ‘therewith his virtuous life in his own person . . . by good example alluring his subjects to the love of virtue.’78 The king must be virtuous because his glistering public visibility leaves him open to scrutiny and scandal,

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but also, as James propounded to the Star Chamber judges in 1616, because all good kings in their government must imitate God and His Christ in being just and righteous; David and Solomon, in being godly and wise. . . . To be godly is that the fountain be pure whence the streams proceed; for what avails it though all his works be godly, if they proceed not from godliness. To be righteous is to a man’s self. To be just, is towards others. But justice in a king avails not unless it be with a clean heart; for except he be righteous as well as just, he is no good king. . . . For kings sit in the throne of God.79 The assertion that good works must proceed from a clean heart has a Protestant ring,80 but James associates this claim with the specific nature of the king’s imitatio Dei, not with the theology of justification. Despite his acute sense of how kings ‘are as it were set . . . upon a public stage in the sight of all,’ his understanding of the way in which kings imitate the persons of the Trinity and of the saints is wholly antitheatrical.81 The sacral character of the mimesis forbids any disjunction between the royal persona and the royal person; it is essential that the imitation of God be a true likeness, not role-playing, for the obvious reason that the street name for make-believe godliness is hypocrisy, the white devil. The opening lines of the Friar-Duke’s soliloquy, ‘He who the sword of heaven will bear / Should be as holy, as severe’ (III.ii.223–4), compress James’s point into a gnomic couplet: the explicitly sacral character of the ruler’s authority, the link between that sacrality and the necessity of a good ruler’s being a good man, the consequent refusal to sever public from private identity. James’s observation about ‘godly’ applies equally to the Duke’s ‘holy’: they characterize a life totaliter, the heart’s pure fountain, together with the good works that stream from it. (Thus even now to describe someone as holy or godly in public implies that he is in fact neither.) The Friar-Duke’s soliloquy, its trochaic tetrameter couplets calling attention to its own significance like the little pointing hand in the margin of Renaissance books, restates in mnemonic aphorisms the play’s recurrent evocations of the good ruler/good man thesis.82 It is, of course, central to the plot of Measure for Measure, in which an interim ruler, having yielded to unrighteousness (to borrow King James’s distinction), also and ineluctably becomes unjust; but it is also

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echoed and explored in the dialogue, which repeatedly circles back to the question of why the good ruler must be a good man. The Friar-Duke’s soliloquy thus picks up on his conversation with Escalus, who had expressed concern over Angelo’s harsh enforcement of the anti-fornication statute. To this the Friar-Duke replies that if Angelo’s ‘life answer the straitness of his proceeding, it shall become him well,’ if not, ‘he hath sentenced himself’ (III.ii.215–20) – a curious response, since it ignores the objective rightness or wrongness of Angelo’s judicial rigor, instead focusing on whether the Deputy’s private behavior corresponds to his official persona. Escalus then departs, and the Friar-Duke begins to reflect aloud on the larger political implications of this last fragment of conversation; we have already mentioned its opening lines (‘He who the sword of heaven will bear,’ etc.). The verses that follow attempt to explain this dictum on the grounds that a ruler ought not condemn offenders ‘for faults of his own liking’ and transgressions that he excuses in himself (III.ii.227–30). A ruler who is as weak and sinful as other people has no right to judge them, which is precisely the reason the bearer of heaven’s sword must be a holy man.83 Yet to argue that the exercise of public authority requires personal holiness because it is morally impermissible to punish another for ‘self-offenses’ leaves unanswered the objection Angelo raised earlier: The jury passing on the prisoner’s life May in the sworn twelve have a thief or two Guiltier than him they try: what’s open made to justice, That justice seizes. What knows the laws That thieves do pass on thieves? (II.i.19–23) By implication, Angelo’s moral character has no necessary bearing on his public administration of justice, since, as he later tells Isabella, ‘it is the law, not I, condemn your brother’ (II.ii.83). This seems a telling point, yet Angelo subsequently reverses himself and, in a moment of bitter self-knowledge, recognizes that to possess Isabella he is willing to topple not only his own moral identity, but the foundations of civic moral order as well: ‘Thieves for their robbery have authority/ When judges steal themselves’ (II.ii.180–1). If the ruler (or judge) is not a good man, he cannot be a good ruler. The link between the ruler’s private virtue and his public authority becomes clearer when the good ruler/good man leitmotif resurfaces in

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Act IV. The Friar-Duke and Provost having met in the prison where Claudio is awaiting execution, the former hints at the possibility of Angelo’s relenting, to which the Provost grimly replies, ‘It is a bitter deputy.’ The Friar-Duke, who does in fact expect a pardon to arrive at any moment, allows himself a brief indulgence in dramatic irony, countering the Provost’s muted censure with a Not so, not so: his life is paralleled Even with the stroke and line of his great justice: He doth with holy abstinence subdue That in himself which he spurs on his power To qualify in others. Were he mealed with that Which he corrects, then were he tyrannous. (IV.ii.65–71) ‘Tyrannous’ is an interesting choice of words. The excursus at the end of the first chapter cited passages where sensual vice per se becomes the mark of the tyrant, but the Friar-Duke seems to be making a somewhat different point. A ruler becomes tyrannous not because he fails to abstain from vice, but because he does not subdue ‘in himself [that] which he spurs on his power / To qualify in others’; because, that is, he exempts himself from the laws – from the restraints and prohibitions on desire – he imposes on his subjects. His personal conduct thus profoundly affects the nature of his authority. The fact that a ruler allows himself pleasures his own laws forbid, while condemning lesser men for doing the same, perverts heaven’s sword. To punish for faults of one’s own liking is in effect to endorse the principle that might equals right, or, in Leona Helmsley’s memorable phrase, only little people pay taxes.84 Isabella makes this point explicitly in pleading for her brother’s life: while the powerful, she tells Angelo, ‘err like others,’ yet their authority has ‘a kind of medicine in itself / That skins the vice o’ th’ top,’ hiding their own ‘guiltiness’ both from the lash of conscience and from the long arm of the law, so that great men who jest with saints are thought witty, but if a lesser man does the same, he becomes guilty of ‘foul profanation’ – a hypocritical rigor that strips power of moral legitimacy and ‘makes the angels weep’ (II.ii.126–45). This is the point Lear makes in his savage and heartbroken diatribe: Thou rascal beadle, hold thy bloody hand! Why dost thou lash that whore? Strip thy own back. Thou hotly lusts to use her in that kind

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For which thou whipp’st her. The usurer hangs the cozener. Through totter’d rags small vices do appear; Robes and furr’d gowns hide all. (IV.vi.156–61) King Lear and Measure for Measure almost certainly belong to the same period: contemporary documents mention a performance of Measure for Measure on St Stephen’s Day, 1604, of King Lear on St Stephen’s Day, 1606, on both occasions before King James as part of the Christmas revels. Lear’s example of the whore and beadle brings his diatribe very close indeed to Measure for Measure. Both plays focus on sexual desire at the point where it collides with and deconstructs political authority. In both, it is precisely the universality of desire that makes it so politically damaging; the fact that, in the Provost’s words, ‘All sects, all ages smack of this vice’ (II. ii. 4), means that in cases of sexual transgression those passing judgment are no different from those on whom judgment is passed, except that the former hold office. The absence of any moral difference between the authorities and their victims changes the administration of justice into an exercise of power.85 As we have seen, Sir Thomas Smith had already come to more or less this conclusion in the early years of Elizabeth’s reign: namely, that in every commonwealth the ‘part which doth bear the rule’ enacts into law ‘that which is profitable to it’; hence ‘just or law’ turn out to mean whatever benefits that commonwealth’s ‘ruling and most strong part.’86 From a Christian standpoint, this is intolerable. Thus Whetstone’s Promos and Cassandra, like Measure for Measure, depicts political corruption as a form of hypocrisy: the magistrate punishing faults of his own liking, using the cloak of law and the furred gowns of authority to commit injustice with impunity. In the second part of Whetstone’s play, a virtuous counsellor portrays the nightmarish collapse of good government that Promos, distracted by lust, had allowed: ‘Tis more than strange to see with honest show What foul deceits lewd officers can hide; In every case their craft they color so As still they have strict law upon their side. These cunning thieves with law can lordships steal, When for a sheep the ignorant are truss’d; Yea, who more rough with small offenders deal Then these false men, to make themselves seem just. (2.II.v)

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Whetstone’s understanding of political injustice is the same one at which Angelo arrives: that ‘thieves for their robbery have authority / When judges steal themselves.’ Both echo centuries of Christian social thought in which hypocrisy – rulers condemning their subjects for ‘self-offenses’; law as a means by which the powerful regiment and intimidate the populace – becomes the root of political evil.87 The locus classicus for this view is probably Augustine’s summary definition of an unjust polity as a gang of thieves (latrocinia), a definition Luther weaves into his own extraordinarily powerful variations on this theme. In his early Lectures on Romans, composed while he was still an Augustinian monk, he thus fiercely turns on princes and the powerful lords [who] are of course not thieves and robbers but . . . nevertheless do the things that thieves and robbers do . . . . Thus blessed Augustine in his book, On the City of God, says: ‘What are the great empires but great dens of thieves?’ And he adds the following story: ‘When Alexander the Great asked a pirate who had become his prisoner of war what business he had to make the sea unsafe, the pirate in boldest defiance answered, “What business do you have to make the whole world unsafe? To be sure, I do this with a small boat, and I am called a robber; but you do it with a huge fleet and are called an emperor for it.”’ . . . thus the big thieves act as judges of the little thieves. Do you suppose, O man, that when you judge those who do such things and yet do them yourself, you will escape the judgment of God?88 Preaching on Matthew 7 nearly two decades later, Luther redeploys the same critique against religious hypocrisy: It is wrong when the big thieves hang the little ones, as the saying goes, and the big villains condemn the little ones. . . . While the big thieves steal publicly and rob incessantly, the little thieves have to call them ‘pious’ and be willing to hang for them and to pay for them.89 Luther’s view of ‘robes and furr’d gowns’ differs little from Smith’s, but for Luther – as for King Lear – the fact that those who judge are no better, morally speaking, than the men they are judging, renders their authority illegitimate. ‘None does offend, none, I say none.‘90 If injustice means punishing others’ trespasses while giving one’s own ‘sensual race the rein’ (II.iv.161), it becomes clear why Angelo’s

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private morals are crucially relevant to the justice of his sentence against Claudio – why the play seems to attach more significance to Angelo’s unrighteousness than to the perversity of Vienna’s anti-fornication statute. The latter is merely a bad law; the former exemplifies the deep structure of political corruption. But the Friar-Duke’s ‘He who the sword of heaven will bear’ speech, which censures the hypocritical severity of his deputy, does so by invoking the premises of sacral kingship, and thus points to a link between them. King James, as we have seen, makes the same link in his 1616 Star Chamber address, whose second paragraph begins by considering how rulers ‘must imitate God and his Christ’ and ends with the pronouncement that ‘Kings sit in the Throne of God,’ but between these two assertions of sacral kingship argues at some length that unless a king be righteous as well as just, he is no good king; and whatsoever justice he doeth, except he doeth it for justice sake and out of the pureness of his own heart . . . such justice is unrighteousness and no true justice.91 The speech, like Shakespeare’s play, suggests that the big thief who punishes little thieves is the negative counterpart of the sacral ruler, the Deputy of the the Duke. The politics of Measure for Measure hinges on the two-fold contrast between these figures. As advocate and enforcer of sexual regimentation, Angelo, as previously suggested, represents the Puritan understanding of the regnum Dei in contrast to the quite different vision of Christian society figured by the Duke’s actions. But in addition, while Angelo’s hypocrisy is consistant with his (stage) Puritanism, his punishing of others for self-offenses means that he also stands for unjust or tyrannous authority – Luther’s big thief – in contrast to the Duke as bearer of heaven’s sword. Both ways of framing the contrast map, as it were, the English political landscape in the years immediately before the antithetic pairings of Whig history – crown versus Parliament, absolute monarchy versus the ancient constitution, and so forth – come into play. This chapter has dealt only with the second contrast – that between unjust and just authority, between the latrocinia and sacral rule – although I will return to the first later, since it is not yet clear what the Christian social vision implicit in the Duke’s conduct amounts to. The second contrast belongs to the imagined politics of high Christian royalism; it is not, that is, a contrast between two different ideological

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camps (as, for example, absolutists and republicans) but between images of good and bad power internal to a single political vision. The way the play configures the relation between the Duke and Angelo has been shaped by a mode of thinking about politics, about the line dividing good from bad power, to which the constitutional issues of the ensuing decades remain largely irrelevant. A passage discussed above from the ‘Homily against Disobedience’ points to the crucial earlier division. It lays out two possibilities: either ‘kings, queens and other governors’ are ‘specially appointed by the ordinance of God’ so that temporal government might ‘resemble his heavenly governance’ or they are self-fashioned by ‘the ambition of mortal men and women climbing up of their own accord to dominion.’92 The alternatives are not divine right versus popular election, but divine mimesis versus private ambition. Sacral kingship writings, generally speaking, operate in terms of these two starkly different alternatives. On the one hand, there is a sort of government that resembles the monarchy of heaven; in which the ruler sits upon God’s throne and bears his sword; a quasi semideus and quasi sacerdos; like to God in justice, wisdom, righteousness, and authority; supernaturally graced with ‘a discretion, judgment, and feeling of love towards those over whom he reigneth only proper to himself’;93 the mediator of divine benediction and benificence to an entire people. On the other hand, there is the latrocinia, the government in which big thieves in furred robes execute poor men for stealing, while the beadle lashes the whore for faults of his own liking; whose laws regiment lesser fry for the benefit of their rulers; where office is not a divine gift but won and lost in the violent free play of Machtswillen. Both Promos and Cassandra and Measure for Measure imply that were there no sacral ruler to bring peace from above, it would be every man for himself and winner take all. The authorities in Whetstone’s play run the gamut of corruption, from the city’s perjured, lecherous governor to its petty officialdom of conmen, bullies, and informants. By the final scene of Measure for Measure, even a good and experienced magistrate like Escalus has been drawn into the vertiginous spiral of lies, betrayal, and calumny, and ends up howling for innocent blood (V.i.301–42). Yet in both plays, the eleventh-hour return of the sacral ruler keeps the harmless flock from the depredations of ‘appetite, an universal wolf, / . . . doubly seconded with will and power.’ There is a temptation to read this as the supersession of realism by wishful thinking. Yet, as polarities within the framework of high

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Christian royalism, both sacral rule and the latrocinia figure political realities. That is to say, the former is not how we wish things were, the latter how things, alas, are. They both exist. The polarities of high Christian royalism are thus irreducible, which means that this political model constitutes a true dualism: unlike, significantly, those of Machiavelli and Hobbes, where in both cases the crucial first move is to insist upon a single reality – Hobbes’s ‘perpetual and restless desire of power after power’ – behind all apparent difference.94 If not quite so reductive, modern political thought is similarly monist: it assumes that all people are pretty much the same – have pretty much the same motives, appetites, impulses, and aims. The royalist model is, conversely, dualist, although not in the Cartesian sense. Its basic structure seems to me, however, deeply Augustinian. The relation of sacral rule to the latrocinia mirrors that between Augustine’s two cities, whose citizens live side by side in any given political community, but according to different principles and for different ends. There is, in fact, one city of men who choose to live by the standard of the flesh, another of those who choose to live by the standard of the spirit. . . . We see then that the two cities were created by two kinds of love: the earthly city was created by self-love reaching the point of contempt for God, the Heavenly City by the love of God carried as far as contempt of self. . . . In the former, the lust for domination lords it over its princes . . . in the other both those put in authority and those subject to them serve one another in love.95 The final sentence makes the Augustinian presuppositions of high Christian royalism unmistakeable. Because human societies include the citizens of both cities, because they include two profoundly different kinds of people, it makes sense that politics would take two irreducibly different forms: the scramble up ambition’s ladder on the road to hell; the struggle to imitate God and His Christ in being just and righteous. The contrast seems to me to be a fairly stable one, although Lucio does his best to deconstruct it and some critics have believed him.96 But Lucio is a monist rogue, convinced that the difference between himself and his superiors is just puddle deep, and glad to strip away the mask of power (like Toto pulling back the curtain on the Wizard of Oz) to prove it.97 Or as Lucio puts it: ‘Why, you bald-pated, lying rascal, you must be hooded, must you? Show your knave’s visage, with a pox to you! . . . Will’t not off?’ (V i.345–8). And then he unmasks the

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friar, but in doing so exposes not the fraud but the Duke. This is not a Frank Baum moment. With Lucio’s attempt to implicate the Duke in the merry vices his laws condemn – which, if true, would make the Duke no different from Angelo – the play introduces a monist critique of its dualist political anthropology, and then, since by Act V Lucio’s mendacity has become obvious, discredits it. While Measure for Measure is Augustinian only in a loose sense, it does hinge on the distinction between politics in the earthly city where big thieves ‘write “good angel” on the devil’s horn’ (II.iv.16), and a politics that is ‘not unlike’ ‘power divine.’ With respect to Measure for Measure, the upshot of all this is to suggest that the work is political throughout: the plot not a fairytale, the Duke not a theatrical stock character, Angelo not (or at least not merely) a stage Puritan. The contrast between Duke and Deputy, around which the plot wheels, brilliantly renders the underlying binary structure of Christian royalist politics – a topic on which the good man/good ruler motif that runs through the play explicitly reflects. The Duke embodies and enunciates what seems to have been the dominant understanding of monarchy circa 1600. Angelo’s characterization – both his hypocritical severity and his descent from unrighteousness into injustice – is likewise politically conceived. With respect to Tudor-Stuart political thought, the upshot of all this is that religion matters. It does not always matter: some works ignore it; some use it primarily as window dressing. Yet high Christian royalism is irreducible to secular categories, not only because it hinges on the possibility of sacral kings, but also because, as in the Laws’ account of the two eras, it configures political inquiry as an attempt to discern how and where within the state the divine still penetrates the haunts of men.

3 The Throne of God: Absolutism, Equity, and Christian Justice

Sacral kingship presupposed the Elizabethan conception of the state as primarily a juridic rather than a constitutional order. Of the sixteenthcentury texts that describe the institutions of central government, none focuses on the respective functions of Crown, Lords, and Commons – or on the tensions between them. For Sir Thomas Smith, whose De republica Anglorum1 is the sole Tudor work to give a comprehensive account of English polity, ‘the framework of a commonwealth consists almost entirely of its courts, its judicial system, and its methods of police.’2 This juridic conception of the state likewise informs the one other important Elizabethan treatise on national governance, William Lambarde’s Archeion: Or, a Discourse upon the High Courts of Justice in England (written c. 1591; first edition 1635). Archeion deals exclusively with the central courts – including Parliament, which Lambarde regards as England’s ‘chief and highest court.’3 As Holdsworth points out, Lambarde’s focus, like Smith’s, is political rather than legal.4 Both men, that is, are attempting to explain how England is ruled; they analyze the courts because these represent the principal institutions of the state. Whenever the way power is distributed within a state becomes the main issue, constitutional questions move into the political foreground. To view the state as a juridic order, as numerous Elizabethans seem to have done, implies a rather different notion of politics as having more to do with justice than with power.5 In this sense too Measure for Measure – which centers on law, punishment, mercy, redress, criminality, and the like – is a deeply political play. With the exception of Smith’s De republica, sixteenth-century texts that treat the state as a juridic order depict it as ruled by a sacral king. The relation between the two concepts can be seen in Bracton’s 72

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widely-cited dictum that ‘to this end was one created and chosen king: that he might give justice to all, and that the Lord God might dwell in him, and through him manifest His judgments.’6 To govern is to dispense justice; that is the king’s primary role and it is also why the throne he sits on and the sword he bears are God’s. Lambarde’s Archeion makes the same point: ‘It is the office of the king to deliver justice,’ because ‘the prince of this realm is the immediate minister of justice under God’ and (here Lambarde is paraphrasing Bracton) ‘within his own kingdom the viceroy of God, the supreme judge of the world’ (66, 42, 56). William Hudson’s A Treatise of the Court of Star Chamber, which quotes the same passages from Bracton about the king-as-judge being ‘Dei vicarius, et minister in terra,’ describes, with a tenderness one does not expect from legal monographs, how ‘the king is the fountain of all justice, to whom is the first refuge of those that are distressed, and the last to whom appeals are to be made,’ who as ‘supreme judge of all’ sits ‘in his throne of majesty with his wise men and sages, distributing justice in his royal person or by his council.’7 So too Spenser’s prologue to Book V of The Fairy Queen braids its hymn to justice with invocations of sacral monarchy. Most sacred virtue she [justice] of all the rest, Resembling God in his imperial might; ... That power he also doth to princes lend, And makes them like himself in glorious sight, To sit in his own seat, his cause to end, And rule his people right, as he doth recommend.8 King James invokes the same Bractonian definition of the royal office in his 1616 Star Chamber speech, telling his auditory that ‘Kings are properly judges, and judgment properly belongs to them from God, for kings sit in the throne of God, and thence all judgment is derived.’9 Three years later, he reworked this theme in a tract on the nature and duties of a king written for Charles, his only surviving son. It is thus a companion piece to Basilicon Doron, the royal enchiridion addressed to Henry, who had died in 1612. The later work, however, is framed as a meditation on the passage in Matthew’s Gospel where, prior to the Crucifixion, the Roman soldiers mock Jesus by dressing him in faux-royal attire – the crown made of thorns, a reed instead of a sceptre – and pretending to worship him as King of the Jews. (Viewed in retrospect, the choice of the Passion as prototype for Charles’s reign

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is heavy with unintended pathos.10) The work throughout assumes that the king’s primary role is that of a judge. James thus observes that the soldiers gave Jesus a purple robe ‘to declare him a king,’ for kings ‘as God’s deputy-judges upon earth . . . [are] clad with long robes’; and they handed Him a reed, which ‘represented the kingly scepter, and the straightness of the reed, his righteousness in the administration of justice, without any partiality.’ The scepter, James immediately adds, ‘represents the king’s authority.’11 The paratactic conjoining of the two sentences implies – as something too obvious to require comment – that royal authority has a fundamentally judicial character. The passage continues to explore the reed-as-scepter image, drawing out what it means for a king to be like Christ: that it was a reed, James observes, rather than something harder and heavier like a rod of iron, ‘fitted properly the person of Christ, who, being the true king of mercy, came to convert sinners and bring them to repentance, but not to destroy them,’ by His example teaching kings ‘to correct gently.’12 By taking the Gospels as a ‘good pattern’ for political rule, James comes to define sacral kingship, his sense of kings as ‘God’s deputy-judges,’ in terms of a specifically Christian ideal of justice.13 He had in fact already done so in Basilicon Doron, instructing his elder son to beat down the horns of proud oppressors; embrace the quarrel of the poor and distressed as your own particular . . . neither spare ye any pains in your own person to see their wrongs redressed; and remember the honorable style given to my grandfather of worthy memory, in being called the poor man’s King. . . . remember when ye sit in judgment, that the throne ye sit on is God’s.14 A king provides justice for his people as the one who defends the weak against the craft and violence of strong men, and thereby acts in God’s stead. This understanding of justice leaves its distinctive print on Tudor–Stuart discussions of kingship, but also, as I will try to show in what follows, on those of law, the courts, and, in general, the nature of Christian polity. It likewise informs both Promos and Cassandra and Measure for Measure. It embodies, of course, a deeply scriptural ideal; James’s antithetic phrasing – ‘beat down the horns of proud oppressors; embrace the quarrel of the poor and distressed’ – recalls the Magnificat’s ‘He hath put down the mighty from their seat, and hath exalted the humble and meek’ (Luke 1:52); and similar adjurations to relieve the widow, the orphan, the needy, and the weak fill both Old

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and New Testaments.15 But the notion that it is, above all, the king’s duty to protect the weak from the strong – that this is what kings are for – has, in fact, a classical source.16 In De officiis, Cicero describes how in the earliest days of Rome, ‘the masses in their helplessness were oppressed by the strong’; hence, ‘in order that the people might enjoy justice . . . they appealed for protection to some one man who was conspicuous for his virtue,’ making him their king so that he might shield ‘the weaker classes from wrong.’17 Cicero’s account of the circumstances leading to Rome’s first kings becomes generalized, in the Middle Ages, into an origin-myth of kingship. As Baldus (d. 1400), one of the great medieval jurists, tells the story, prior to the emergence of civil society, ‘the lesser was being oppressed by the greater and the poor man by the rich, and the strong oppressed the weak, and therefore kindly nature granting solace to human misery, established Kings as rulers.’18 The same myth appears at the beginning of Lambarde’s Archeion, this time, however, in full sacral vesture, and without its populist subtext: even from the first propagation of mankind upon the face of the earth . . . God hath of his fatherly care and merciful providence always stirred up some of his own, whom He hath endowed and armed with sufficient wisdom, authority, and power not only to preserve his little ones from the greedy jaws of . . . ravenous persecutors, but also after some sort to resist their fury and to chastise them for their excess and outrage. (9) By deriving kingship from God rather than popular choice, Lambarde adapts the myth to a divine right framework, in sharp contrast to Cicero, whose account of Roman origins, taken in its entirety, does not eulogize monarchy but the impartial rule of law. According to Cicero, the first kings ‘shielded the weaker classes’ by giving all persons, rich or poor, ‘an equality of right,’ but after subsequent monarchs failed to provide this equal justice, laws took their place as indifferent arbiter between high and low. This emphasis on uniform legal justice is a hallmark of republican-constitutionalist thought.19 Given the divine right interpretation Lambarde puts on the first part of Cicero’s account, one is taken aback to find that he not only quotes its republican-constitutionalist ending, but adds that when laws were invented, one of the primary reasons was to limit royal power; or as he puts it, when the king,

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abandoning justice, made lust his judge and might his minister . . . then were laws and rules of justice devised, within the which (as within certain limits) the power of governors should from henceforth be bounded. (10–11) While this was a far less controversial position in 1591 than it would become under the Stuarts, it seems to place Lambarde on the side of constitutional rule over and against absolute monarchy. Read in terms of Stuart political thought, Lambarde’s partial revision of the Ciceronian myth seems incoherent: either royal authority comes from God or it is subject to legal limits. However, as Kantorowicz’s The King’s Two Bodies makes clear, Lambarde is not confusedly anticipating seventeenth-century debates, but merely echoing the standard medieval view enshrined in Bracton’s De legibus that the king occupied ‘a dual position above and under the law,’ since his exaltation as vicarius Dei required that he be subject to the law which thus exalted him.20 Lambarde’s debt to Bracton raises a further, and more interesting, question: namely, why would he have wanted to reaffirm the medieval view that the king’s authority derives immediately from God, rather than follow Hooker (and, in fact, most Elizabethan political thinkers) in defending the constitutionalistrepublican position that ‘the people are in no subjection, but such as willingly themselves have condescended unto, for their own most behoof and security‘?21 The answer, which sheds considerable light on why anyone (besides kings) might have preferred absolute to constitutional rule, is implicit in Lambarde’s claim that the king has a duty to provide justice even, if need be, against the law: For as it is inseparably annexed to the office of a king to be the judge of his people . . . . so howsoever many courts of ordinary resort shall be established by him, yet if either they have not, as I said, authority to apply remedy for all wrongs and diseases, or if that power and authority which they have may not enjoy her free course and passage, then must the king exercise his pre-eminent and royal jurisdiction, or else must the injuriously afflicted be deprived of that help and remedy, which both [sic] the ordinance of God, the duty of a kingly judge, and the common law of nature and reason do afford unto him. (66–7) The reference to ‘the ordinance of God’ catches one’s attention.

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Lambarde does not often mingle law with theology. The theological allusions cluster at exactly those points where Lambarde takes up the question of whether the king has a ‘royal jurisdiction’ distinct from common law. He thus argues that since the latter does not criminalize certain types of wrongdoing (for example, gross judicial misconduct), the ‘justice of God’ remits their punishment to ‘the kingly power’ (52–6). Again, replying to ‘mighty adversaries’ who hold that no subject can ‘be drawn to answer in any case . . . [except] after the course of common law,’ Lambarde maintains that the king, as ‘lieutenant of God within his own realm,’ is ‘bound to deliver judgment and justice whensoever it should be required at his hands’ (62–3). A few pages later he circles back to the same point: ‘Shall no help at all be sought for at the hands of the king when it cannot be found in the common law? that were to stop his ears at the cry of the oppressed and would draw wrath and punishment from Heaven’ (67). The king can act as the defender of the oppressed and injuriously afflicted because his duty is to enforce not the law of the land but the higher justice of God, according to ‘the solemn oath and vow of his Coronation, faciam fieri justitiam’ (66–7). Religion is scarcely window-dressing here. Each time Lambarde attempts to weigh the respective claims of the crown and the common law, the existence of this higher justice tips the balance in favor of the former. The king is not bound by the law precisely because it is as God’s lieutenant – as one whom God ‘hath endowed . . . [with] authority . . . to preserve his little ones’ – and not merely as head of state, that he must ‘deliver justice.’22 For Lambarde, the monarch’s extra-legal jurisdiction thus belong to the tightly constellated cluster of ideas found throughout late sixteenth-century high Christian royalism: the king as source of justice within a community; as protector of the afflicted, distressed, and defenseless; and, for that reason, as Dei vicarius et minister, ‘God’s deputy-judge.’ What Lambarde is talking about, however, is equity: specifically, the king’s right and duty to provide equitable redress if the common law courts either cannot or will not make justice happen. Nor is it only Archeion that foregrounds the monarch’s equitable jurisdiction. As I will show in what follows, equity is central to the Elizabethan notion of kingship, and also (the two points are not unrelated) to its institutions and theories of justice. The link between the ‘kingly judge’ who bears the sword of heaven and the particular brand of justice administered by the equity courts points back to Measure for Measure, with its interlaced double theme of kingship and equity. In 1604 these were crucial issues: in part, as suggested above, because the

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justice system – the king at its apex, the courts, including the High Court of Parliament, spreading out beneath – constituted the imaginative and institutional framework of the state; but also because both kingship and equity directly concerned the relation of the sacred to the social order.

Absolute power The law judges according to general rules. Equity deals with ‘extraordinary causes’ and exceptions to the rule (or situations not covered by existing rules).23 The finest and best-known Tudor–Stuart account is that of the eminent Henrician jurist, Christopher St German: And for the plainer declaration what equity is thou shalt understand that sith the deeds and acts of men for which laws have been ordained happen in divers manners infinitely, it is not possible to make any general rule of the law but that it shall fail in some case. And therefore makers of laws take heed to such things as may often come and not to every particular case, for they could not though they would. And therefore to follow the words of the law were in some case both against justice & the commonwealth. Wherefore in some cases it is good and even necessary to leave the words of the law & to follow that reason and justice requireth, & to that intent equity is ordained: that is to say, to temper and mitigate the rigor of the law.24 Moreover, virtually all writers on the subject (with the notable exception of St German) hold that equitable jurisdiction belongs to the monarch alone;25 in Carl Schmitt’s laconic phrasing, ‘sovereign is he who decides the exception.’26 Aquinas had made much the same point: he who is placed over a community [that is, the sovereign] is empowered to dispense in a human law that rests upon his authority, so that, when the law fails in its application to persons or circumstances, he may allow the precept of the law not to be observed.27 Similarly, Bodin lists as one of the distinctive marks of sovereignty ‘the power of life and death where the law itself has made no provision for flexibility or clemency.’28 This is the same point Whitgift makes: only

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the monarch has the ‘prerogative’ authority to pardon ‘such as by the law be condemned to die.’29 It is this power that Shakespeare’s Duke grants Angelo: Mortality and mercy in Vienna Live in thy tongue and heart . . . ... Your scope is as mine own So to enforce or qualify the laws As to your soul seems good. (I.i.43–4, 64–6) Angelo, of course, elects not to use this power: as he tells Isabella, ‘It is the law, not I, condemn your brother’ (II. ii. 83). Angelo’s decision to transfer the burden of choice from his own soul to the law has a long history behind it. Whitgift’s claim that the monarch may pardon those condemned by law – that this belongs to the royal prerogative – responds to the Puritan demand for the reinstatement of the Mosaic penal code; in particular, to Cartwright’s denial that the civil magistrate could spare ‘murderers, adulterous persons, and such like, which God by his judicial law hath commanded to be put to death.’30 But the debate over law and equity goes back, as most debates do, to Plato and Aristotle. Aristotle’s Politics defends the rule of law against Plato’s thesis in the Statesman that it is better to be governed by a ‘man who understands the art of kingship and has kingly ability’ than by laws. Given ‘the differences of human personality [and] the variety of men’s activities,’ one simply cannot, Plato argues, make ‘unqualified rules holding good on all questions at all times’ nor ‘issue an injunction binding on all which really embodies what is best for each.’ A wise king, however, can respond with flexibility and subtlety to emergent occasions and particular cases to find the right sauce for the gander as well as for the goose.31 The subsequent history of western political thought for nearly two millennia unfolds from this debate. Republican and constitutionalist thinkers, including mixed-constitution royalists such as Aquinas and Hooker, I believe invariably, and almost by definition, prefer the government of laws to any form of personal rule.32 The path of equity, as the Statesman makes quite clear, leads in the direction of absolutism.33 Schmitt’s remark that the sovereign decides the exception comes from his extraordinary monograph on political theology, the only

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modern work to focus on the crucial role of the exception and the fundamental problems it raises for the constitutionalist rule-of-law ideal. His understanding of the exception, however, differs fundamentally from the early modern one. Writing in Weimar Germany, its government paralyzed by extremist violence, Schmitt construes the exception as a political crisis that requires immediate and drastic measures, including the suspension of constitutionally guaranteed rights and liberties.34 In contrast, Tudor–Stuart discussions of equity, particularly civil equity, tend to define the exception as a case where the ordinary legal penalties would be inappropriately and unjustly harsh.35 The sovereign can deal with the exception, as the law cannot, because he has the authority to show clemency, to pardon the offender, to protect the oppressed for whom the law provides no remedy, to take account of mitigating circumstances, to open (in Lambarde’s words) ‘the Gate of Mercy . . . in all calamity of suit, to the end . . . [that] the rigor of law may be amended.’36 That is why the monarch’s name in Book V of The Fairy Queen is Mercilla. What the politics of mercy might amount to in practice is suggested by the fact that from 1584 on, each Elizabethan Parliament began with the Queen issuing a ‘most gracious general and free pardon,’ including a preamble to the effect that ‘many of her subjects had suffered from the just penalties imposed for their offences’ but now they would be delivered ‘by her Majesty’s great mercy,’ as an act of grace and ‘gift from the royal prerogative.’37 The mention of ‘royal prerogative’ takes one by surprise, since we do not often couple mercy and absolutism. Yet Elizabethan texts regularly use terms like ‘royal prerogative,’ ‘absolute prerogative,’ and ‘absolute power’ to refer to the crown’s equitable jurisdiction. Lambarde thus terms equity the king’s ‘prerogative, or judicial power,’ his ‘absolute and extraordinary preeminence of jurisdiction’ and the ‘absolute and regal justice of the prince’; Ellesmere, the ‘absolute prerogative which is in kings’; William Hake, a late sixteenth-century jurist, ‘the absolute power of the Prince.’38 It is in this sense that the prince was understood to be legibus solutus; the point was not that the monarch had, as it were, a divine right to do whatever he pleased, but that, if the common law courts either could or would not remedy a particular wrong, the king as Dei vicarius could suspend legal precedent and procedures in order to make justice happen.39 We have already discussed this with reference to Lambarde’s Archeion, but Ellesmere’s manuscript essay on the royal prerogative argues along the same lines that the king, ‘in that he is the substitute of God immediately,’ has the ‘prerogative to give his oppressed

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subjects right,’ ‘neither is there a greater bond to tie the subject to his prince in particular than when he shall have recourse unto him in his person or in his power for relief.’40 This conception of royal absolute power seems to have been a backformation.41 In the earlier sixteenth century, English lawyers had borrowed the theological distinction between God’s ordinary and absolute power to express the double nature of the chancellor’s authority: certain types of Chancery cases could be judged only by ‘the straight rule of the common law’; in others, the chancellor could exercise discretion, judging according to his sense of what was equitable given all the particulars of this or that individual case: which is simply to say that Chancery, the court over which the chancellor presided, had both a common law and an equity jurisdiction. With respect to the former, the chancellor had ordinary power, with respect to the latter, absolute. When later in the century the phrase ‘absolute power’ was applied to the king, it tended to retain this juristic sense, although Elizabethan writers invert the chronology and derive the chancellor’s equitable jurisdiction from king’s absolute power. Thus Lambarde holds that in the early Middle Ages the king ‘had a high court of justice, wherein . . . [he] did judge not only according to mere right and law, but also after equity and good conscience,’ but some time after the reign of Edward I, ‘the king did commit to his chancellor . . . his own regal, absolute, and extraordinary preeminence of jurisdiction in civil causes, as well for amendment as for supply of the common law.’42 In Bacon’s succinct phrasing, Chancery is the ‘the court of [the king’s] absolute power.’43 In English legal and political thought circa 1600, the ruler’s absolute powers derived from his obligation as Dei vicarius to ‘deliver justice to his subjects, howsoever the positive law of his country doth not afford it’ and ‘to give due judgment wheresoere the very truth doth appear sans auter proces’ (that is, without due process).44 Sovereign and sacral is he who decides the exceptions: who has the discretionary authority in such cases to use mercy, to provide equitable relief, to qualify the law as to his soul seems good. It need scarcely be pointed out that this is the kind of authority the Duke exercises in the final scene of Measure for Measure, which allows him, as Dei vicarius et minister, simply to ignore Vienna’s anti-fornication statute and instead sentence Claudio to marry his betrothed, as well as to pardon both Angelo and Barnadine, and, in general, to make justice happen sans auter proces. If one wished to grasp what royal absolutism ‘felt’ like in the first year of James’s reign, Duke Vincentio might not be a bad exemplar.45

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Absolute justice Sixteenth-century English monarchs did not themselves act as judges, at least not on any regular basis. The crown dispensed equity via the equity or prerogative courts, the two most important being Chancery for civil cases and Star Chamber for criminal. These were courts whose authority derived from the monarch’s ‘residuary power to administer justice outside the regular system’ in circumstances where the common law was either inadequate or ineffectual.46 In so far as the prerogative meant the crown’s ‘right to dispense with the law if equity required it,’ all equity courts were prerogative courts, and vice versa.47 Tudor–Stuart writers do not, however, term Star Chamber procedure ‘criminal equity’; that label is modern.48 In the earlier period ‘equity’ means ‘civil equity.’ Yet describing Star Chamber as a court of criminal equity simply rephrases the commonplace of Tudor–Stuart legal literature that Star Chamber administers the criminal counterpart to Chancery’s civil equity.49 The sense in which these were, in Bacon’s phrase, courts of the king’s ‘absolute power’ – that is, prerogative courts – can be inferred from both Hake’s remark that ‘the Lord Chancellor is (as it were) os principis and the court of Chancery (as it were) cor principis,’ and Hudson’s assertion that in Star Chamber cases ‘the judgment is the king’s only,’ the judges merely ‘by way of advice . . . deliver[ing] their opinions, which his wisdom alloweth or disalloweth, encreaseth or moderateth, at his royal pleasure.’50 A 1602 entry in John Manningham’s Diary reports that one of the Star Chamber benches was always ‘reserved as a seat for the prince,’ the purse and mace being placed before it ‘as notes of authority.’ On at least one occasion, James presided over the court in person and gave the final verdict.51 Both Chancery and Star Chamber emerged from the King’s Council, which through the late Middle Ages retained a broad and loosely defined judicial power to deal with the quite considerable number of causes that for one reason or another the ordinary courts proved unable to handle. As the body in immediate contact with the royal person, the Council had always wielded extraordinary judicial powers – powers, that is, derived from the king’s ‘prerogative of doing justice to all his subjects.’52 The transformation of Chancery from an administrative department into an equity court began in the late fourteenth century, when petitions addressed to the Council alleging that through some defect in the common law the petitioner could not get justice in the ordinary courts started being delegated to the chancellor.

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As a leading member of the Council, in close and regular contact with the king, and often a churchman, the chancellor seemed the appropriate person to deal with ‘petitions which asked that justice should be done on moral grounds by an exercise of the king’s extraordinary power,’ especially since he had the legal, secretarial, and administrative resources of the Chancery at his disposal. Hence during the late Middle Ages Chancery slowly acquired a judicial character; and by the fifteenth century it had evolved into an independent court, ‘sitting at Westminster and charged with remedying lack of justice in civil matters.’ Of the stream of complaints and petitions addressed to fourteenthcentury chancellors, some would be dealt with in Chancery, but others concerned matters sufficiently important to be referred to the whole of the King’s Council, which sat in a room at Westminster called the ‘star chamber’ and functioned, among other things, as an informal judicial body, using the same English bill procedure as Chancery. Under Henry VII, Star Chamber became recognized as a separate court, although not institutionally differentiated from the Council acting in other capacities, but simply ‘the King’s Council sitting judicially.’ While this early Tudor Council exercised a broad jurisdiction, it primarily sought to provide ‘equitable remedy in the face of acts contrary to public justice’: local disorder, perversion of justice, official malfeasance. Throughout the Middle Ages, Council had intervened in cases where local unrest or an overmighty subject left the ordinary courts hamstrung. With the breakdown of strong central government during the fifteenth century, the nobility, according to Sir Thomas Smith’s trenchant analysis, especially those in ‘the north parts of England . . . far off from the king and the seat of justice[,] made almost as it were an ordinary war among themselves, and made their force their law, banding themselves with their tenants and servants to do or revenge injury one against another as they listed.’ The purpose of Star Chamber was, correspondingly, ‘to bridle such stout noblemen or gentlemen which would offer wrong by force to any manner [of] man, and cannot be content to demand or defend their right by order of law.’53 That is, unlike Chancery, which mitigated the rigor of the law, Star Chamber punished wrongdoings that the law was too weak to remedy in order to protect the weak from the violence or cunning of the strong.54 The transformation of Star Chamber from the Council in its judicial capacity into a distinct court took place between 1516 and 1540. In two recent seminal studies, John Guy has made clear the key role played in this transformation by Cardinal Wolsey, who gave

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‘unprecedented emphasis to the Council’s judicial function,’ increasing its caseload ten-fold during the years of his ascendency (1516–29). The differentiation of the Council’s judicial and executive roles, begun by Wolsey, was finalized in 1540, when the Court of Star Chamber acquired its own clerk and began its own registers, separate from those of the newly reconstituted Privy Council. There was no bifurcation of personnel; the privy councillors also sat in Star Chamber. Yet so did the chief justices of King’s Bench and Common Pleas, along with, on occasion, other non-councillors, their presence making Star Chamber a visibly distinct body. The lord chancellor, the sole judge in Chancery, also presided as ‘supreme judge and director’ of Star Chamber, but Star Chamber cases were normally heard and decided by several persons from among the privy councillors, common law judges, bishops, and peers that composed its membership.55 Although the distinction between law and equity goes back to classical jurisprudence and plays an important role in many legal systems, only in England were these administered in separate courts, with the result that in England the distinction acquired ‘a sharpness and a permanence’ it possessed nowhere else.56 While the common law judges relinquished their equitable powers during the course of the Middle Ages, the emergence of Chancery and Star Chamber as independent courts marked the final division of common law and equity into rival legal tribunals.57 This division – and the equity courts’ stunning rise in prestige and popularity – constitutes the single most important episode in Tudor legal history. In the next century, the common lawyers, led by Coke, would view the split between the equity and common law courts as the great divide between absolutism on the one hand, and, on the other, the ancient constitution, immemorial custom, and the liberties of the subject.58 Coke’s formulation became the received wisdom, the common law having in consequence enjoyed rather better press than the prerogative courts for several centuries, but it is disastrous for understanding Elizabethan hault justice. It is also disastrous for understanding the questions of law and equity that lie at the heart of both Measure for Measure and Promos and Cassandra. According to both Tudor and more recent students of English legal history, the prerogative courts, civil and criminal, evolved in response to the very real defects of common law.59 Already in the fourteenth century, this had hardened into a rigidly technical system, and by the Tudor period was, or at least was felt to be, nearing a state of crisis. In

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his ‘Proposal for Amending the Laws of England,’ Bacon worriedly observes that ‘our laws, as they now stand, are subject to great uncertainties, and variety of opinion, delays, and evasions: whereof ensueth . . . that the contentious person is armed, and the honest subject wearied and oppressed. . . . That mens assurances of their lands and estates . . . are often subject to question, and hollow’; furthermore (and here Bacon’s ‘Proposal’ veers into the domain of Shakespeare’s play), there are a number of ensnaring penal laws, which lie upon the subject: and if in bad times they should be awaked and put in execution, would grind them to powder. . . . [Some] fit to be retained, but their penalty too great; and it is ever a rule, That any over-great penalty, besides the acerbity of it, deadens the execution of the law.60 Other contemporaries describe common law as inflexible, narrowly formalist, often corrupt; the jurors easily intimidated by powerful local factions and families.61 By the Tudor era, the common law judges had yielded their ancient discretionary authority to bend the rules of procedure to the broad requirements of justice, preferring, as an oftcited maxim phrases it, to ‘tolerate a “mischief” (a failure of substantial justice in a particular case) rather than an ‘inconvenience’ (a breach of legal principle).’62 In a verse epistle to Ellesmere (at that time Lord Keeper) published in 1601, Samuel Daniel, a poet not given to hyperbole, offers this indictment: Now . . . we see the most combining band, The strongest fastning of society, Law; whereon all this frame of men doth stand, Remain concussed with uncertainty, And seem to foster rather than withstand Contention, and embrace obscurity, Only t’ afflict, and not to fashion us, Making her cure far worse than the disease.63 Under Elizabeth, Chancery offered a brand of justice in many respects superior to that available at common law, as contemporaries apparently recognized, since the Chancery caseload quadrupled between 1550 and 1595.64 It was quicker, cheaper, not rule-bound, better able to unearth the truth, more interested in fair play and moral right than legal technicalities.65 Sir Thomas Smith reports that ‘the

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court of Chancery is called of the common people the court of conscience because that the chancellor is not strained by rigor or form of words of law to judge, but ex aequo and bono, and according to conscience.’66 Conscience is a theological notion.67 That it plays a crucial role in civil equity (a topic to which we will return) points to a deeper reason for the rise of the equity courts. In his Historical Foundations of the Common Law, Milsom suggests that ‘the true start of equity’ occurred after medieval judicature forsook the divine test of oath and ordeal in favor of trial by jury, which in effect replaced an infallible supernatural procedure with a notoriously fallible human one. The urgent question then became ‘how could divine justice manifest itself’ – the same urgent question that, in the Platonic myth, confronts the polis after the shepherd-daemons forsake their human flocks.68 The equity courts emerge in response to this question, in response to the felt need to find or make room for the higher justice of God to enter a now secularized legal system. They are in the fullest sense sacral loci. The metaphors Tudor–Stuart writers use in describing equity signal this. These corroborate Milsom’s intuition not because they hearken back to the ordeal (they do not), but because, like Milsom, they associate the equity courts with ancient and outworn sites of divine judgment. In his discussion of Chancery, Lambarde thus comments that ‘if only straight law should be administered, the help of GOD which speaketh in that oracle of equity should be denied unto men that need it’ (44). The oracle shows up in Ellesmere’s definition of equity as well: ‘Equitas est publici iuris moderatio a pectore regis velut ab oraculo pretenda’; similarly, Hake (quoting John Case’s 1588 Sphaera civitatis) maintains that if ‘there fall out hard causes and cases uncertain and doubtful which are not defined by the law . . . [we are to fly] to the magistrate . . . from whom as from the tripos of Apollo we are to look for the sentence of equity.’69 An oracle is where God speaks. To term equity oracular implies that this is where the divine pneuma issues into the social body, that God speaks in the equitable judgments of the os principis – literally ‘the mouth of the prince,’ but also Hake’s epithet for the lord chancellor. Another metaphor links the equity courts to a second vanished sacral locus: the sanctuary. At one point, Lambarde describes Star Chamber as a ‘place whereunto, in default of common help, [men] . . . may fly for refuge, as to a certain sanctuary . . . where they may shroud themselves in their innocency’ (52). An early seventeenth-century tract refers to Chancery in similar terms as ‘the refuge of the poor . . .

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and sanctuary for such as against the might of rich men, and the countenance of great men, cannot maintain the goodness of their cause.’70 Prior to the Reformation, sanctuaries had been protected sites where those in legal difficulties could escape creditor, bailiff, and hangman. Moreover (and the strangeness of this should not be glossed over), these sites were not the medieval equivalent of the Caymans but almost always located in churches, monastaries, or other consecrated precincts; in More’s History of King Richard the Third, the Archbishop describes the Westminster sanctuary as ‘holy ground . . . specially hallowed and dedicate to God,’ a ‘sacred place . . . that hath been the safeguard of so many a good man’s life.’71 The Reformation largely abolished these sanctuaries, most of their privileges stripped away during the mid-sixteenth century – during, that is, the same years Bucer wrote De regno Christi with its utterly different view of the relation between Christianity and law enforcement.72 But for Lambarde, and even more clearly in Daniel’s ‘To Sir Thomas Egerton,’ the medieval notion of sanctuary – that the place where the long arm of the law cannot reach be holy ground – survives in the practices of the equity courts. Daniel thus apostrophizes the ‘Great Keeper of the state of equity’ as Refuge of mercy, upon whom relies The succor of oppressed misery; Altar of safeguard, whereto affliction flies From th’eager pursuit of severity; Haven of peace, that labor’st to withdraw Justice from out the tempests of the law. (ll.62–8) A later stanza uses the same metaphor to describe the Court of Chancery: And therefore did those glorious monarchs (who Divide with God the style of majesty For being good, and had a care to do The world right, and succor honesty) Ordain this sanctuary, whereunto Th’opprest might fly, this seat of equity. (ll.117–22) By imagining the equity courts as latter-day sanctuaries, Daniel implic-

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itly ratifies Milsom’s sense that the former emerged from the ruins of the ancient sites where divine justice had manifested itself. So too, the contrast he draws between divine justice and the law’s tempestuous course suggests Milsom’s argument that the jury trials of common law, which replaced both ordeal and sanctuary, never seemed more than a very inexact (and easily corrupted) deciding mechanism and hence, in a culture ‘concerned to secure . . . absolute justice’ rather than merely ‘justice seen as a product of human thought about which men might differ,’ a very inadequate one.73 The equity courts resemble ordeal and sanctuary precisely because, unlike common law, they lay claim to manifest the absolute justice of God – not, as Milsom points out, by enforcing the law, but by using discretion to disturb its effect.74 For Daniel, as for most Elizabethan writers on equity, divine justice enters the prerogative courts via the mediating link of sacral kingship. As we have already discussed at some length, these courts both presuppose and perform the king’s divine right to make justice happen. It may be that the reason Elizabethan equity felt like a specifically Christian justice system, in a way that common law did not, lay in the ‘characters of divinity’ imprinted on kings, but there is a second, more obvious explanation. Chancery’s equity jurisdiction dates from the late fourteenth century, ‘a period when canon lawyers dominated the staff.’75 In the century prior to the Reformation, the crucial formative period of English equity, virtually all the chancellors had been ecclesiastics: under Henry VII, one was Bishop of Worcester (Alcock) and three were Archbishops of Canterbury (Morton, Dene, Warham); in 1515 Henry VIII appointed Cardinal Wolsey, who spent his first years in office fashioning what became known as the Court of Star Chamber; when Sir Thomas More replaced Wolsey in 1529, he became the first layman in over four decades to hold the office of chancellor.76 The fact that so many of the men who developed the basic principles and procedures of English equity were clerics meant that equity, as contemporaries recognized, was a specifically Christian justice system. The ecclesiastical chancellors, as an eminent legal historian points out, ‘were certainly not common lawyers, and it must have been a perfectly natural instinct, then as now, for a bishop, when faced by a conflict between law and morals, to decide upon lines of morality rather than technical law.’77 Moreover, while the ecclesiastical chancellors were not necessarily canonists, their legal background and experience had been in canon law, with the result that key equity procedures and principles derive from the church courts, which must have been part of the reason Tudor equity presented itself as Christian justice. 78 The

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profoundly religious character of Chancery can be seen at once in the quite remarkable preface to Hake’s treatise on English equity, which ends up making the chancellor into a type of Christ: in the said high court, the decrees [and] judicial acts ought not to be limited by rules or guided by exposition of texts, as the judgments of the common law are, but should be derived upon conscience, even the conscience of the judge there . . . . And what greater safety can there be unto the persons there contending than that the conscience of the judge is & must be unto the same as a sanctuary of defense & succor, the said judge being (as the nature of that court requireth) adorned & beautified with the sweet ornaments of clemency & mercy, patterned by the lenity of the mild Saviour of mankind, the Lord Jesus.79 Hake wrote during the last years of Elizabeth’s reign, by which time chancellors had for decades come from the King’s Bench rather than episcopal seats, yet, as this powerfully sacralized account makes evident, Chancery continued to represent a system of Christian justice distinct from the secular framework of common law. The larger political significance of Chancery hinges on this. In his magisterial History of English Law, Holdsworth remarks that the early modern ‘substitution of the background of material force, on which the sovereign state was based, for the religious and moral background which underlay the political theories of the Middle Ages’ changed men’s ‘conception of the relations of law and equity.’ The sixteenthcentury equity courts based their authority on the medieval conception of the state and its laws as subordinate to divine law – and hence subordinate to the universal moral norms of conscience and reason, since it is through conscience and reason that men apprehend divine law.80 The sovereign or modern state, by contrast (and here Holdsworth’s analysis coincides with Milbank’s), knows only material forces and the immanent regulation of these forces by positive law. John Selden, the great Erastian common lawyer, thus dismisses equity ‘according to the conscience of him that is chancellor’ as tantamount to making the standard for the measure we call a foot to be the chancellor’s foot. What an uncertain measure this would be: one chancellor has a long foot, another a short foot . . . ’tis the same thing in the chancellor’s conscience.81

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For Selden, neither the chancellor’s nor anyone else’s conscience has privileged access to a transcendent law above human laws, so that equity boils down to personal taste. Selden’s comment dates from the Civil War era, but similar objections had been raised by sixteenthcentury common lawyers, and by ‘the end of the Tudor period it was becoming clear that a struggle for supremacy was imminent between the common law courts and these new and rival jurisdictions.’82 It is important to remember, however, that initially the prerogative courts prevailed. Although equity slowly diminished in importance as the modern sovereign state evolved, the sixteenth and early seventeenth centuries were the glory days of Chancery, the era of its greatest judicial authority and political significance. As a result, Holdsworth observes, ‘the strictly mediaeval conception of equity had a longer life in England than in any other country in Europe.’83 Holdsworth’s stress on the medieval (that is, theological) character of Tudor–Stuart equity underscores the fact that Chancery gave institutional expression not only to the crown’s absolute prerogative, but to a transcendent ‘moral virtue which reformeth the law.’84 The importance of Chancery during this period meant that Christian justice and Christian social ethics remained a central business of the state. It seems distressingly naive to suggest that Star Chamber might also have been regarded as a Christian court – except, perhaps, in so far as it punished religious nonconformity; opponents of the Caroline–Laudian regime denounced it as the savagely punitive instrument of tyranny, and the opprobrium has endured. Maccauly describes Star Chamber as a political ‘inquisition’ of unprecedented ‘rapacity’ and ‘violence,’ by means of which ‘the government was able . . . to fine, imprison, pillory, and mutilate without restraint,’ a fearful tool of ‘arbitrary power . . . the memory of which is still, after the lapse of more than two centuries, held in deep abhorrence by the nation.’85 Yet as a number of legal and constitutional historians have recently pointed out, from the beginning of the Tudor era to the end of the Jacobean, Star Chamber remained a popular, highly respected court: Lambarde termed it ‘most noble and praiseworthy’; Bacon ‘one of the sagest and noblest institutions of the kingdom’; in the year Measure for Measure was written, it was still for Coke ‘the most honourable court (our Parliament excepted) that is in the Christian world.’86 One would not wish to attach much significance to Coke’s use of ‘Christian’ here, but it is otherwise with Hudson’s A Treatise of the Court of Star Chamber.87 As Kevin Sharpe notes, Hudson has almost

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‘nothing but good to say’ about this court, which in his eyes came ‘nearer to the Roman senate than any other.’88 Sharpe, however, leaves something out: what Hudson had written was that Star Chamber surpassed ‘the Roman senate, by so much, by how much Christian knowledge exceedeth human learning.’89 Reading through A Treatise, one is taken aback by its emphasis on the Christian ideals informing Star Chamber practice. For Hudson, Star Chamber is ‘a court rather of mercy than of justice,’ if for no other reason than because, unlike the common law courts, it did not impose the death penalty. The Star Chamber judges could, at the king’s pleasure, try capital cases, including treason and felony, but if they found the defendent guilty, he would not be hung, beheaded, drawn, or quartered.90 Moreover, of all the secular courts, only Star Chamber had ecclesiastical judges. ‘The court,’ Hudson explains, ‘is not alone replenished with noble dukes, marquises, earls, and barons . . . grave counsellors of state, [and] just and learned judges,’ but also ‘with reverend archbishops and prelates,’ enabling it to harmonize the divergent cultural imperatives of ‘justice, mercy, religion, policy, and government, [so] that’ – in Hudson’s stunning appropriation of the great Christological psalm – ‘it may be well and truly said, that Mercy and Truth are met together, Righteousness and Peace have kissed each other.’ To illustrate how the presence of ‘reverend archbishops and prelates’ in Star Chamber softened the blows of temporal power, Hudson recalls that in the early Tudor period, when the court was ‘most commonly frequented by seven or eight bishops and prelates every sitting-day . . . the fines trenched not to the destruction of the offender’s estate and utter ruin of him and his posterity, as now they do, but to his correction and amendment, the Clergy’s song being of mercy.’91 If, as this suggests, the moment when Star Chamber seemed to participate in the reconciling work of the Incarnation had past, Hudson views the change as loss and deformation – in particular, as loss and deformation of a sacral locus, of a place where the clergy’s song of mercy counterpointed the burden of ‘policy and government.’ Writing two decades before Hudson, Lambarde had also described Star Chamber as a peculiarly sacral institution: a ‘sanctuary and holy anchor’ where men unjustly accused might ‘shroud themselves in their innocency,’ where ‘the most godly, honorable, wise, and learned persons of the land’ did battle against ‘devilish imposters’ and sin’s infinite, infernal brood (49–52). More important, both men repeatedly call attention to the religious commitments embodied in the specific practices and procedures of the court. They thus note the ‘compassion’ shown ‘to the poor and distressed,’ which Hudson praises as ‘a work of

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mercy, piety, and an imitation of the Supreme Judge.’92 Above all, they emphasize Star Chamber’s protection of those least able to help themselves against the rapacity and malice of strong men. Lambarde thus reports that in this court are punished those who ‘lay hooks and make traps, as it were, for the taking, entangling, and snaring of silly and simple folks,’ as well as the various sorts of chicanery whereby ‘the cause of the poor and honest . . . [is] overthrown and trampled under foot’ (51, 99). In addition, Star Chamber does not require that plaintiffs be bound with sureties to pay costs, since if a great man . . . oppress a poor man, no man dareth be bound for the poor man for fear of the displeasure of the rich, and so the poor shall be without remedy, of whom the court in former times hath taken the greatest care.93 Even basest beggars have sued in Star Chamber, and, Hudson maintains, ‘severe punishments have been inflicted upon most eminent men for wrong done to those that were most miserably poor; as against justices of the peace for whipping of those which were not to be whipped by the law.’94 As this final observation suggests, Star Chamber took particular cognizance of official misconduct, especially judicial corruption: what Lambarde calls ‘the insolencies and outrages (if any such shall happen) of the judges, justices, and other men that be great by their places and authority,’ who, either through greed or partiality, ‘slyly abuse those good gifts in respect of which they are called to the magistracy’ or ‘stick not to use means both forcible and subtle for the winning of their wills’ (50–1).95 Lambarde’s and Hudson’s accounts of Star Chamber portray the court as the instrument of a quite traditional ideal of Christian social justice.96 It was seen (and, presumably, was meant to be seen) as a place where offenders were judged with mercy, where the poor and distressed found compassion, where the weak had protection from the strong, where simple folk were freed from the snares of craft and cunning; where wicked magistrates, corrupt judges, and lordly oppressors could be made to pay for the abuse of power.97 The ideal of justice that Star Chamber upheld and enforced, moreover, links this royal court to royal ideology. James, as we have seen, affirms the same ideal, with its braided echoes of Scripture and Cicero, as part of the moral foundation of sacral kingship, reminding his son that because ‘the throne . . . [kings] sit on is God’s,’ it is their duty ‘to beat down the horns of proud oppressors’ and ‘embrace the quarrel of the poor and

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distressed.’ This ideological congruity hardly surprises, but is worth mention as evidence for the peculiarly close and significant relationship between the crown and prerogative courts during the Tudor-Stuart period, and hence for the political centrality of this relationship – the political centrality, that is to say, of a theological and juridic model of the state.

The theater of equity In going over the concerns that Lambarde and Hudson associate with the Christian social justice administered in Star Chamber – magistrates who employ ‘means both forcible and subtle for the winning of their wills,’ the ‘insolencies and outrages . . . of judges,’ ‘cunning cozenages’ for the ‘snaring of silly and simple folks,’ the oppression and exploitation of the weak, manipulating the legal system so that ‘the cause of the poor and honest . . . [is] trampled underfoot’ – one can scarcely avoid noting that these same transgressions drive the plots of Measure and Promos. In itself, the overlap need not be significant, since these are widely shared concerns (they reappear in Dickens), but the path of inquiry that it suggests leads to an interesting point. If one reviews the distinctive sorts of cases and procedures associated with the main sixteenth-century equity courts – that is, Chancery as well as Star Chamber – again and again these betray a more-than-family resemblance to precisely the issues around which the two plays revolve. Some of the parallels are very general, although no less important for that reason: both plays hinge on the tension between justice and mercy, between enforcing the rules and mitigating them, between strict law and sweet charity; both plays, that is to say, are about equity. But there are also striking congruities between fairly specific, even technical, features of the justice administered in the late sixteenthcentury equity courts and the plots of Measure for Measure and Promos. We have already mentioned some of the Star Chamber material – judicial misconduct, official corruption, and abuse of power, and the like. In addition, civil equity dealt breach of trust (laesio fidei) and the enforcement of verbal agreements; in equity, unlike common law, promises were considered binding, according to the canon law principle that faith should be kept, even though there had been no written contract or some other of the ‘ordinary legal formalities’ were lacking. Both criminal and civil equity courts set themselves up ‘as a major combatant of fraud,’ which they interpreted broadly to cover all breach of trust, including the sort of ‘cunning cozenages, crafty

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reaches, undermining devices, subtle complots, counterfeit drifts, and fraudulent fetches’ that violate every principle of fair play and moral honesty without being actually illegal.98 Furthermore, whereas common law could award damages only, the equity courts had the power to compel specific relief; that is, they could order a litigant to fulfill ‘the duties which reason and conscience would dictate to a person in his situation’‘: for example, delivering up certain chattels, cancelling a document, performing the terms of a contract.99 The equity courts also accepted the maxim that ‘fraus non est fallere fallentem’ (it is not deceit to deceive a deceiver), a version of the canon law principle that ‘frangenti fidem, fides frangatur eidem’ (with him who has broken faith, faith may be broken) or what was known as the dolus bonus (the good trick). Like canon (and civil) law, equity thus seems to have recognized the possibility of legitimate deception – for example, ‘when a man doth machinate or devise anything to entrap a thief or traitor’ – whereas common law took cognizance only of the malus dolus, punishing ‘such as endamage others by deceit.’100 Finally, if equity (in this case, Star Chamber) punished the misconduct of ‘men that be great by their places and authority,’ it also punished slanderous accusations against ‘good and upright justices . . . officers, and whatsoever public persons.’101 This is, of course, a bald and summary list; nor have I made any attempt to cover all the major aspects of equity jurisdiction and procedure, only those that struck me as relevant to the two plays under discussion. It now remains to make a case for their relevance, focusing on Measure for Measure, but first briefly looking at Promos, since the sorts of equity issues taken up in Whetstone’s play are substantially different from those Shakespeare’s engages, and as before the differences are illuminating. Promos and Cassandra is a straightforward and, were it not for the wretched versification, fairly impressive dramatic homily preaching the same Christian social justice that Star Chamber enforced. The play’s basic point is announced at the outset in a catchphrase that recurs at key junctures throughout. The first scene opens with Promos reading aloud the King’s letter appointing him deputy-judge of Julio: ‘Lo, here you see what is our sovereign’s will, / Lo, hear his wish, that right, not might, bear sway’ (1.I.i.). Later, when Promos decides not to pardon Andrugio, thus breaking his promise to Cassandra – the promise he made in exchange for her sexual compliance – he justifies his treachery on the sinister ground that ‘might commandeth right’ (1.IV.ii). The King’s first speech upon entering Julio returns to the

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same theme: if those in power ‘their rule by conscience measure not,/ The poor man’s right is overcome by might’ (2.I.viii). His final words, addressed to the repentent Promos, remind him ‘Unto the poor have evermore an eye, / And let not might outcountenance their right’ (2.V.v). The play is far less interested in sexual transgression than the abuse of power: when the King denounces Promos’s crimes at the climax of the trial scene, the violation of Cassandra is made to seem his least heinous offense: Thou wicked man, might it not thee suffice By worse than force to spoil her chastity, But heaping sin on sin, against thy oath Hast cruelly her brother done to death. This over-proof ne can but make me think That many ways thou hast my subjects wronged, For how canst thou with justice use thy sway When thou thyself dost make thy will a law? Thy tyranny made me this progress make . . . Unto this end, that I might learn at large What other wrongs by power thou hast wrought: And here I hear the rich suppress the poor So that it seems the best and thou art friends. (2.III.iii) The offenses that matter – at least those that matter to the state, those that the King and his councillors make it their urgent business to punish – involve the exploitation and oppression of the weak by the strong: especially Lambarde’s ‘insolencies and outrages . . . [of] judges, justices, and other men that be great by their places and authority’ but also the tricksy viciousness of con-artists, cony-catchers, and other urban predators. The play develops its central theme of might versus right in interlaced subplots that detail the wiles of various civic officials and petty criminals, whose anti-social tendencies have been allowed free rein by the infatuated and tormented Promos. Phallax, Promos’s right-hand man, and a couple of paid informers devise an extortion racket whereby the informers threaten those whom they arrest with whipping, imprisonment, and the like;102 Phallax then pretends to befriend the panicked suspect by suggesting that perhaps a little gift might induce the officers to let him go; the bribe having been paid, the suspect, guilty or innocent, ‘escape[s] from Justice bands’ (1.II.iv).

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Between shake-downs, Phallax makes use of his office to keep Lamia, a whore with a heart of flint, from legal molestation in exchange for her sexual favors. She, in turn, discards her servants to fend for themselves at the first whiff of hard times. This lack of charity, which the play takes much more seriously than her unchastity, spreads out like an oilslick through her household; in one particularly unpleasant scene, Lamia’s man and an accomplice first rob and then poison an unsuspecting and none too bright ‘old friend’ (1.V.iv–1.V.v). These were the sorts of offenses that the Elizabethan Star Chamber punished. The play, in fact, obliquely acknowledges this, noting that the misdeeds it chronicles lie beyond the power of the ordinary courts so that royal equity must intervene to make justice happen. Cassandra thus resolves to present her case to the King because he will ‘judge with equity’ (1.IV.iv). Later, after the King and his advisers arrive in Julio to redress the breakdown of good government, various citizens relate how Phallax has ‘against all equity’ defrauded them by taking advantage of legal loopholes, with the result that, since he has ‘strict law’ on his side, the courts cannot remedy the injustice (2.II.v). The concluding episodes in which Julio’s corrupt authorities confront the royal entourage and are made to answer for their insolencies and outrages recall the primal scene of English polity Hudson sets at beginning of his Treatise of the Court of Star Chamber, where the king, as ‘the fountain of all justice, to whom is the first refuge of those that are distressed, and the last to whom appeals are to be made,’ sits ‘in his throne of majesty with his wise men and sages, distributing justice in his royal person or by his council.’103 Neither King Corvinus nor his Council shows special interest in regulating private morals, instead bending their energies to maintain the right of the poor and oppressed against the rapacity of might. Moved by such goodness, a peasant, whose suit the King has graciously heard, breaks out into an impromptu ballad: [He] checks the rich that wrong by might, And helps the poor unto his right. The love that rigor gets through fear, With grace and mercy he doth win, For which we pray thus every where, Good Lord preserve our King Corvin. (2.III.iii) The King’s own final lines affirm the same ideal of social justice: ‘As I

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have said, be good unto the poor, / And justice join with mercy evermore’ (2.V.v). Much of this, of course, carries over into Measure for Measure, whose climactic trial scene stages the fearfully effective workings of official corruption, oppressive authority, and power misused to trample justice under foot – issues that Isabella had already touched on in the soliloquy she gives immediately after hearing Angelo’s monstrous proposal: Oh, perilous mouths That bear in them one and the self-same tongue, Either of condemnation or approof, Bidding the law make curtsey to their will, Hooking both right and wrong to th’appetite To follow as it draws. (II.iv.173–8) Yet Shakespeare’s play de-emphasizes the social justice considerations that lie at the heart of Promos and Cassandra – and at the heart of Star Chamber equity. He omits the ring of corrupt officials who, under Phallax’s direction, collude in a lucrative extortion racket: Escalus, Phallax’s counterpart, is a good man; Elbow, who replaces the informers, merely dense. The low-life characters, Mistress Overdone and Pompey, are more endearing than vicious; unlike Lamia and her confederate, they do not lay crafty traps to fleece the simple or otherwise prey upon innocent folk. While Pompey’s description of the knaves, fools, and thugs cooling their heels in Vienna’s jail recalls Julio’s underworld, Shakespeare does not bring this crew on stage. The only unrepentently vile character in Measure for Measure is Lucio, who abandons Pompey to his fate without a moment’s compunction (III.ii.37–76) and whose lies come within a hair’s breadth of destroying Isabella and Mariana. While Measure for Measure turns away from the problems of corruption and cozenage that occupied Whetstone, as well as the Star Chamber judges, it likewise incorporates equity issues; the play is, of course, about the conflict between mercy and strict law, but it also seems to be using equity materials in more specific and oblique ways. Two plot-lines in particular, both Shakespeare’s additions, intersect the jurisdiction of the equity courts. Lucio’s slanders against the Duke would have landed him posthaste in Star Chamber, which took an exceedingly dim view of maliciously defaming those in positions of

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authority. For now, however, I want to treat only the second point where Measure for Measure seems to reflect, or at least resemble, the workings of equity. ‘Point’ is perhaps the wrong word for what is, in fact, a sequence of linked episodes: the Duke’s telling Isabella of the ‘poor wronged lady,’ Mariana, whom Angelo ‘left . . . in her tears, and dried not one of them with his comfort’ (III.i.192–218); his stratagem to ‘compel him [Angelo] to her recompense’ by substituting Mariana for Isabella in Angelo’s bed, a trick whose ‘benefit defends the deceit from reproof’ (III.i.226–42); Mistress Overdone’s account of how Lucio impregnated and then abandoned Kate Keepdown, despite having ‘promised her marriage’ (III.ii.171–2); the final judgment scene where the Duke pardons Claudio, Angelo, and Lucio for their trespasses, small and great, sentencing each only to marry the woman he wronged (V.i.483–519). The offenses described in these scenes, and the Duke’s responses to them, resemble both the sorts of cases dealt with in Chancery and its manner of dealing with them. The Duke, like the chancellor, views laesio fidei as a serious offense – and an actionable one; the Duke thus follows Chancery procedure in enforcing good faith promises, although made without written contract or other legal formalities. The bedtrick is a dolus bonus, as the Duke’s lines about how Angelo shall ‘Pay with falsehood false exacting / And perform an old contracting’ imply (III.ii.242–4); and while the mind boggles at the thought of Ellesmere deceiving deceivers in this fashion (Hatton is perhaps another matter), Chancery would have recognized the Duke’s claim that the ‘benefit defends the deceit from reproof.’ Compelling Angelo and Lucio to recompense by marriage the women they deceived is, of course, specific relief; the Duke, like the chancellor, orders the parties to do that which reason and conscience mandate. In setting up the bedtrick and weddings, the Duke acts on behalf of the women and children, guarding the right of the little ones and the weaker sex, even Kate Keepdown, against insolencies and outrages of strong men. In the end, what matters is not romantic love, which gets rather perfunctory handling, Shakespeare not bothering to script either the reunion of Claudio and Juliet or Isabella’s reaction to the Duke’s unexpected offer of his hand, but as in Promos and as in the Tudor–Stuart prerogative courts, Christian social justice. Yet male infidelity and official corruption are not, certainly not legally, the same sort of thing. In Promos and Cassandra, the King takes cognizance of the sorts of wrongdoing that threaten the community as

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a whole: abuse of power, judicial misconduct, the solicitation of bribes by public officials, injustice committed under color of authority, oppression and exploitation of the weak. His actions are consistent with the widely accepted Ciceronian position that the state’s primary function is to administer an impartial and uniform justice whereby high and low enjoy ‘equality of rights before the law.’104 The King’s actions seem likewise to presuppose the quite traditional view, discussed in Chapter 1, that the state aims at the common good, as opposed to the good of the individual, and therefore, in Aquinas’s words, does not prescribe concerning all virtues but only ‘in regard to those that are ordained to the common good’; nor is it the state’s job to punish every evil, but only the more grievous vices, ‘especially those that are to the hurt of others, without the prohibition of which human society could not be maintained; thus human law prohibits murder, theft, and . . . those sins chiefly whereby one’s neighbor is injured,’ thus leaving ‘unpunished many things that are punished by divine providence.’105 Whetstone’s view of the state as having a primary obligation to the common good, and hence to the fair and uniform enforcement of law without respect of persons, lies behind one of the more startling divergences between the plots of Promos and Measure. In Whetstone, the King, who up to the last minute believes that Promos’s order for the execution of Andrugio has been carried out, refuses Cassandra’s pleas for mercy; as one of the royal councillors relates: The king wellnigh to pardon him was won. His heavy wife such storms of tears did shower As might with ruth have moist a stony heart, But Promos’s guilt did soon this grace devour. Our gracious king, before her wretched smart Preferred the health of this our common weal. (2.V.ii) Nor does the King take into consideration various mitigating factors: Promos’s humble request for forgiveness, his apparently sincere repentance, his deep love for the woman he deflowered and has now, by order of the King, married (2.III.iii, 2.V.iv–v).106 The King’s decision to uphold the law rather than make an exception for Cassandra’s sake conforms to the ideals of good government laid out in scene I, where Promos summarizes the King’s letter:

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No willful wrong sharp punishment shall miss, The simple thrall shall be judged with mercy, Each shall be doomed even as his merit is. Love shall not stay, nor hate revenge procure, Ne yet shall coin corrupt or foster wrong; I do protest, whilst that my charge indure, For friend nor foe to sing a partial song. (1.I.i) From the perspective of Whetstone’s King, according to which the state is responsible for the common good, to disregard the law and pardon a man guilty of ‘willful wrong’ out of compassion for his wife looks like partiality. The King as head of state must prefer the uniform rule of law on which the health of the common weal depends before even Cassandra’s happiness. Promos is spared because at eleventh hour Andrugio comes out of hiding, which means (rather obviously) that Promos is not guilty of his death. But the play strongly implies that it is the state’s business to uphold the claims of law against grace, the common good against the good of the individual, equal justice against equitable mitigation. In Shakespeare, the Duke pretends to make the same decision as King Corvinus; he pretends, that is, to have every intention of condemning Angelo ‘to the very block / Where Claudio stooped to death’ (V.i.407–8), but the Duke argues for strict law in the hope that Isabella will come, of her own accord, to side with forgiveness. The Duke, of course, knows that Claudio lives, but Isabella does not; her position is that of King Corvinus – or worse, since she is being asked to forgive her brother’s murderer. She is asked to do so for two reasons: for Mariana’s sake, and because Angelo might reform – since, as the former sweetly puts it, ‘They say best men are moulded out of faults, / And for the most become much more the better/ For being a little bad: so may my husband’ (V.i.431–3). Isabella answers Mariana by kneeling before the Duke to request Angelo’s pardon, adding two further reasons to explain why, having so earnestly sought justice, she now desires mercy: first, she professes herself willing to believe that Angelo is a basically decent man who on one occasion went into a moral nosedive; second, she notes that Angelo did not actually commit any crime, since he sentenced Claudio according to law and slept not with Isabella but Mariana, to whom he was ‘affianced . . . as strongly as words could make up vows’ (V.i.225–6); while both deeds evinced a very ‘bad intent,’ yet, Isabella concludes, ‘Thoughts are no subjects, / Intents but merely thoughts’ (V.i.437–47).

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Except for this last point, the reasons adduced or implied for pardoning Angelo are considerations of equity, which takes into account all the collateral circumstances and mitigating factors relevant to a particular case. Yet the possiblity of the accused’s repentence, the overall moral tenor of his life, and his wife’s happiness do not constitute the kind of extentuating circumstances that modern legal historians associate with the equity administered in Tudor–Stuart prerogative courts. The paramount importance that Measure’s trial scene accords to the individual good of both Mariana and Angelo implies a conception of justice strikingly different from the mid-Tudor Christian social ethic informing Whetstone’s play, and, for that matter, Star Chamber. So too, while social justice issues of might and right do inform the subplots leading to the compelled unions of Angelo and Mariana, Lucio and Kate Keepdown, the emphasis has shifted from public evils to the grief of two abandoned women and an unwanted child. Compared to Whetstone’s King, Duke Vincentio betrays an extraordinary concern for the well-being of private individuals. The divergence is underscored in the episode that immediately follows Isabella’s plea: the Provost having ushered Barnadine and the disguised Claudio onstage, the Duke turns to the former – a truculent, impenitent felon who was to have been executed that afternoon – and pardons him on the off-chance that he might come to acknowledge his own mortality and thus ‘provide / For better times to come’ (IV.ii.127; V.i.477–8), to which end the Duke appoints Friar Peter as Barnadine’s spiritual parole officer. He does not, however, address the question of how freeing such a manifestly unrehabilitated criminal is likely to effect the health of the commonweal, an omission King Corvinus might have found disturbing.

4 The King of Souls

Why does Shakespeare’s Duke attend primarily to the good of individuals? In Tudor–Stuart England (as throughout pre- and early modern Europe), this concern for the individual good was held to be a distinctive feature of ecclesiastical justice.1 As Richard Cosin explains in his 1593 An Apology for . . . Jurisdiction Ecclesiastical, the typical penalties imposed by the church courts were not, strictly speaking, punishment at all, since, whereas punishment aimed either at compensating the injury, avenging wickedness, or deterring would-be offenders, canon law penalties were ‘a medicine, tending to the reformation of the delinquent.’ If they were punishment, it was of a distinctively nonpunitive sort: such punishment as especially aimeth at his bettering upon whom it is inflicted, being a punishment tempered with mercy . . . [For] the party is indeed punished as an offender, yet the rigor of the penalty is spared, & he commiserated and pitied as a man and therefore apt enough to offend through human frailty.2 An anonymous manuscript from the same period similarly depicts ecclesiastical justice as concerned ‘only for matters touching the soul’s health of the parties summoned.’3 That is, in contrast to the penal justice of the temporal courts, the penalties imposed by the courts Christian look toward the salus – the health, the salvation, the solace – of individual sinners. As Edward Coke would write in 1628, ‘the spiritual judges’ proceedings are for the correction of the spiritual inner man, and pro salutate animae, to enjoin him penance.’4 While Cosin grants the church courts far broader jurisdiction than this, he too associates ‘evangelical’ justice – the specifically Christian justice whose 102

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‘principal end’ is not punishment but ‘to procure repentence & amendment in him which offendeth’ – with penance.5 The concern for the moral and spiritual good of individuals that characterizes the penitential justice of the church courts also shapes the Duke’s risky scheme to make justice happen. Moreover, while his matchmaking tactics, as we have seen, conform to Chancery rules and principles, Chancery adopted those specific rules and principles from canon law. The enforcement of good faith promises, the allowance of certain sorts of deception, and the power to compel specific relief were part of Chancery’s canon law inheritance, and therefore also standard practice in the Elizabethan and Jacobean church courts. Furthermore, as is well known, these, and not Chancery, had jurisdiction over the sorts of sexual and matrimonial trespasses driving the plot of Measure for Measure: it was the ecclesiastical chancellor who ‘in nearly every session . . . would hear the anguished plea of a jilted suitor clutching at the fading mirage of marital happiness . . . [or] the unmarried motherto-be, abandoned by a casual lover.’6 Given all this, one is inclined, and with good reason, to view the play in relation to the church’s justice system. Yet it seems important that in Measure for Measure this penitential justice is not administered by a church court or an ecclesiastic but by the temporal ruler. The Duke is not a cleric, albeit that for most of the play he dresses like one. Moreover, if his actions conform to canon law, they conform to precisely those canon law rules that were also among the most distinctive features of equity. In so far as the workings of justice in Measure for Measure gesture towards these crossover practices, the play directs our attention not to the ecclesiastical courts per se but to the crossover itself – the same crossover figured by the mixta persona of the Friar-Duke. As we have had occasion to note before, the play directs our attention to the cultural sites where the sacred informs the secular order of the state, or what I have been calling sacral loci. It was, in fact, the insistent penetration of church and state in Measure for Measure that initially sent me to explore sacral kingship and the equity courts, as venues similarly marked by this unfamiliar coupling of secular and sacred. One’s sense that the crossover of the penitential justice administered by the courts Christian into the play’s representation of secular justice lies at the heart of Measure for Measure increases if one looks at Promos. Whetstone has the same basic plot – a pregnant woman, her lover and would-be husband sentenced to death, the deputy’s monstrous

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proposal, a final trial scene presided over by a good Christian ruler and so forth – but there is no crossover. Rather, Promos throughout insists upon the distinction between penitential and penal ordering, between a justice oriented towards the salus animae and one oriented towards the bonum commune. The distinction is very clear. Fraud, official misconduct, and similar acts of injurious oppression are, as previously discussed, punished by the King and his counsellors. The lovers also suffer for their trespass, but it is not the state that punishes them. The second part of Promos and Cassandra opens with Polina (Juliet’s counterpart) mourning in near-suicidal wretchedness for Andrugio, whom she believes dead by Promos’s command; slowly over the course of the soliloquy she gropes towards resignation and insight: But what meanst thou Polina most accurst To muse why God this penance ‘joins thee to? Whose correction, although we take at worst, To our great good he doth the same bestow. So that, sith grief cannot relieve my friend . . . Sith mighty God appoints my penance so, In mournful song I will my patience show. (2.I.i) This is, as she realizes, God’s penitential justice pro salutate animae. God chastizes her through loss and heartbreak to train her ardent and hasty soul in the needful discipline of patience. Andrugio is similarly punished. Although alive and free through the good offices of the jailor, his escape leaves him a homeless, hungry fugitive. This too is penitential justice at work. He has already learnt its lessons when, in Act IV of the second part, he enters ‘as out of the woods,’ musing: This savage life were hard to brook if hope no comfort gave. But I (whose life from tyrant’s wrath God’s providence did save, Do take in worth this misery, as penance for my miss, Still fed with hope to change this state when God’s good pleasure is. (2.IV.ii) Having submitted to the penitential chastisement enjoined by God, Andrugio and Polina can be reunited. The final trial scene has nothing to do with them, nor does King Corvinus concern himself with their fate. (He, of course, thinks Andrugio is dead.) The play interleaves the scenes in which the lovers do penance for

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their sweet sin between the far more numerous episodes depicting royal justice punishing those who prey upon the social body, the juxtaposition calling attention to the difference between the penitential justice of God and the penal justice of the state. Neither, it might be added, represents what we would think of as a secular (or protosecular) domain: Whetstone is not contrasting the secular state to privatized religion nor Christian social order to Millian privacy. His implied distinction between penal and penitential spheres, however, closely resembles the Thomist position that human law participates in divine law (an unjust law being not really a law at all)7 but for the most part restricts itself to ‘other-regarding’ wrongs, leaving unpunished many things that divine providence will nevertheless avenge.8 More important, Whetstone’s distinction also conforms to a fundamental principle of the ius commune,9 which demarcated ‘a sphere of life into which the public authorities, whether from church or state, were not entitled to enter,’ on the grounds that ‘no one is obliged to reveal his own shame’ (nemo tenetur detegere turpitudinem suam). Two scriptural texts were commonly cited in support of this position: Christ’s rebuke of those stoning the adulteress and Joseph’s decision to put Mary away privately rather than turn his pregnant bride over to the magistrate for punishment.10 As these examples indicate, the paradigmatic type of shameful act that, in the eyes of canon law, fell outside the jurisdiction of public tribunals was sexual turpitudo, which, in turn, helps to explain why sex, along with property and religion, make up the weirdly heterogeneous essence of the modern concept of privacy as the domain off-limits (to some extent and in some respects) to the state.11 While early modern canonists did not treat nemo tenetur in modern right-to-privacy terms (for example, sexual transgressions that resulted in pregnancy or scandal were, in Angelo’s words, ‘open made to justice’: [II.i.21]), it was nevertheless understood to deny the authorities, both civil and ecclesiastical, an unlimited right to pry.12 The canonists sought to defend the private lives of ordinary citizens from intrusive official scrutiny, since, they insisted, some aspects of human life were inappropriate for ‘public ventilation.’ Private, shameful acts might be whispered to a priest in confession or to God in prayer, but individuals were not under an obligation to publicize their secret failings and lapses in open court.13 Such ‘self-incrimination was the very purpose of the penitential forum,’ not the ‘external forum’ of public judicial process.14 Whetstone’s contrast between the (sexual) guilt expiated and healed by penance and the crimes punished by the magistrate has been

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shaped by a traditional sense of the genuine limits on the law’s jurisdiction over the ‘spiritual inner man.’ (Sex, wonderfully enough, was always classified as a spiritual activity.) In both theory and practice, this limit had a two-fold character. Some matters – including sexual lapses that had for one reason or another become public – belonged to the penitential justice of the courts Christian, not to the penal justice of the state. Other matters, those that were strictly private as being either unknown or unknowable (a person’s thoughts, intentions, and desires, but also masturbation or an illicit love affair that had not resulted in pregnancy or scandal) were held to be outside the jurisdiction of any law court, civil or ecclesiastical; they might be dealt with by confession, pastoral counsel, or divine chastisement, but they were not the business of the authorities.15 However, since there are no church courts in Promos, all justice being in the hands of the civil magistrate, as far as the play is concerned, this is a distinction without a difference: Whetstone does not treat the relation of the lovers’ penitential suffering to ecclesiastical penance. The distinction that matters is that between the state and the soul, between the bonum commune and the salus animae, between penal and penitential justice. The political vision of Whetstone’s play hinges on this contrast, with its strongly marked bounding of state power. It underlies, as we have already seen, the prisoners’ scene in the second act of part one, where the men and women condemned by the state, while admitting their crimes and acknowledging the justice of their sentence, nevertheless hope for divine forgiveness, since ‘Our secret thoughts thou Christ dost know’ (1.II.vii). Judges and juries, conversely, weigh only the outward act, for the simple reason that they cannot see, and hence cannot take into account, the condition of the accused’s soul: his secret thoughts, temptations, repentance, motives, struggle. From the late eleventh century on, moreover, this epistemic constraint had come to define the boundaries of the state’s jurisdiction. The claim that the temporal courts were not in the business of judging intent emerged as part of the ecclesiastical campaign to differentiate crime from sin, and to withdraw the latter from the hands of the secular ruler. The state was to punish for the breach of the peace or the breaking of the law; it did not punish sin qua sin.16 As Pollard and Maitland long ago remarked, medieval English law observed these limits: ‘It cannot go behind the visible fact. Harm is harm and should be paid for. On the other hand, where there is no harm done, no crime is committed; an attempt to commit a crime is no crime.’17 Hence, according to a late medieval yearbook, ‘The thought of man shall not

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be tried, for the devil himself knoweth not the thought of man.’18 The counsel for the defense in a 1562 suicide case invokes the same principle: ‘the imagination of the mind to do wrong, without an act done, is not punishable in our law; neither is the resolution to do that wrong, which he does not, punishable; but the doing of the act is the only point which the law regards.’19 Writing in 1593, Cosin describes how the Queen has ‘oftentimes caused to be openly notified in the Star Chamber that her gracious meaning is not to search into men’s consciences, nor to force the same, but only to extend the laws upon crimes committed either in word or deed.’20 As Isabella succinctly puts it, ‘Thoughts are no subjects, / Intents but merely thoughts’ (V.i.446–47). The social forms of the early Middle Ages were characterized by the deep interpenetration of temporal and spiritual domains. The claim advanced by the papal theologians of the eleventh and twelfth centuries that civil law dealt with crime, canon law with sin was precisely an attempt to untangle them, to differentiate the state from the church. The line they drew followed the seam between body and soul – the same line Edward Glascock would draw 400 years later when he informed his fellow MPs that ‘man is made of two parts, a soul and a body; and there are two governments, one imperial, the other sacerdotal; the first belonging to the common-wealth, the other to the church.’21 The state takes cognizance of the outward bodily act, of the wrong done; the doer’s soul pertains to the church and to God – in some cases, only to God.22 As before, the private inner domain that lies outside the state’s jurisdiction emerges in relation to the penitential system and as the subject of penance;23 it has nothing to do with the conceptualization of personal privacy in terms of property rights.24 To restrict the scope of temporal justice to acts and facts did not (not inevitably, anyway) secularize it. It was, as I have tried to indicate, a restriction under which English law operated from the medieval to the early modern period, and perfectly consistent with a view of the state as embodying and enforcing Christian social order. Yet the restriction, as the prisoners’ scene in Whetstone suggests, tended to uncouple man’s law from God’s law and thus to wedge apart what mattered to the state from what ultimately and eternally matters. In God’s eyes, and hence sub specie aeternitatis, all that counts is ‘our secret thoughts’: faith, contrition, obduracy, despair, and the like. It is thus a commonplace of medieval and early modern jurisprudence that a judge who lawfully condemns a malefactor to death, but does so out of malice or

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greed, sins mortally.25 The judge, of course, commits no crime, since human law ignores the interior dimensions of an act. God, however, does not; and the corrupt intent, which eludes temporal justice, will damn a man hereafter. Canon law inquires into the will and heart, into what Coke terms the ‘spiritual inner man,’ precisely because, unlike civil law, which aims at the well-being of society, it seeks, by bringing men to repent, that they ‘may attain to glory.’26 The church’s jurisdiction over the inner man is inseparable from its concern with individual salvation. Conversely, the fact that the state has little to do with subjective and soteriological realities defines it: which is to say that the state is defined over and against the church (or, more generally, the spiritual). The dual justice system of medieval and early modern Europe, which segregates the justice that orders Christian society by punishing offenses from the justice that redeems sinners by imposing penance, embodies this fundamental distinction between temporal and spiritual regimens. Hence, as we have seen, King Corvinus takes decisive action against the injuries might has inflicted on right, but he is not a providential surrogate nor agent of the final comic resolution: he does not bring about either the repentance or reunion of the lovers; his obligations are to the common good, not that of individuals; he is not in the business of saving souls. This distinction, so important to Whetstone’s play, has vanished from Measure for Measure. While Isabella’s claim in the final scene that ‘thoughts are no subjects’ invokes the traditional division of spiritual from temporal jurisdiction, the Friar-Duke has been taking cognizance of his subjects’ thoughts throughout the play. He hears Mariana’s confession (V.i.519) and brings Juliet to confess her sin and repent (II.iii.21–37). He comes to Claudio in prison to help him prepare his soul for death (III.i.1–41).27 He withholds from Isabella and Angelo the fact that Claudio lives, to train both in the acceptance of death, but also so that Isabella might learn to forgive sin, and Angelo to repent it (V.i.390–2, 467–70). With the Barnadine subplot, the Friar-Duke’s concern for the inner man and the after-life moves to center stage.28 The subplot, and the character, occur only in Measure for Measure; in Whetstone, the jailor, having let Andrugio escape, simply substitutes the head of a prisoner executed the day before. The Duke initially plans to do the same, replacing Claudio with Barnadine, who was scheduled to die that day anyway, on the executioner’s block. Yet Barnadine’s salvation also matters, so the Duke, in his role as ‘ghostly father,’ returns to the jail to ‘advise . . . comfort . . . and pray with’ the

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condemned man (IV.iii.41–4). To this offer of pastoral care, the latter responds with disarming bluntness (and perfect self-knowledge), Friar, not I. I have been drinking hard all night, and I will have more time to prepare me, or they shall beat out my brains with billets. I will not consent to die this day, that’s certain. (IV.iii.45–8) Refusing all further ministration, Barnadine retires to his cell, at which point the Friar-Duke decides that it is worth putting Claudio back in danger rather than proceed with the head-switch scheme. As he tells the Provost, he has found Barnadine A creature unprepared, unmeet for death, And to transport him, in the mind he is, Were damnable. (IV.iii.57–9) And so he returns to the prison to ‘persuade this rude wretch willingly to die’ (IV.iii.71). The Duke seems to be making two claims here: were Barnadine to be executed in his present frame of mind, he would be damned, but the Duke would also risk damnation. The second claim (reading ‘damnable’ as modifying ‘to transport’ rather than ‘him’) has the syntactic edge, and is, in fact, the more significant point. That Barnadine has a good shot at hell is obvious; it is not obvious that it would therefore be a mortal sin for the Duke to allow him to be put to death. This second claim makes the civil magistrate responsible to God for his subjects’ souls. The Duke, of course, is pretending to be a friar in this scene, but his interest in Barnadine’s prospects for eternity cannot be mere play-acting, since it continues undiminished after he resumes his ducal identity. Herein lies the problem. The Duke’s compassionate regard for the sufferings of women and children, his desire that Isabella forgive Angelo, that Angelo repent, that Claudio and Barnadine not die unprepared, attests to an overriding concern for the moral and spiritual good of individuals. He makes windows into men’s souls, extending the gaze of authority into private, interior, and ultimate moral actualities – holiness and sin, guilt and repentance, heaven and hell – matters not usually thought of, now or then, as the business of the state and its rulers.29 His administration of justice ignores the boundaries separating civil from ecclesiastical jurisdiction and the external from the

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penitential forum – boundaries clearly visible in Promos and in the socio-political landscape of Shakespeare’s England.

The spiritual jurisdiction of the state Yet the vision of the state that the Duke’s conduct implies is not as fanciful as I had thought. If it does not represent the actual workings of Tudor–Stuart polity, there are nonetheless points of contact – scattered, fragmentary, but suggestive. First, like Duke Vincentio, James was, at least in his own eyes, king of souls. In 1598 he had thus written that God required him ‘upon the peril of his soul, to procure the weal of both souls and bodies, as far as in him lieth, of all them that are committed to his charge,’ this being the ‘clearest civil and fundamental law whereby the king’s office is properly defined.’30 This view of the king as accountable to God for his subjects’ salvation has close affinities with the quasi-priestly notion of monarchy that, as we have seen, lies at the heart of sacral kingship. So James writes in Basilicon Doron, that the monarch participates in both ‘the ecclesiastical and civil estate. For a king is not mere laicus, as both the Papists and Anabaptists would have him, to the which error also the Puritans incline over far.’31 He returns to this passage in A Meditation, this time explicitly linking the monarch’s sacerdotal character to his cure of souls: ‘Kings therefore, as God’s deputy-judges upon earth, sit in thrones . . . not as laics . . . but as mixtae personae . . . being bound to make a reckoning to God for their subjects’ souls as well as their bodies.’32 Two points are worth remarking here. First, this is how James initially struck his English subjects. The same sacerdotal understanding of kingship James propounds in his own writings also dominates the earliest English portrait of the new king: The Sum and Substance of the Conference . . . at Hampton Court by William Barlow, who, as Dean of Chester, had attended the Conference as a member of the bishops’ party. Barlow’s account describes the bishops and peers as time and again overcome with wonder at a monarch who was not merely a secular prince but theologian, exegete, and divine. Dazzled, the Archbishop of Canterbury bursts out that ‘undoubtedly his Majesty spake by the special assistance of God’s spirit’; then ‘the Bishop of London upon his knee protested that his heart melted within him . . . with joy’ in having ‘such a king as, since Christ his time, the like . . . hath not been.’ In a remarkable aside, ‘my Lord Chancellor, passing out of the privy-chamber, said unto the Dean of

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Chester [Barlow himself] . . . “I have often heard and read that Rex est mixta persona cum sacerdote, but I never saw the truth thereof till this day.”’33 The whole of Barlow’s text is lit by rapturous amazement at James’s self-disclosure as priest-king (although the Puritan representatives at Hampton Court were probably less enraptured); it bears witness to a cultural and political moment in which – to cultural and political ideals in terms of which – Duke Vincentio makes sense. Moreover, as James’s remark about papists making kings mere laici indicates, royal claims to spiritual jurisdiction are staked out against the Roman church. Aquinas had held that the state deals in intermediate ends – peace, prosperity, virtue; but the final end of human life is ‘the enjoyment of the divine,’ and this no secular ruler can provide. Hence, since ‘those who are responsible for intermediate ends should be subject to the one who is responsible for the ultimate end . . . under the law of Christ, kings should be subject to priests.’34 The Henrician Reformation, as mentioned earlier, drastically eroded this vertical separation of spiritual from civil power by drawing the former down into the latter: the king did not abolish the spiritual jurisdiction of the church; he assumed it. So in his 1531 additions to Doctor and Student, which defend in advance the break with Rome, St German asserts that ‘the king in his Parliament, as the high sovereign over the people . . . hath not only charge on the bodies, but also on the souls of his subjects’ – the same phraseology (except for the bit about Parliament) that James would use three-quarters of a century later.35 The king is sovereign, as likewise the state is sovereign, because ‘responsible for the ultimate end,’ which is what it means to have jurisdiction over souls. But if the Reformation sacralized polity, it also secularized it – a contradiction that comes to the fore during the Oath of Allegiance controversy (1606–c. 1615). James had imposed the Oath, which required all English subjects to swear that they held James to be their lawful king and that the pope had no authority to depose him, in the aftermath of the Gunpowder Plot as a means to distinguish loyal Catholic subjects from potential traitors. The Roman church ordered English Catholics to refuse the Oath on the grounds that it implicitly gave the prince, rather than the pope, ‘the authority of the head of the church in England.’ James responded with the Triplici nodo, triplex cuneus. Or an Apology for the Oath of Allegiance (1608), which argued at length that the Oath concerned only ‘temporal obedience to a temporal magistrate,’ the ‘allegiance of subjects to their prince’ being a wholly secular matter that had nothing to do with ‘faith and salvation of souls,’ and hence nothing to do with the

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pope.36 Yet in the same work, and occasionally in the same paragraph, James makes the exact opposite claim: that he is not merely a secular ruler but supreme head of the English church, since ‘the true and proper office of Christian kings’ is precisely ‘within their own dominions to govern their church, as well as the rest of their people, in being custodes utriusque Tabulae.’37 In James’s lucid, non-technical prose, the contradiction becomes dizzyingly explicit, but its presence can be felt throughout the Tudor–Stuart period: on the one hand, the intensification of claims for the priestly character of the King and the ecclesial character of the state; on the other, the attempt to draw a line between politics and religion (or at least between outward conformity and private belief) that would keep the state from making windows in men’s souls. In the context of the drawn-out agon between the papacy and the crown, the latter’s claim to spiritual jurisdiction has to do with the enforcement of religious uniformity, heresy laws, and the like. That is how St German understands it: to say that the king-in-Parliament has charge ‘over the souls of his subjects,’ implies that as well to the strength of the faith and to the health of the souls of many of his subjects, as to save his realm from being noted of heresy, [he may] search the cause of such division as is now in the realm by diversities of sects and opinions . . . . [and] devise some charitable way for unity and peace.38 James, at least in Triplici nodo, interprets his spiritual authority along similar lines: the ‘magistrate is the minister of God’ in that he governs the church ‘by commanding obedience to be given to the word of God, by reforming the religion according to His prescribed will, by assisting the spiritual power with the temporal sword, by reforming of corruptions, by procuring due obedience to the church,’ and so forth.39 As far as early modern political thought is concerned, this is what it means to be king of souls. Yet, while this understanding of the state’s responsibility for men’s salvation bears upon Measure for Measure, the relation seems tangential. It illuminates some of the broader political implications of the Duke’s geistliche rule (and why, in the first Spanish edition of Shakespeare, Measure for Measure is the only work deleted totaliter), but the play is not about the prince’s role as supreme head of the church within his domains.40 There is another way, however, of viewing the secular magistrate’s jurisdiction over souls. In his splendid Law and Revolution, Harold

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Berman associates this jurisdiction with the rule against executing a criminal who has become insane after having been sentenced to death. This rule, which survives in most western legal systems, originally rested on theological considerations, for if a man is executed while he is insane he will not have the opportunity freely to confess his sins and to take the sacrament of holy communion. He must be allowed to recover his sanity before he dies so that his soul will not be condemned to eternal hellfire but will instead have the opportunity to expiate his sins in purgatory and ultimately, at the Last Judgment, to enter the kingdom of heaven.41 Here the state’s spiritual jurisdiction is not, or not directly, concerned with enforcing ‘unity and peace’ among its citizens. Rather, the prohibition on executing one unable to repent makes the state responsible for the good of individuals, as well as for the common good. This, in turn, matters, not simply with reference to Shakespeare’s Duke, but because it implies that the state’s claim to spiritual jurisdiction jettisons the organicist ideal central to virtually all classical political theory, republican as well as Platonic. A remarkable passage from one of Augustine’s letters points in the same direction. The letter belongs to Augustine’s crucially important anti-Donatist writings, to which we will return at the end of this chapter, since their vision of what Christianity might look like as a political praxis would also seem to be the vision informing certain key sites in Tudor–Stuart culture, among them Measure for Measure. At this point, however, I am concerned only with Augustine’s rejection of classical organicism in a letter to the Imperial official in charge of dealing with the African Donatists. In obvious and striking contrast to Plato’s radical subordination of individual to communal felicity, Augustine urges ‘how plainly the sacred writings show that the happiness of the state has no other source than the happiness of man [non aliunde esse beatum hominem, aliunde civitatem],’ returning to the same point a few pages later: ‘the happiness of the state has no other source than the happiness of man [non enim aliunde beata civitas, aliunde homo], since the state is merely a unified group of men.’42 As the Latin makes clear, ‘man,’ in the phrase ‘happiness of man,’ refers to any one man, not mankind; the beata civitas is the city whose several inhabitants find happiness. But therefore, Augustine argues, the end of the state cannot be merely the safety, peace, and prosperity of its

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people, nor even their moral virtue, since happiness does not lie in the possession of these, but is to be found only in ‘that divine and heavenly country whose king is Christ.’ Hence, the state and those who govern it should ‘have no other aim’ than that men ‘attain to Him who will be their happiness.’43 If the state is concerned for the salvation of its citizens, then it is concerned for the individual good, since persons enter heaven as individuals, not collectively.44 Moreover, the rule against executing those unable to repent suggests that one way, perhaps a principal way, the state exercises its spiritual jurisdiction over individual subjects is through the justice system. It suggests that the governance of souls works by infusing a penitential character into the penal order. I do not at all mean to deny that English justice during the early modern period was mostly, and often savagely, penal. Yet, in general, the aspects of the justice system that get explicitly marked as Christian do have this penitential character: in one way or another, they seek the soul’s health and the reformation of the inward man, rather than the ordinary ends of Tudor–Stuart law enforcement: punishment, exemplary terror, and compensatory damages. Thus, while King James clearly holds that ‘the sword, which is ordained for punishment of vice . . . must be a sharp weapon,’ the reed-scepter that the Roman soldiers gave Christ provides another, and quite different ‘pattern to . . . kings,’ for Christ ‘being the true king of mercy, came to convert sinners and bring them to repentance, but not to destroy them.’45 James never abjures penal severity, but he also never associates it with the imitation of Christ. The same equation of Christian with penitential justice informs Hake’s theophanic portrait of the Lord Chancellor, whose ‘commiseration and pity’ toward the wrongdoer as well as the wronged is ‘patterned by the lenity of the mild Saviour of mankind, the Lord Jesus.’46 Unlike King James, however, Hake’s Elizabethan Lord Chancellors were not mixtae personae but temporal judges presiding over a temporal court. One does not think of the temporal courts as administering a species of penitential justice, and with good reason. Yet Tudor–Stuart accounts of the two main equity courts – that is, of Chancery and Star Chamber – do sometimes describe them in precisely this way: as concerned with the soul’s health and the salvation of sinners, and thus as bordering on courts Christian. In his Treatise of the Court of Star Chamber, Hudson pays tribute to the court’s practice of having the accused present at his hearing, at which time he might supply any information omitted by his counsel

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or move compassion by his submission or penitence, which seldom goeth from that bar unrewarded; and there he receiveth satisfaction of the just proceedings against him, and the compunction many times of his sins . . . . yea, the court is oftentimes moved to become suitors to the king for mercy, he having committed unto them his justice, reserving his mercy unto himself; which perhaps they would not do, if a spectacle of sorrow did not stand before them.47 The two-stage process described here, where the contrition of the offender moves the judges to plead on his behalf with the king, links the penitential justice of the equity courts to the royal imitatio Christi; it suggests the institutional context for James’s desire to resemble ‘the true king of mercy’ by bringing sinners to repentance. Its relation of penitent, judges, and king also, and quite strikingly, resembles the medieval intercessory hierarchy of penitent, saints, and Christ – an extraordinary transfer of Catholic soteriological mediation into the structures of the Protestant state. The defendant’s role as ‘spectacle of sorrow’ links Star Chamber procedure to Christian penitential justice in yet a further way, since the public penances imposed by the ecclesiastical courts offered precisely such spectacles. Persons convicted of defamation, for example, would have to kneel during the church service before the injured party, and, in the presence of the assembled congregation, ask forgiveness.48 A 1594 order of penance for sexual trespass has the penitent (in this case, a woman) stand in the church porch ‘from the second peal to morning prayer until the reading of the second lesson, desiring people that pass by her into the church to pray God for her and to forgive her’; later, kneeling in the center aisle, she was to address her fellow-parishioners: Good people, I acknowledge and confess that I have offended almighty God and, by my evil example, you all . . . for which I am most heartily sorry, and I ask God and you all most hearty forgiveness for the same, promising by God’s help never to offend hereafter in the like again.49 For Hudson, the presence of the accused before the Star Chamber judges makes possible something close to these antiphonal rituals of contrition and compassion. He makes no effort to disguise the fact that Star Chamber, unlike the courts Christian, exacted real, and often heavy, penalties; so did all the temporal courts, and I assume he took

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this for granted. What draws his attention and praise is the crossover, however incomplete, of penitential motives, and therefore of specifically Christian meaning, into the secular justice system. That Chancery was also understood to have a penitential character can be seen from an early seventeenth-century jurist’s remark that when the chancellor ordered that a common law verdict not be enforced, he was not reversing the verdict per se but ‘only medleth with the corrupt conscience of the party.’50 That is, while common law judgments were intended to redress the wrong suffered by the plaintiff, Chancery, like the courts Christian, attended to the over- burdened conscience of the wrongdoer, which it cleansed by making him, in Ellesmere’s words, ‘see that [done] which in equity and conscience ought to be done.’51 In his introduction to Lord Nottingham’s Chancery Cases, D.E.C. Yale remarks that the pre-modern ‘notion of conscience was based rather on moral than on legal or juristic grounds,’ but its grounds, in fact, seem specifically theological, as the episode he then goes on to relate makes clear. In 1489 Archbishop Morton, the current Lord Chancellor, had memorably laid down that every law should conform to the law of God ‘and the law of God is that an executor who fraudulently misapplies the goods and does not make restitution will be damned in Hell, and to remedy this is to accord with conscience as I understand it.’52 This attempt to explain the sense in which Chancery ‘medleth with the corrupt conscience’ responded to an objection the Chief Justice of the King’s Bench, Sir John Fineaux, had raised to Morton’s earlier claim that ‘nullus recedat a curia cancellariae sine remedio’ (no one departs from Chancery without remedy). If this were true, Fineux had protested, then ‘nullus indiget esse confessus’ (no one [that is, no offender whom Chancery had compelled to remedy the wrong he had committed by making restitution] would need confession).53 Against Fineaux’s claim that some wrongs belong in the penitential forum rather than the courts, Morton then gave the reply quoted above that Chancery, like the church, was in the business of saving sinners. In judging according to conscience, in J.H. Baker’s words, the medieval chancellors were ‘exercising the temporal counterpart of the confessional.’54 Although it is not clear that Morton’s position represented the dominant Tudor–Stuart view of Chancery, it must have remained a live option, since Nottingham, an eminent late seventeenth-century Lord Chancellor, took pains to refute it. Like Fineux, he challenges the axiom of ‘nullus recedat’ on the grounds that some cases ‘are only to be considered between a man and his confessor,’ so that a

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person can be bound ‘sub periculo animae’ (at the risk of damning his soul) to perform some act without having any legally enforceable obligation to do so.55 For our purposes, what matters is not that Fineux and Nottingham denied the identification of chancellor and confessor but that they needed to deny it, that this claim was on the table. The debate over the relation between chancellor and confessor hinged on the relation between civil and penitential justice. Morton’s position, and the long-standing controversy it generated, thus point in the same direction as the other evidence we have been looking at: namely, that the crossover of penitential forms into temporal governance defines a model of Christian polity that made the state responsible, at least in part, for the cure of souls and hence for their ultima finis – a model that vested the state’s spiritual jurisdiction in the crown but also in the courts – the equity courts above all – with the quite striking result that concern for the salvation of lawbreakers and malefactors becomes the mark of Christian social order. Morton’s chancellor-confessor, less interested in avenging wrongs than saving wrongdoers, presupposes this version of the regnum Christi, as does Shakespeare’s Friar-Duke, who meddles with corrupt consciences, administers equity, hears confessions, and cares intensely about his subjects’ salvation, including Barnadine’s.56

Puritans, penance, and ecclesiastical polity Barnadine is important. The character does not exist in Measure’s sources, although one might view him as the inverse counterpart to Whetstone’s prisoners, his impenitence and reprieve presenting, as it were, a negative image of their contrite deaths. But these changes mean that Barnadine introduces issues not in Promos: in particular, what to do about the presence of goats in the godly sheepfold. In Tudor–Stuart England this was a profoundly important and profoundly divisive issue, at the core of Puritan-Anglican debates over the nature of Christian community.57 It is relevant here because the conflict over how to deal with, in Bucer’s words, ‘godless, criminal, and wicked men,’ was a conflict between penitential and penal models: between, that is, the view that justice, or at least Christian justice, aimed at the offender’s repentance and restoration into the community and the view that its purpose was rather to cut off the diseased limb lest it corrupt the social body, either because the infection would spread to the other members or because the evil, if tolerated, would expose the whole community to visitations of divine

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wrath.58 Puritans generally held the latter view of justice, which is why they were called Puritans, as opposed to double-predestinarians or presbyterians or fundamentalists. The name bespeaks the cultural perception. We have already touched on some of this in discussing Puritan attempts to transfer jurisdiction over sexual offenses from the ecclesiastical to the civil courts on the grounds that the former were soft on sin, that they imposed medicinal penances for evils that should have been punished by death. Measure for Measure replays this debate: Angelo arguing that the law must not be made a scarecrow unable to terrify birds of prey, Escalus responding that punishments should heal rather than destroy the offender (II.i.1–6). Barnadine’s pardon raises the same issues, although in a more radical form, since it is one thing not to execute a man for sleeping with his fiancée, another to release a convicted murderer because he is not ready to die. I will get back to the significance of this radicalization at the end; at this point, what I want to argue is that, like Angelo’s sentencing of Claudio, the Duke’s pardon of Barnadine engages the central issues dividing Anglicans from Puritans, issues not concerning altar rails or irresistible grace but the nature of Christian community. From the beginning, Puritanism typically rejected the penitential model in favor of a harshly penal enforcement of virtue. So Bucer excoriates the view that ‘those who have fallen into graver sins’ like swearing, neglect of holy days, insubordination, theft, and adultery might ‘be renewed by penance’ rather than suffer ‘the punishments decreed by God’ for such ‘vicious crimes’ (380–2). The few times he does talk about penance, it takes on a strangely penal cast, as when he remarks that sinners who are ‘still curable must be brought to do penance and show the Church adequate fruits of repentance, just as in civil affairs the citizens are occasionally remanded for a time to prisons and chains on account of their crimes’ (219–20). The same assimilation of the penitential into the penal can be seen in Richard Bernard’s extraordinary common law allegory of Puritan moral inwardness, The Isle of Man (1630), where confession and repentance turn out to be like what happens ‘when a malefactor is brought before a justice’: namely, ‘the justice is first to examine him, then to set it down, then to bind some over to prosecute against the felon at the Assizes.’59 This blanket repudiation of penitential in favor of penal justice characterizes the Puritan ‘reformation of manners,’ with its call for strict, punitive laws against immorality and impiety. It is also the basis of

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Puritan ‘discipline,’ both ecclesiastical and civil. Penance aims at reconciliation; the aim of discipline is the exact opposite: to distinguish, and separate, in Baxter’s words, ‘the clean from the unclean.’60 Discipline ‘purifies’ a community by getting rid of the goats. The passage from De regno Christi where Bucer remarks that sinners should be punished rather than ‘renewed by penance,’ makes this clear: there can be no dangerous beasts as harmful to the commonwealth as men who are plainly godless, empty of God, sons of the devil. And so all the sons of God must exert their utmost concern and all their strength to purify the commonwealth of such pests as soon as possible, according to the Word of the Lord: ‘You shall exterminate . . . evil from your midst.’ . . . If men do not abhor such vicious crimes and misdeeds more than death itself, how can there be preserved among them honesty, true charity, humaneness, and a wholesome and necessary sharing of goods and life which is worthy of human beings? . . . For bringing this about, God has judged it necessary that those guilty of these crimes and misdeeds should pay the commonwealth the penalty of death in order to spread the fear of offending . . . And so whoever decides that these misdeeds of impiety and wickedness are to be kept out or driven from the commonwealth of Christians by more mitigated punishment than death necessarily makes himself wiser and more loving than God as regards the salvation of men. . . . Let them consider and promptly imitate the example of the prince and king who was a man after God’s heart . . . ‘Early in the morning I shall strike all the wicked on the earth, and I shall cut off from the city of God all doers of iniquity.’ (380–2) As this final paragraph implies, for Bucer the main role of the civil magistrate in Christ’s kingdom is precisely to separate the godly from the ungodly, and destroy the latter. While ‘earthly kings’ cannot endow men ‘with true piety and righteousness,’ they can ‘cut down from the field of the Lord, from the people entrusted to them, the useless trees, briars, and thorns . . . For the Lord has commanded his people quite strictly that they are to drive criminal and incorrigible men from their midst, and to burn them with fire, and thus to wipe out their offensiveness as completely as possible’ (180–1). Baxter’s holy commonwealth likewise hinges on dividing the goats from the sheep, although he would have the former disenfranchised

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rather than slaughtered. The inevitable and disasterous result of Harringtonian republicanism will be, Baxter avers, ‘impious Parliaments chosen by an impious majority of the people.’ The possibility of a Christian republic depends, conversely, on ‘the foundation of Parliaments [being] reformed, by an exclusion of truly unworthy persons from the elections (from choosing or being chosen),’ the ‘unworthy’ being those guilty ‘of any of those sins for which God would have men put to death or cut off from his people.’ To this end, the magistrate must ‘drive on all that are pastors . . . to exercise Discipline by distinguishing the clean from the unclean.’ If the election laws included a mechanism for legally discerning ‘the qualified from the unqualified,’ so that only ‘virtuous men’ could vote, ‘we should then build all the fabric of our government on a rock, that else will have a foundation of sand.’61 Puritan ecclesiastical discipline (often referred to as the Genevan discipline, or simply ‘the Discipline’) likewise centered on excluding the ungodly. As John Knox, the fiery Scottish Puritan, put it, ‘a chief point’ of a minister’s office was the ‘authority to divide and separate the lepers from the heal.’62 Bucer, writing during the same years, recommended the early church practice of appointing a doorkeeper to make sure that ‘no unworthy persons should mingle in the sacred gathering’ (236). The Discipline institutionalized a longing for purity that tended towards the semi-separatism and closed communion William Ames defends in his Conscience with the Power and Cases Thereof (1639), arguing that Christians should ‘endeavor that they may live in those churches where the Precious is separated from the vile,’ since for a church to ‘tolerate the wicked . . . doth pollute the Communion in itself,’ and ‘the mixture which doth arise from this toleration doth diminish the consolation and edification of the godly.’63 While the push to install the Geneva discipline subsided during the late Elizabethan and Jacobean era, the ecclesiological repressed returned as soteriology. Puritan literature of the period between 1580 and 1620, although skirting questions of church polity, militantly foregrounds the hard line dividing goats from sheep. So in Dent’s fabulously popular Plain Man’s Pathway, when the garden-variety conformist (with the wonderfully Platonic name of Antilegon) asks, ‘do you make it so great a matter if a man be a little overtaken with drink now and then? There is no man but he hath his faults, and the best of us all may be amended,’ the Puritan (and authorial spokesman), Theologus, responds,

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I see you would fain make fair weather of it, and smooth over the matter with sweet words as though there were no such great evil in it. But howsoever you mince it . . . . all drunkards are notorious reprobates and hell-hounds, branded of Satan and devoted to perpetual destruction and damnation. Antilegon, unsatisfied, continues to question Theologus’s fiercely polarized categories, I confess I am a sinner, and so are all others for ought I know; there is no man but he may be amended. I pray God send us all of His grace, that we may please Him and get to heaven at last. Theologus will have none of this solidarity: Now you would shuffle up all together, as though you were as good as the best, and as though there were no difference of sinners; but you must learn to know that there is a great difference of sinners. . . . There is as great difference betwixt a sinner and a sinner as betwixt light and darkness; for though God’s children be sinners in respect of the remnants of sin within them, yet the Scriptures call them just and righteous.64 In Anatomy of Abuses, Stubbes at one point calls for branding adulterers, not as punishment but ‘to the end [that] the honest and chaste Christians might be discerned from the adulterous Children of Satan.’65 What matters is to make visible the essential and, since a brand is indelible, permanent otherness of the ungodly. Moreover, although the brand is imposed for a specific sin, it marks the person branded as reprobate. One notes a similar move in Dent, whose eight signs of damnation correspond fairly closely to the seven deadly sins, except that sins can be repented, but damnation is forever.66 To equate sins with signs of damnation implies that only bad people do bad things: that only Children of Satan commit adultery, that only hellhounds get drunk. On this assumption, penitential justice makes no sense, which is why, I suppose, Puritans could make no sense of it. Goats do not turn into sheep. None of the wrongdoers in Lupton’s Mauqsun repents. While no Puritan I have read holds that repentance is impossible, they mostly seem to feel that the wicked become godly about as often as Ku Klux Klan members join the Peace Corps.

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Whitgift lays out the opposing position in his several responses to Cartwright’s disciplinary polemic. According to the Archbishop, a ‘whoremonger’ may repent and become a good man, even a good priest; and while ‘an whoremonger, a drunkard, a covetous person’ ought not ‘be chosen a bishop,’ yet ‘such as have been guilty of these crimes,’ being ‘now of godly conversation,’ might very well be so chosen. For, as an earlier passage had argued, ‘the mercy of God in His Son Jesus Christ is infinite’: He pardons ‘wilful errors and sins’ and ‘altereth the mind of man even in a moment.’67 That sinners can and do repent is rooted in Whitgift’s bedrock understanding of who God is. It is equally central to his understanding of Christianity. In his first reply to Cartwright, Whitgift had mentioned in passing the ‘great difference betwixt the severity of the Law and the lenity of the Gospel.’ Cartwright pounced on the distinction as borderline Manicheanism, and proceeded to argue for an unremittingly penal version of Christian justice: For to say that God was then a severe punisher of sin, and that now He is not at so great hatred with it, but that He will have it gentlier and softlier dealt with, is even all one in effect with that which supposeth two Gods. I will join with you in it that the transgressions of the law in the time of the Gospel ought rather to be severelier punished than they were under the Law. In reply, Whitgift argues that the supersession of the Law by the Gospel marked a shift in the divine moral economy from corporal punishment to repentance for the ‘purging of sin.’ This was not, however, a shift from penal to penitential justice, because for Whitgift divine justice is always, sub specie aeternitatis, penitential. The corporal punishments of the Law were ‘full of mercy, because hereby the people should rather be purged from their sins than condemned.’ Once sinners had paid the temporal penalty imposed by the Law, no eternal ‘revengement shall afterward hang over their souls.’ Under the Gospel, sins are purged by repentance rather than punishment, but God’s justice always aims at the soul’s health and salvation.68 Whitgift’s immediate concern is to vindicate the practice of the Elizabethan church courts, but, as before, the defense of penitential justice is bound up with an ideal of Christian community that, rather than acknowledging ‘a great difference of sinners,’ tends to ‘shuffle up all together.’ This disagreement over the make-up of Christian community was, Peter Lake concludes, ‘arguably the crucial divide in

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English Protestant opinion during the period.’69 From the Elizabethan era through the Civil Wars, Anglicans and Puritans split over the problem of the ungodly, over what to do with Barnadine. Whitgift focuses less on community than governance; his claim that ‘the evil are continually mixed with the good in this world, even in the most purest church’ is part of an argument against allowing congregations to elect their own minister; it articulates only obliquely, if at all, an ideal of community.70 With the decline of the quasi-presbyterian classis movement within the Church of England in the 1580s, however, Anglican apologetics tended to redirect its critique from presbyterianism to Puritanism: from, that is, the ecclesiology of the Protestant Left to its divisive sheep-and-goats sociology. Hooker worries this latter issue throughout the Laws. The ‘Preface’ thus remarks on the disturbing Puritan habit of referring to themselves as ‘The brethren, The godly, and so forth,’ their opponents as ‘worldlings, timeservers, pleasers of men not of God.’ The opening of Book 3 picks up and develops the theme. Here Hooker, jettisoning not simply Puritan but mainline Calvinist ecclesiology, argues that personal holiness is not a requirement for membership in the visible Body of Christ: that all baptized persons who have not explicitly renounced the faith count as sheep, even though some of these sheep are very badly behaved indeed, ‘yea, although they be impious idolaters, wicked heretics, persons excommunicable, yea, and cast out for notorious improbity.’ Thus even when the Israelites ‘bowed their knees to Baal’ so that ‘the wrath of God was most fiercely inflamed against them,’ nevertheless, ‘retaining the law of God and the holy seal of his covenant, the sheep of his visible flock they continued even in the depth of their disobedience and rebellion.’ So, likewise, those who retain the ‘external profession’ of Christianity are ‘of the visible Church of Christ.’ Hooker returns to the subject again in Book 5, this time explicitly linking the question of community with that of penance. God has not, he comments, given us either the means or permission to distinguish ‘the heirs of the kingdom’ from the ‘castaways’; hence ‘the safest axioms for charity to rest itself upon are these: he which believeth already is, and he which believeth not as yet may be, the child of God.’ As this final clause implies, we are not ‘during life altogether to condemn any man’ precisely because ‘there is hope of every man’s forgiveness, the possibility of whose repentance is not yet cut off by death.’71 Hooker’s generous, almost promiscuous, version of Christian community remained central to Anglican self-definition vis-à-vis

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Puritanism up to the Civil War. Whereas Ames had called for a church where ‘the precious is separated from the vile,’ the Laudian Robert Skinner, preaching before King Charles in 1634, urges the redemptive power of mixture: the Apostle [Paul] would have men pray ‘everywhere, lifting up holy hands’. . . . But are holy hands everywhere? What shall the sinner do, that is destitute of holy hands? What else but to the Temple with the Publican? There he shall meet with holy hands, in the holy assembly, and may speed the better, be graciously accepted for their sakes. . . . In my devotions, let me join with the righteous, and then his prayer (I shall hope) will make way for mine.72 Thomas Fuller’s moderate and irenic The Holy State and the Profane State, published in 1642 – the year the world it described was lost – includes a chapter on the Puritan sectaries whose title, ‘The Rigid Donatists,’ points to the Augustinian origins of this inclusive churchmanship. For Fuller, the center of the Anglican–Puritan debate is still the problem of the ungodly. Fuller, of course, denies that the godly are ‘bound to sever from the society of the wicked,’ first because ‘it is wholesome for a flock of sheep for some goats to feed among them,’ but also because ‘if men should make the separation,’ far too many errant sheep will be mislabeled goats: ‘weak Christians would be counted no Christians, and those who have a grain of grace under a load of imperfections would be counted reprobates.’ Fuller, like Whitgift, is a Calvinist, or at least he feels comfortable using the language of predestination; what divides him from the Puritans is that he, again like Whitgift, assumes that sinners often do repent, that goats turn into sheep (or rather turn out to have been sheep all along), so that any attempt to distinguish the elect from the reprobate based on visible godliness would result in ‘God’s vessels of honor from all eternity, not as yet appearing, but wallowing in sin . . . [being] made castaways.’ And most Christians spend a good bit of time wallowing, since the Church in this world ‘consisteth of sinners.’73 The Duke’s conviction that not only more or less penitent fornicators but even a hardened felon might be ‘God’s vessels of honor from all eternity,’ despite the latter’s distinctly goatish mien, implicitly repudiates the Puritan disciplinary agenda and vision of a purified Christian community on which it rests. The Barnadine subplot throws into high relief the issues of penitential justice and the ungodly that

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are braided into the fabric of the play throughout, and which also lie at the heart of Anglican–Puritan tensions. These tensions are deeply relevant to the play. Yet, as a way to get at the cultural meaning of penitential justice circa 1600 – as a way, that is, to understand the Duke’s pardon of Barnadine – they can also be misleading. What, for example, is one to make of the fact that Fuller’s chapter on William Perkins, the leading Puritan theologian of Shakespeare’s day, focuses on his early ministry as an unpaid chaplain to the prisoners in the Cambridge jails, living in England out of Christendom, wanting the means of their salvation, bound in their bodies but too loose in their lives; yea often branded in their flesh and seared in their consciences. Perkins prevailed so far with their jailor, that the prisoners were brought (fetter’d) to the shire-house hard by, where he preached unto them every Lord’s day. . . . Many an Onesimus here he begat, and as the instrument freed the prisoners from the captivity of sin.74 Puritan controversial writings would not incline one to expect pastoral concern for the salvation of hardened and notorious sinners. It may be that Fuller, a Caroline royalist, is being obliquely polemical here: honoring Perkins for what would have been instantly recognized as un-Puritan behavior. But even if that is why Fuller tells the story, it does not explain what Perkins was doing in the Cambridge jails. One would nowadays be very surprised to find that a conservative Republican had once been a grassroots activist in the War on Poverty. It would not be at all surprising, however, if the same person had at some point in his or her youth doled out government-surplus cheese sandwiches to the homeless in a church basement soup kitchen. As political issues, hunger, poverty, and homelessness belong to the liberal agenda. As charitable practice, such concerns are far more diffusely embedded in American culture. As Perkins’s prison ministry suggests, a commitment to penitential justice and fitting the likes of Barnadine for heaven, for all its ideological specificity, crosses Tudor–Stuart party lines, leaving its mark, as I will try to show in what follows, throughout the justice system, including the common law courts. The Duke’s actions, which disclose the same commitment, are shaped by a vision of Christian community that informs, in one way or another, both Anglican polemic and traditional cultural practice.

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The soul of the condemned Puritan authors regularly complained that, although England had strict enough laws, they were not strictly enforced. This seems to have been the case. Even though, in principle, common law judges and juries lacked discretionary authority, the actual pattern of sentencing in capital felony cases reveals a general tendency not to impose the legally mandated death penalty, so that – at least with respect to crimes against property – ‘less than half of those liable for execution were ever ordered to the gallows.’75 According to Cynthia Herrup, whose groundbreaking work I am summarizing here, decisions about when to mitigate and when to enforce the legal penalty embodied broadly based ‘social ideals of justice’ grounded in what Herrup refers to as the laws’ ‘religious subtext’: namely, a belief that ‘crimes were sins, yet sinning was universal.’ The common sinfulness of fallen humanity meant that lawbreakers did not belong to a separate criminal class – could not be defined as ‘alien and other’ – but ‘were simply errant brethren.’76 This religious subtext can be movingly explicit; a 1577 pamphlet recounting the detection and execution of a woman who conspired with her lover to murder her husband concludes with this moralitas: Behold, we be all made of the same mould, printed with the same stamp, & indued with the same nature that the offenders are. . . That they are fallen, it was of frailty, wherefrom we be no more privileged than they. . . . Their faults came into the open Theater, and therefore seemed the greater to our eyes, & surely they were great indeed; neither are ours the less, because they lie hidden in the covert of our heart. God the searcher of all secrets seeth them, and if he list he can also discover them. . . . I say not this as a cloaker of offenses. . . . but to repress our hasty judgments and uncharitable speeches, that we might both detest wickedness with perfect hatred and rue the persons with Christian modesty, knowing that with what measure we mete unto others, with the same shall it be moten to us again.77 The concluding scriptural tag returns us to Shakespeare’s play, where this awareness of a common sinfulness finds expression at several points. Escalus’s prayer asking heaven to forgive not only Claudio but ‘us all’ (II.i.37), uttered in response to Angelo’s order that the prisoner be executed the next day, voices the ‘religious subtext’ of his discom-

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fort with Angelo’s attempt to draw a hard-and-fast line – the line separating life from death – between the virtuous and the lawbreakers. So too, at the end, Mariana pleads with the Duke to spare Angelo on the ground that ‘best men are moulded out of faults’ (V.i.432). The universal liability to faultiness, from which not even ‘best men’ are immune, justifies her plea that Angelo’s sentence be mitigated, as it also justified ‘the extensive use of discretion in legal practice.’78 As Herrup’s ‘discretion’ implies, the justice administered by the common law courts betrays a marked, and unexpected, equity component. Judges and juries seem consistently to have taken into account the motives and moral character of the accused, as well as any other relevant mitigating circumstances – which is simply to say that they judged according to equity rather than ‘criteria established by common law.’79 Moreover, their use of discretion was shaped by religious considerations that tended to edge the penal justice of common law towards the penitential. The fact that defendants who confessed to capital felonies before their trial almost never went to the gallows, Herrup points out, suggests that the structure of religious confession had inflected common law process: as ‘God forgave those who were contrite . . . [so] in most cases the law would not demand a life from those who had asked their peers to forgive them.’ In cases that did go to trial, furthermore, the specific verdicts handed down reflect a ‘“carrot and stick” philosophy of punishment that not only expressed varying degrees of communal outrage, but also offered the miscreant an opportunity for repentance.’ Only in dealing with hardened criminals did the courts seem willing to impose penalties that ‘protected the community but ignored the convict’s soul.’80 The work of Peter Lake and J.A. Sharpe on the late sixteenth- and seventeenth-century murder pamphlet likewise suggests that it mattered a good deal, both to the authorities and to the culture at large, that criminals get a chance at heaven. In these cheap, popular pamphlets, which recounted the public executions of those convicted of killing another human being, the prisoner’s repentance typically forms the climactic scene. Hence, Sharpe notes, ‘the most consistently reported aspect’ of these executions, and the one apparently felt to be of central importance, was the condemned’s ‘last dying speech,’ or what contemporaries referred to as his ‘confession’; these speeches seem, in fact, very close to sacramental confession, involving ‘not merely an admission of guilt for the specific offense which led to execution, but rather a more general account of past sinfulness.’81

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According to the pamphlets, both judges and clergy made serious efforts to bring even quite lowly criminals to repent. The Dean of St Paul’s makes repeated pastoral visits to Mistress Sanders after her conviction for murdering her husband, whom the pamphlet’s titlepage describes as ‘a worshipful citizen of London’; Doctor Fletcher, the Bishop of Bristol and Queen’s Almoner, is present at the gallows to offer spiritual comfort ‘against the fear of death’ to an Irishman who had challenged another man to a duel and then, as the latter knelt to unbuckle his spurs before the fight, stabbed him through the heart.82 A 1618 murder pamphlet recounts the Lord Chief Justice, Sir Henry Montague’s, ‘great mercy to distressed souls, desiring to comfort them, & by all means possible to save them,’ whereby, having sentenced Francis Robinson to death for counterfeiting the Great Seal, ‘yet such was his honorable care towards him . . . [that] what lay in his power he did to comfort him,’ striving ‘to work that good work in him of repentance, contrition, and assurance of his salvation.’83 Sometimes the judges would intervene to stay, or even stop, the execution so that a hardened criminal might have sufficient opportunity to prepare for death.84 Mistress Sanders, being ‘utterly unprovided to die at that time,’ thus, ‘in respect of mercy,’ has her sentence delayed; according to a 1607 murder pamphlet, the two perpetrators in this case had formerly received an even greater ‘undeserved mercy,’ both having previously been indicted for robbery, on which occasion, ‘out of some conceived hope of future amendment, their life was given them.’85 The murder pamphlets are, of course, describing public executions mandated by the punitive ‘death for death’ justice of the common law. Yet most of the writers – and, apparently, most of the participants – understood this ‘spectacle of the scaffold’ as a penitential ritual, and hence as demonstrating not only the state’s power over bodies but also its pastoral cure of souls.86 Furthermore, by depicting these public executions as penitential ritual the murder pamphlets imply that common law, like equity, was (or, at least, could be perceived as) a Christian justice system. They imply, to put it another way, that justice becomes Christian in virtue of its penitential character: because its aim is not to purify the flock by ridding it of goats but rather to transform lost sheep into lambs of God. These pamphlets believe in punishing crime, but also in ‘the ultimate salvation of hardened sinners and murderers.’87 One thus records how the condemned man went to his death ‘like a lamb going to the slaughter . . . prepared to suffer the same willingly, patiently, and joyfully: and our confidence is such of him, that he is received into the fold of that most blessed

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heavenly flock.’88 While only a few murderers ended up types of Christ, most of those whose deaths were recorded did repent, and all the evidence we have indicates that they did so freely and sincerely.89 It is easy to miss the strangeness of all this, as I think both Sharpe and Lake do, who demystify the authorities’ efforts to have criminals repent on the rather predictable ground that their confessions reinforced the ideological legitimacy of the state and thus encouraged conformity and obedience.90 Yet why would the state want to risk the appearance of hanging men who had ‘become much more the better / For being a little bad’ (V.i.433), especially since the opposite strategy could have worked just as well and would certainly have been less labor-intensive; that is, if criminals regularly died swaggering, cursing, and defiant, the self-evident justice of their hanging and the equally evident likelihood of their damnation might also have encouraged conformity and obedience.91 I suppose that for the Tudor–Stuart governing class conformity and obedience were always desiderata in some overarching sense, but precisely because high-order generalizations can account for opposite courses of action, they do not explain why this was done rather than that. While it seems implausible that the authorities wanted criminals to repent in order to reinforce the state’s ideological legitimacy – that this was a deliberate political strategm – yet if the authorities’ efforts had something to do with such legitimation, it was because their pastoral solicitude ratified the state’s claim to be concerned for men’s eternal welfare, its claim to administer penitential justice. ‘Legitimation’ may, however, be putting too polemical a gloss on it. One of the murder pamphlets describes how in London ‘convicted felons being drawn on a cart towards execution were always “stayed before St Sepulchres church . . . to move prayer and compassion in men’s hearts.”’ One could, perhaps, view this as legitimation: Lake certainly uses this passage to show that the authorities ‘stagemanaged’ executions ‘in order to bolster the cause of order and obedience.’ Yet, as before, this seems a peculiar line of reasoning, since, on the face of it, the cause of order and obedience is not necessarily well-served by arousing compassion for lawbreakers.92 What this passage seems rather to suggest is that the aim of these public executions was to affirm the Christian character of English justice by making visible, both as ritual and text, its work of reconciling sinners, saving souls, offering mercy to even the most ungodly. The notion of ‘Christian’ implicit here has a distinctly Anglican cast, yet one hesitates to locate either the ritual or the pamphlets in the

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context of Anglican–Puritan debates. The fact that, as a rule, all the participants in the execution rituals – ministers, prisoners, judges, pamphlet writers – seem to think it both possible and desirable that a murderer could flit from Tyburn straight into Christ’s ‘heavenly flock’ and, furthermore, that the authorities responsible for his death would also desire his salvation suggests the murder pamphlets register widely shared cultural attitudes. In these works, the commitment to penitential justice and, with it, the refusal to treat the ungodly as reprobate, which implied a specific ‘positionality’ in debates concerning the church, seems largely unpolemical and unthreatened. Yet the fact that the murder pamphlets uphold the same values that define Anglican ecclesiology suggests that the former, like the latter, set forth an ideal of Christian community. In Tudor–Stuart England, this is what the discourses of penitential justice and the ungodly are about. It is also what Measure for Measure is about. I have been arguing against reading the murder pamphlets as Anglican documents in part because of a not altogether defensible resistance to labelling the play Anglican, my concern being that such labels tend to make whatever they designate sound like factional plumping. The label is also problematic for the obvious reason that Anglican–Puritan debates concerned the Chrisian community that is the church. Measure for Measure concerns the Christian community that is the state. It directs our attention to those Tudor–Stuart sites where, in one way or another, temporal power – and, in particular, the temporal justice system – gets invested with a penitential character: James’s claim to have jurisdiction over souls, and thus to be responsible for their salvation; the association of the equity courts with medicinal correction pro salutate animae, with sacramental confession, and with rectifying corrupt consciences to the end that malfactors might escape damnation; the ways in which common law procedures were bent, mitigated, and supplemented to accommodate penitential aims within what was, in theory, an overwhelmingly penal system. The Anglican–Puritan controversies shed a three-fold light on these civil appropriations of penitential justice: they point to the specifically Christian nature of a justice that seeks the offender’s repentance (as opposed to compensation, punishment, or deterrence). They also explain the link between penance and Christian community: namely, if and only if goats may one day prove sheepish, are they part of the flock and dear to its shepherds no less than the rest of God’s lambs. And finally they make clear the fundamental opposition between the

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penitential model and the Puritan disciplinary one – the opposition between the Duke and his Deputy.

The politics of mercy The Duke’s exercise of penitential justice, his deep concern for the salvation of his subjects, and his refusal to purify his flock not only of the goatish Barnadine but of skunks like Angelo and Lucio identifies him with the ideal of Christian community (or, better, of Christian polity) that, in Tudor–Stuart England, opposed and was opposed by Puritanism. In 1604 this ideal would surely have been associated with both Anglican orthodoxy and with James’s own high Christian royalism – especially given the new King’s stunning eleventh-hour pardon of Ralegh and the other conspirators in the Cobham Plot, as well as his command, given in town after town as he moved through his new kingdom en route from Scotland to London, that all prisoners, excepting only murderers and Jesuits, be set free.93 Yet, since one of James’s more memorable acts during that same progress was to order the summary execution of a thief sans auter proces, the parallels between King and Duke extend only so far. Nor, to restate the obvious, does the play mirror the actual workings of Tudor–Stuart justice, where concern for the salvation of the condemned did not mean releasing felons on the ground that they were not yet prepared to die. In postReformation England, as the foregoing has tried to show, the state and the temporal courts incorporate penitential elements, but this was ‘a movement . . . whose threads are tangled and at times knotted with many another skein of history.’94 In Measure for Measure, by contrast – in the pardon of Barnadine, to say nothing of Angelo and Lucio – the soteriological and pastoral aims of Christian justice simply replace the penal sentences of the law. Measure for Measure, that is, reflects on the post-Reformation crossover of the sacred from ecclesial to temporal polity, but it is not a history play. Rather, like the Puritan holy commonwealths of Bucer and Baxter, the Friar-Duke’s Vienna is an attempt to imagine what Christianity might look like as a political praxis. These are visionary theocracies, premised on a radical denial of secular order; both the Puritan and ducal regimes thus face in the opposite direction from the liberalism, already discernible in Aquinas, that viewed the state as an autonomous sphere with its own finite ends, and therefore as essentially distinct from ‘the spiritual,’ which now no longer embraced the whole of human life under grace but confined its territory to the

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goings-on inside men’s souls.95 This is the liberalism of Whetstone’s Promos, which restricts spiritual jurisdiction – symbolized, as in Measure, by concern for the salvation of criminals – to the church: hence the sharp contrast in the prisoners’ scene between the civil magistrates’ agenda and the chaplain’s. Yet, as we have had occasion to mention more than once, the Duke’s version of Christian governance could hardly be more different from Bucer’s – or from Angelo’s. The sentences pronounced at the trial scene’s conclusion require the men to care for the women they have wronged and the children they have fathered, but all else is forgiven: Lucio’s perjury and seditious libel; Angelo’s judicial misconduct, abuse of power, promise-breaking, and attempted murder. Claudio is ordered to marry his beloved, which is not exactly punishment; Barnadine goes home to (one hopes) ‘provide / For better times to come’ (V.i.477–8). These sentences do not, of course, guarantee that the resulting marriages will be happy or that those pardoned will repent; Lucio and Barnadine may very well be going down a one-way goat path. The Puritans quoted earlier in this chapter would have had no trouble discerning in them clear signs of damnation. Yet to view the dubious outcome of these pairings and pardons as evidence of the Duke’s failure, as much recent criticism has done, is to miss the point. The issue dividing Anglicans from Puritans concerned the ungodly, men like Lucio and Barnadine: whether one should assume that they might someday repent; whether one should base one’s actions on that assumption; or whether, there being in fact a great difference between sinners, one should not pretend that a rotten apple is merely unripe. It is crucial that the Duke extends his mercy to those whom common sense (to say nothing of Puritanism) would label castaways. Claudio’s reprieve does not offend common sense because he probably did not do anything wrong, and even if he did, he is sorry, and he is unquestionably a nice guy. His pardon fulfills the interlaced norms of poetic justice and romantic comedy. It seems natural to put a difference between this and forgiving scoundrels like Angelo, Lucio, and Barnadine. As a judicial guideline, the Duke’s clemency towards these three is not less extreme than Angelo’s decision to follow the strict rule of law in Claudio’s case. His extravagant abjuration of the penal – particularly with respect to Barnadine and Lucio, whose crimes do not have the excuse of eros – conforms neither to literary conventions nor to those of fair play;96 rather, it enacts, in an uncomfortably literal fashion, the ideal of Christian justice that has been on the table since Isabella’s first meeting with Angelo, where she argues

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that the Deputy should pattern his exercise of judicial authority on the Crucifixion: Why all the souls that were, were forfeit once, And he that might the vantage best have took Found out the remedy. (II.ii.75–7) The play does what Milbank describes as the task of Christian theology: to confront Hegel’s question of ‘how has Christianity affected human reason and human practice,’ by articulating ‘Christian difference in such a fashion as to make it strange.’97 The Duke’s justice is strange – stranger than Angelo’s. The Puritan commitment to the rule of law and to punishing sexual infractions remains familiar enough. But for us the alternative is Millean secular liberalism. The contrast between penal and penitential ideals structuring Measure for Measure points to the existence of a second version of political theology, another way of imagining the regnum Christi besides the Platonic–Puritan system of compulsory virtue and condign punishment. This seems important, given that the Platonic–Puritan model remains the ideological substrate for the modern Puritanisms of the religious Right, with the result that Christian politics is now generally understood to mean legislating morality, especially sexual morality, and a punitive approach to sin. But is there any such second version of political theology? I have tried to show that the crossover of penitential ideals into the aims and operations of the state that characterizes the Duke’s strange justice is not mere fairy-tale but leaves its imprint on various cultural sites. Certain execution rituals, a few passages in the equity treatises, a late fifteenth-century exchange between the Lord Chancellor and Chief Justice, the anomolous sentencing in common law felony trials, taken together, point to an underlying identification of Christian polity with penitential justice. Yet the evidence is fragmentary, and the attempt to reassemble cultural fragments always runs the risk of imposing rather than discovering significant form, of piecing together unrelated bits into a design of one’s own.98 So, at the end of a long chapter, the question still remains as to whether its pieces do in fact come from the same puzzle. To appeal to the Duke’s actions might not be viciously circular, since the play’s political figurations have been a good guide thus far, but if there is a second version of political theology, one modelled on penance rather than law-enforcement,

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one would expect to find it explicitly articulated, and late sixteenthcentury materials provide no such articulation. Yet the same problem obtains for the Puritan vision of the state: to grasp its framework of premises and ideals one has to go behind the singularly untheorized texts of Elizabethan Puritanism to Bucer’s magisterial theocracy and thence back to Plato’s Laws. This book thus began with intellectual history and this also appears to be how it will end, since it is not in England but in Augustine, the first of the Latin Fathers for whom Christianity was the official state-religion, that one finds an extended reflection on penitential justice as the basis of Christian polity. The penitential model, it thus turns out, emerges at the origins of Christian political thought in the West.

Christ’s other kingdom: political theology in Africa Augustine’s work on Christian rule is perhaps the least-known aspect of his political thought, scholarship having focused on his account of the civitas hominum and on his ultimately catastrophic decision to allow using the coercive powers of the state to repress heresy. Augustine, I should make clear at the outset, never offers a detailed blueprint for constructing a temporal order in accordance with the Gospels; his civitas Dei, unlike Bucer’s regnum Christi, is not a political community but a corpus mysticum. But in the City of God and, at greater length, in his correspondence with the Roman officials governing Africa, Augustine addresses the intertwined issues of Christian community and Christian justice – the same issues informing the Tudor–Stuart materials that this chapter has been considering throughout. Scattered passages in the City of God give the fundamental premises and convictions informing Augustine’s more specific discussions of Christian polity. Book V thus invokes Livy’s remarkable account of how Romulus, by offering ‘impunity for crimes of every kind[,] collected a multitude which was to result in the foundation of the city of Rome’ to draw a still more remarkable comparison between Romulus’s offer and ‘the remission of sins, the promise which recruits the citizens for the Eternal Country.’99 At the origin and heart of both Roman and Christian community is this blanket pardon and forgiveness of sins. The Roman offer of impunity was, of course, quickly withdrawn, but, as Augustine goes on to argue in Book XIX, ‘our righteousness’ – both individually and collectively – is in this world always ‘such as to consist in the forgiveness of sins rather than in the perfection of virtues,’ for who ‘can presume that his life is of such a kind that

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he has no need to say to God “Forgive us our debts.”’100 With this, Augustine turns his back on the whole Platonic–Puritan tradition. The reality that all are sinners and in need of pardon, which grounds God’s dealings with humankind, is likewise the basis of Christian community. In this life, people – again both individually and collectively – imitate divine goodness not by fulfilling the law but, in Milbank’s words, ‘by offering reconciliation,’ ‘by not taking offence, assuming the guilt of others, doing what they should have done, beyond the bounds of any given “responsibility,”’ ‘[by] the offering of mutual forgiveness.’101 Augustine’s letters spell out the political import of these convictions. Since, like most Tudor–Stuart writers, Augustine views the state as a juridic order, for him political questions – questions about the exercise of its coercive authority – tend to be formulated as questions about its administration of justice. His letters on Christian polity thus focus on how the state should deal with the wicked, the ungodly, the criminal. Responding to Marcellinus, the Imperial commissioner in Carthage, who had expressed concern over whether Christian teaching on forgiveness might not be political nonsense (‘reipublicae moribus nulla ex parte conveniat’),102 Augustine argues that concord, which alone binds men into community, depends on ‘choosing, when one has suffered wrong, to pardon rather than to punish the offender’; one forgives so that the ‘wicked man may be overcome by kindness, or rather that the evil which is in the wicked man may be overcome by good, and that the man may be . . . won back with sorrow for his sin to that concord, than which nothing is more valuable to the state.’103 Significantly, ‘sorrow for his sin’ translates ‘poenitens’; one pardons an offender so that, overcome by good, he will repent. Virtually all Augustine’s writings on Christian polity center on penitential justice. While Augustine never denies the state’s right and duty to punish offenses, he insists again and again that, for Christians, true justice seeks, above all, the good of the offender; both in punishing and pardoning, it endeavors to heal the wrongdoer, to lead him to repentance and so to salvation.104 While some criminals must be locked up to protect the community, there is, Augustine maintains, no such thing as penal justice; retribution – punishment intended to make the offender suffer for what he has done – is always illegitimate. He thus writes to Donatus, the proconsul of Africa, of his fear that ‘in your administration of justice . . . you think that punishments should be imposed according to the gravity of the crimes and not rather according to the rule of Christian forbearance. I beg you, in the name

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of Jesus Christ, not to do this . . . but thus curb their sins that they may repent having sinned.’105 Similarly, having heard that some Donatist prisoners had admitted torturing two Catholic presbyters and killing a third, Augustine confesses to Marcellinus that this news has plunged me into the deepest anxiety, lest perchance your Excellency should judge them worthy, according to the laws, of punishment not less severe than suffering in their own persons the same injuries as they had inflicted on others. Wherefore I write this letter to implore you by your faith in Christ, and by the mercy of Christ the Lord Himself, by no means to do this or permit it to be done. . . Fulfill, Christian judge, the duty of an affectionate father . . . be moved by the wounds which these sins have inflicted on their souls to exercise a desire to heal them.106 While healing certainly includes moral reform, Augustine’s categories are soteriological rather than disciplinary. What matters is saving souls, not normalizing behavior. For him, as for Lord Chancellor Morton, in a Christian state the aim of temporal justice is to keep sinners from going to hell. Augustine thus repudiates the death penalty because it cuts off the possibility of repentance, explaining to Macedonius, another Imperial official, that ‘the more we detest the evil, the less we want the unrepentant evildoer to die. . . We are compelled by humanity and holy love to intercede for the guilty lest they end this life through punishment only so that, their life having ended, their punishment be never-ending.’107 The argument assumes that the state, insofar as it is Christian, does and should care about how its subjects spend eternity; which is to say, it entrusts the state with cure of souls. For Augustine, as for Tudor–Stuart writers, the state exercises this spiritual jurisdiction by administering penitential justice; this is where Christian difference marks temporal power. Sometimes, Augustine remarks, ‘it seems necessary to heal by pain,’ as a loving father will, on occasion, correct his son ‘even with some sternness.’108 Yet mostly he urges forgiveness, pointing out to Macedonius that Christians, whose sins God has remitted, ought therefore to spare the guilty. By pardoning others’ misdeeds, the magistrates obtain forgiveness for their own trespasses, and their kindness may win the errant back to the paths of truth and righteousness. Forgiveness does not, of course, always work. As Augustine himself acknowledges, in any given case those pardoned might not repent, or might, once reprieved, go on to commit further crimes, or their

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reprieve might embolden others to indulge their own criminal tendencies. Yet he goes on to insist that, while these are real possibilities, such kindness is never wrong if done out of a desire to save and heal, since the intent, not the result, determines the quality of mercy. The clergy who intercede with the magistrates on behalf of the condemned, and (presumably) the magistrates who accede to their prayers, will not be held accountable for such unintended ‘evil consequences.’109 This last point returns us to Barnadine and the Duke’s strange justice. The play gets it right. The crossover of penitential modes into temporal governance that the Duke makes happen defines a model of Christian polity going back to the patristic era. Augustine’s letters spell out the political claims at which the Duke’s conduct hints: that the state and its rulers have a responsibility for the eternal welfare of their subjects; that they are to seek the salus animae as well as, and sometimes at the expense of, the bonum commune; that the specifically Christian character of the state manifests itself, above all, in its administration of justice: in pardoning, reconciling, and redeeming transgressors rather than punishing them. This is, of course, a deeply un-Puritan vision of godly rule.110 There are thus two main strands of Christian political thought – one based on penance, the other on law. The play gets it right. They are both, one should add, radical strands. Tudor–Stuart practice generally conformed to the Thomist model, with its partial separation of church from state and legitimation of a somewhat secular sphere – the configuration one finds in Promos. The radicalism of the Puritan regnum Christi is pretty obvious, but, as we have seen, penitential justice also leads in strange directions. One suspects that the Imperial officials to whom Augustine wrote, devout Christians though most of them were, found his advice troubling. In fact, several letters respond to worries voiced by one or another of these officials that Augustine’s proposals were, as regards running the Roman Empire, sentimental nonsense: they condoned lawbreaking; they disregarded public safety; they allowed wickedness to escape due punishment.111 These are objections not easily dispelled, and ones that pertain as much to Measure for Measure (that is, to my reading of it) as to Augustine. Might penitential justice work? Not that those forgiven would always repent; neither Augustine or the Friar-Duke expects that; but might it work as an imperfect, risky, problematic system of temporal justice: as an alternative to the penal system, as a method a state could conceivably adopt to deal with real criminals? What would Christianity look like as a political praxis?112

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* Winnie Madikizela-Mandela’s hearing before South Africa’s Truth and Reconciliation Commission (TRC) takes place in Johannesburg during the late fall of 1997. Convicted of kidnapping fourteen-year-old Stompie Seipei in 1989, she now stood accused of eight other murders, including the assassination of her friend and personal physician, Dr Abu Baker Asvat. One of her drivers tells ‘how the members of the former United Mandela Football Club repeatedly threw Stompie up into the air and let him drop to the ground, head first.’ The club’s coach takes the stand. ‘“We slaughtered him like a goat,” he kept saying. . . Sobs arose from Mrs. Seipei, who had to leave the room.’ Then Cyril Mbatha, the murderer of Dr Asvat, speaks, describing the shooting, ‘allegedly on Mrs Mandela’s orders. Mbatha broke down and wept, begging forgiveness from the Asvat family.’ . . . ‘The storytellers do not sanitize the events, nor are they permitted euphemisms to cover the horrors.’ ‘The torturers, including high-ranking state officials,’ speak, ‘confessing their crimes. . . [yet] these stories are not being told in the context of a confessional, [but] on the national stage . . . as South Africa struggles to come to terms with the burdens of its past.’ It is a ‘public, communal act of confession.’ One of the generals snaps that he will ‘confess to God, not to Tutu’ – ‘Tutu,’ of course, being Desmond Tutu, the Anglican Archbishop of Cape Town and presiding commissioner of the TRC. The Archbishop, whom an observer at the hearings described as simultaneously playing ‘healer, confessor, comedian, politician,’ answers the general, ‘Jong, if you’ve had a fight with your wife, it is no use if you only ask forgiveness of God. You will have to say to your wife you are sorry.’ The TRC, established by the South African Parliament in October, 1994, operates under a mandate to link ‘together amnesty, truth telling, and a goal of reconciliation.’ ‘Perhaps most significant in the work of the commission has been the insistence that the entire truth must be told,’ for if truth telling is to lead to amnesty and reconciliation, ‘then the whole truth must be confessed.’ The first hearings begin in 1996 in East London. ‘Commissioner Bongani Finca starts with the well-known Xhosa hymn: “Lizalise idinga lakho.”. . . Archbishop Tutu prays. . . Everyone stands with heads bowed while the names of the deceased and disappeared who will come under the spotlight today are read out. A big white candle emblazoned with a red cross is lit.’

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Lizalise idinga lakho means ‘the forgiveness of sins makes a person whole.’ Critics object that forgiveness is not justice, that men are ‘getting away with murder – literally.’ Tutu replies by drawing a distinction ‘between retributive and restorative justice.’ While the commission seeks reconciliation, not retribution, ‘it does so in the interest of restorative justice.’ The TRC, writes the South African theologian, John De Gruchy, endeavors to make real a ‘Christian understanding of repentance, forgiveness, and reparation’ and by so doing ‘to heal the land.’ TUTU: I am not a politician. RESPONSE: Yes, you are. TUTU: No, I am a pastor, I am a pastor. QUESTION: But you are also a politician? TUTU: Uh-uh, no I am not. I am a church person who believes that religion does not just deal with a certain compartment of life. Religion has a relevance for the whole of life and we have to say whether a particular policy is consistent with the policy of Jesus Christ or not, and if you mean to say that is political, then I am a politician in those terms. Over and over during the course of the hearings, the victims and their families reach out in forgiveness to those on the stand confessing their crimes. A former Ciskei Defence Force officer confesses his part in the 1992 Bisho massacre, which left 29 dead and 200 wounded. In the courtroom, the Archbishop tells the South African Press Club, ‘were people who had been wounded in that incident, people who had lost loved ones, but when that white army officer asked for forgiveness they did not rush to strangle or assault him. Unbelievably, they applauded. . . I said at that point, let us keep silent, because we were in the presence of something special, of something holy. Many times I have felt we should take our shoes off because we were standing on holy ground.’ At the end of the hearings into Stompie Seipei’s death, the Archbishop, weeping, urged Mrs Seipei and Madikizela-Mandela to come forward and embrace, which they did. A journalist asks whether he thought the latter actually deserved that embrace from Mrs Seipei. Tutu answers, ‘You know, people sometimes are wonderful. You don’t deserve grace.’ From the beginning to the end of her long testimony, however, Winnie Mandela refuses to apologize, instead denying every allegation of human rights abuses. Then, speaking from the commissioners’ table at the far end of the packed courtroom, Tutu addresses her, ‘“There are

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people out there who want to embrace you. I still embrace you” – and Tutu folds his arms in front of him as if embracing her – “because I love you. I love you very deeply. There are many out there who would have wanted to do so. If you were able to bring yourself to be able to say: ‘Something went wrong . . .’ and say, ‘I’m sorry, I’m sorry for my part in what went wrong . . . ’ I beg you, I beg you . . . I beg you, please. . .” His voice has fallen to a whisper. “I beg you.” . . . From far away I hear Winnie Mandela: “I am saying it is true: things went horribly wrong and we were aware that there were factors that led to that. For that I am deeply sorry.”’ The TRC discloses ‘the power, and perhaps the limits, of the Christian vision of reconciliation’ – the limits because it might not work, but also because it might, for one could protest that ‘reconciliation is too high a price for political culture, and we ought not permit . . . the imposition of a Christian morality of forgiveness into a political process.’ * I do not know whether we should permit it. My point is simply that Measure for Measure’s version of Christian morality has in fact been imposed on a political process – that it could work.

Notes Introduction 1 2. 3. 4.

5.

6.

7.

8.

9.

Josephine Waters Bennett, Measure for Measure as Royal Entertainment (New York: Columbia University Press, 1966), pp. 7–8. Brian Gibbons, ‘Introduction,’ Measure for Measure, ed. Brian Gibbons (Cambridge: Cambridge University Press, 1991), p. 22. Bennett, Royal Entertainment, pp. 8–11. Gibbons, ed., Measure for Measure, I.i.3 I cite this edition throughout. Further references will be given parenthetically in the text. Note that here and in what follows I am using ‘political’ in the sense of ‘government’ or ‘governance‘: that is, whatever pertains to the ordering and rule of a polity. This is a standard early modern sense; see, for example, Melanchthon’s definition of ‘politics’ in the opening of his Commentarii in aliquot politicos libros Aristotelis (1530): ‘politics is the art containing general precepts about the ordering of a polity. As architecture is the art that describes the structure of buildings, so politics describes the structure of a polity: it thus deals with issues of property, marriage, governance, laws, civic duties, contracts, penal sanctions’ (politica ars est continens generalia quaedam praecepta de ordinatione civitatis. Sicut architectonica ars est qua formae aedificiorum describuntur. Ita politica certam formam civitatis describit, disputat de rerum divisione, de connubiis, de magistratibus, de legibus, de populi officiis, de contractibus, de poenis) (Philippi Melanchthonis opera quae supersunt omnia, 28 vols., ed. Carolus Gottlieb Bretschneider [Brunswick and Halle, 1834–60], 16:416; my translation). Louis Martz, ‘“Of Government”: Theme and Action in Measure for Measure,’ Classical, Renaissance and Postmodernist Acts of the Imagination: Essays Commemorating O. B. Hardison, Jr., ed. Arthur Kinney (Newark: University of Delaware Press, 1996), p. 212. Quoted from Bracton in Ferdinando Pulton’s magisterial 1609 treatise on English criminal law, De pace regis et regni, Classical English Law Texts (London: Professional Books, 1973), 219v. The passage comes from the Anglo-Saxon Egbertine Order, the earliest English account of a coronation ritual, in use up to 1307; thereafter, and through the seventeenth century, the wording is slightly different, the monarch promising ‘to cause law and justice in mercy to be executed in all his judgments.’ A point elegantly argued by Elizabeth Pope, who sees the play as part of the ‘outburst of concern with the theory of government [that] seems to have been inspired primarily by the accession of James’ (‘The Renaissance Background of Measure for Measure,’ Shakespeare Survey 2 [1949]:70). On the ruler as the figure or personification of the state, see Nigel Smith, Literature and Revolution in England, 1640–1660 (New Haven: Yale University Press, 1994), p. 158. Literary scholars, particularly literary scholars trespassing on others’ 141

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11. 12. 13.

14. 15.

Notes disciplinary turf, tend to make exaggerated claims for their own discoveries, a little learning being now as then a dangerous thing. Video meliora, deteriora sequor. In what follows, I have not abjured sweeping statements, in part because too may qualifiers spoil the prose. Generalizations about diverse and complex cultures like those of early modern Europe can rarely be more than partial truths: London is different from Cornwall, William Perkins from Richard Sibbes, so that claims about ‘England’ or ‘Puritans’ only hold à-peu-près. Readers mostly grasp this and do not ask blanket statements to cover everything. But since I am presenting an account of Tudor–Stuart polity that diverges radically from both the standard and revised standard (that is, revisionist) versions, it seems important to make clear that this account does not try to tell the whole story but just the part (I think an important part) usually left out. I will return to this topic again in Chapters 1 and 2. On the standard and revisionist versions of early modern English history, see John Morrill, Revolt in the Provinces: The People of England and the Tragedies of War, 1630–1648, 2nd edition (London: Longman, 1999), pp. 1–21; Glen Burgess, ‘On Revisionism: An Analysis of Early Stuart Revisionism in the 1970s and 1980s,’ Historical Journal 33 (1990):609–28. See the introduction to Book II of The Discourses in Niccolò Machiavelli, The Prince and the Discourses, ed. Max Lerner (New York: Modern Library, 1950), p. 273; Francis Bacon, The Advancement of Learning, in The Works of Francis Bacon, ed. James Spedding, et al., 14 vols. (London: Longmans, 1857–74), 3:430. Peter Lake, ‘Periodization, Politics, and “The Social,”’ Journal of British Studies 37 (1998): 290. William Chillingworth, The Religion of Protestants, a Safe Way to Salvation (Philadelphia: R. Davis, 1841), p. 35. The final moments of Measure of Measure are notoriously unscripted: Isabella does not respond to the Duke’s offer of his hand; Barnadine does not respond to his offer of mercy. The lovers Juliet and Claudio, newly reunited on stage, say nothing to each other, nor does Claudio speak to his sister. Angelo and Mariana are likewise mute. Perhaps they are overcome with wonder and gratitude, but perhaps not. For a particularly thoughtful discussion of the matter, see Philip McGuire, Speechless Dialect: Shakespeare’s Open Silences (Berkeley: University of California Press, 1985), pp. 63–96. Saint Augustine, Confessions, 2 vols., trans. William Watts (1631), Loeb Classical Library (Cambridge: Harvard University Press, 1988), 11.20. In one instance I did violate chronology – for the simple reason that Hudson’s Treatise on the Star Chamber, written sometime between 1610 and 1621, provides the earliest detailed account of this court. Using Hudson as evidence for the pre-1604 Star Chamber seems warranted, since, although the court’s role altered significantly under Charles, no similar break occurred at James’s accession.

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Chapter 1 1. Gibbons, Measure, p. 2. 2. The main biblical passages dealing with sexual regulation, most very brief, are: Adultery: Lev 18:20, 20:10; Ex 20:14; Num 5:12–31; Deut 5:18, 22:13–27; Prov 6:32; Mat 5:27–8, 19:9, 18; Luke 18:20; 1Cor 6:9; Heb 13:4. Fornication: Ex 23:165–17; Lev 19:19, 21:9; Deut 22:28–29; Acts 15:29; 1Cor 5:1, 9–11, 6:9, 165–18, 10:8; Eph 5:3–5; 1Thes 4:3. Bestiality: Ex 23:19; Lev 18:23, 20:15–16; Deut 27:21. Incest: Lev 18:65–18; 20:11–12, 14, 17–21; Deut 22:30, 27:20–3. Homosexuality/sodomy: Lev 18:22, 20:13; Deut 23:17; Rom 6:9. Prostitution: Lev 19:29; Deut 23:17; Prov 7:5–17 Marriage, intermarriage, concubinage, and divorce: Gen 1:24; Ex 21:7–11; Lev 21:7–8, 13–14; Num 36:2–13; Deut 7:3, 21:11–14, 24:1–4, 25:5–10; Ezra 9:12–10:44; Neh 13:23–7; Mat 5:31–2, 19:3–9; Mark 10:11–12; Luke 16:18; 1Cor 7:2–16, 25–40; Eph 5:28–33; Rom 7:2–3; 1Pet 3:1–7. 3. Peter Lake, ‘Puritan Identities,’ Journal of Ecclesiastical History 35 (1984):113–14; ‘Periodization,’ 282–3; Patrick Collinson, ‘Ecclesiastical Vitriol: Religious Satire in the 1590s and the Invention of Puritanism,’ The Reign of Elizabeth I: Court and Culture in the Last Decade, ed. John Guy (Cambridge: Cambridge University Press, 1995), p. 155; Marjorie Keniston McIntosh, Controlling Misbehaviour in England, 1370–1600, Cambridge Studies in Population, Economy and Society in Past Time 34 (Cambridge: Cambridge University Press, 1998), pp. 200–10. 4. The Admonition is reprinted in Puritan Manifestoes: A Study of the Origin of the Puritan Revolt, ed. W. H. Frere and C.E. Douglas (London: SPCK, 1954), pp. xi, 9, 17–18, 34. Collinson notes that in his 1593 anti-Puritan tracts, Richard Bancroft consistently refer to his opponents as ‘seekers of the pretended Discipline,’ ‘Disciplinarian men,’ and the like (‘Ecclesiastical Vitriol,’ p. 165). 5. Puritan Manifestoes, pp. 17, 34; Patrick Collinson, The Religion of Protestants: The Church in English Society 1559–1625 (Oxford: Clarendon, 1982), pp. 199–225; Arthur Dent, The Plain Man’s Pathway to Heaven (London, 1601), pp. 19, 49, 134–42, 160–1, 231–3; Lewis Bayly, Bishop of Bangor, The Practice of Piety (1612), 13th edition (London, 1621), pp. 200–3, 400–45. Puritan texts, it should be added, are often equally harsh on usury and popery. I have, however, run across no denunciations of sodomy, perhaps because I was not looking for them, perhaps because it already was a capital offense, perhaps because the whole subject was considered unmentionable. 6. Keith Thomas, ‘The Puritans and Adultery: The Act of 1650 Reconsidered,’ Puritans and Revolutionaries: Essays in Seventeenth-Century History Presented to Christopher Hill, ed. Donald Pennington and Keith Thomas (Oxford: Clarendon, 1978), p. 271. Yet it should be remembered that Pope Pius V (1566–72) also wished to impose the death penalty for adultery, although he was persuaded to drop the idea (Ludwig von Pastor, The History of the Popes, ed. and trans. F.I. Antrobus et al., 40 vols. [St. Louis, 1923–69], 17:93–4. I owe this reference to my colleague, Professor H.A. Kelley, who

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10. 11.

12.

Notes graciously let me see a copy of his paper ‘Policing Sex in the Middle Ages and Renaissance’). Thomas, ‘Puritans and Adultery,’ p. 266; M.M. Knappen, Tudor Puritanism: A Chapter in the History of Idealism (Chicago: University of Chicago Press, 1939), pp. 259–61. Since there is no way to rid ‘conformist’ of its modern perjorative connotations, I prefer the more neutral (and less anachronistic) ‘Anglican.’ While the English word dates from the 1640s, ‘anglicanus’ is the standard sixteenth-century Latin adjectival form of ‘the Church of England’ (see, for example, Thomas James’s dedication of his Ecloga Oxonio-Cantabrigiensis to the bishops of the ‘Ecclesiae Anglicanae’ [London, 1600]). The Roman Catholic polemicist, Thomas Harrab, comes within a letter of coining the English term in his 1616 Tessaradelphus: ‘I call the religion of England Anglianism, because it . . . hath no one especial author, but is set forth by the Prince and the Parliament. . . [and] composed of Catholic religion, of Lutheranism, and Calvinism’ (reprinted in vol. 172 of English Recusant Literature, 1558–1640 [Yorkshire: Scholar, 1973], Aiir, Eivr). Lake ‘Puritan Identities,’ p. 116; McIntosh, Controlling Misbehavior, pp. 204, 210. That upon close inspection Puritanism proves a more fluid and complex category than one might wish should surprise no one. All historical categories (political, religious, sociological, zeitgeistlich), like a picture viewed through a magnifying glass, can be made to dissolve into individual pixles. Yet the categories remain valid. There really are Democrats and a Democratic Party, although historians 300 years hence may raise legitimate doubts upon noting that, in just the half-century after 1950, some Democrats seem to be segregationists, some civil rights leaders, some hawks, some doves, some pro-union, some pro-NAFTA, etc. One wonders what they will do with the fact that four of the five Democratic presidents were evangelical Protestants (Truman, Johnson, Carter, Clinton). The work itself, which was published in Basle in 1557, had little direct influence on Puritanism; Bucer’s social vision enters England indirectly via Calvin, whose own thought ‘was profoundly shaped by what he learned and took over from Bucer, particularly during the years (1538–41) when they were associated in common work in Strassburg’ (Wilhelm Pauck, ‘Editor’s Introduction’ to De regno Christi, in Melanchthon and Bucer, The Library of Christian Classics 19 (London: SCM Press, 1969), pp. 157, 170–2. See also Patrick Collinson, ‘The Reformer and the Archbishop: Martin Bucer and an English Bucerian,’ pp. 19–44 in Godly People: Essays on English Protestantism and Puritanism (London: The Hambledon Press, 1983); John Dykstra Eusden, Puritans, Lawyers, and Politics in Early Seventeenth-Century England (New Haven: Yale University Press, 1958), p. 27; David Little, Religion, Order, and Law: A Study in Pre-Revolutionary England (New York: Harper and Row, 1969), pp. 251–2. The quotation is from Measure for Measure, I.iii.20. Bucer explicitly cites the Laws several times in De regno, but the footnotes, which disclose a far more extensive indebtedness, are the work of his modern editors. Plato, Laws, 2 vols., trans. R.G. Bury, Loeb Classical Library (London: William Heinemann, 1926), 625a. Subsequent references to this work will be included parenthetically in the text.

Notes

145

13. See Eric Voegelin, Plato and Aristotle, vol. 3 of Order and History (Baton Rouge: Louisiana State University Press, 1957), p. 226. 14. Plato, Statesman, trans. J.B. Skemp, in The Collected Dialogues of Plato, ed. Edith Hamilton and Huntington Cairns, Bollingen Series 71 (Princeton: Princeton University Press, 1961), 308d–311c. 15. Here, and from time to time in what follows, I have used A.E. Taylor’s translation of the Laws, reprinted in the Hamilton-Cairns Collected Dialogues of Plato, since Bury’s Loeb translation, for all its many virtues, sometimes struck me as unreasonably stuffy. (For example, Bury translates this passage as ‘young men and maidens consorting with one another affectionately.‘) 16. Hence the need for literary censorship, which the Athenian Stranger defends at length (659d–660a, 801d, 817ae). 17. Hence in striking opposition to the possessive individualism that characterizes English common law from the high Middle Ages on, Plato argues that a testator should not be allowed to dispose of his property as he pleases, but should instead be told that ‘neither your own persons nor the estate are your own; both belong to your whole line . . . and still more absolutely . . . to the community . . . . My law will be made with a general view to the best interests of society at large and your whole line, as I rightly hold the single person and his affairs of minor importance’ (Laws 923ab). On English property law, see Alan Macfarlane, The Origins of English Individualism: The Family, Property and Social Transition (Oxford: Blackwell, 1978). 18. Virtually all pre-modern ethical systems, Christian as well as classical, similarly assume that the whole takes precedence over its parts, but the primacy of the former is more absolute in the Platonic than, let us say, Aristotelian tradition. For St Augustine’s refusal to oppose individual happiness to the common good, see Chapter 4, p. 113. 19. Laws 759a, 760ac, 764d, 784ab, 945be, 956c, 964c–968b. 20. Voegelin, Plato, pp. 141, 221. 21. Jo. Matthias Gesner, Linguae et eruditionis Romanae thesaurus post Ro[berti] Stephani et aliorum . . . curas digestus, locupletatus, emendatus (Leipzig, 1749) (a revised edition of Stephanus’s 1543 Latinae linguae thesaurus), q.v. heros. Stephanus is quoting Servius’ commentary on the Aeneid. The phrase is itself a translation of Hesiod, Works and Days 158–60. See also the entry under ‘Held, heros’ in the Historisches Woerterbuch der Philosophie, ed. Joachim Ritter, 10 vols. to date (Basel and Stuttgart: Schwabe, 1971–) 3:1043–6. 22. Voegelin, Plato, p. 227. 23. King James VI and I, Political Writings, ed. Johann Sommerville, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1994), p. 1. 24. Aristotle, Politics, trans. Benjamin Jowett, in vol. 2 of The Complete Works of Aristotle: The Revised Oxford Translation, ed. Jonathan Barnes, 2 vols., Bollingen Series 71.2 (Princeton: Princeton University Press, 1984), 7.14.1332b12–15. 25. Cicero, De legibus 1.15, in De republica, De legibus, trans. Clinton Walker Keyes, Loeb Classical Library (London: William Heinemann, 1928). References to this work will be given hereafter parenthetically in the text.

146

Notes

26. The wholesale repudiation of pleasure is characteristic of Stoicism, the dominant influence on Cicero’s ethics. See his De officiis, trans. Walter Miller, Loeb Classical Library (Cambridge: Harvard University Press, 1968), 3.4.20, 3.33.119. 27. Josephus, Against Apion 2.156, 165, 184, in vol. 1 of Josephus, 8 vols., trans. H. St. J. Thackeray, Loeb Classical Library (London: William Heinemann, 1926). References to this work will hereafter be given parenthetically in the text. 28. Margo Todd, Christian Humanism and the Puritan Social Order (Cambridge: Cambridge University Press, 1987). 29. The great majority of Bucer’s classical references are to Plato (principally Republic, Statesman, Laws), Cicero (principally De legibus and De officiis), and the texts of Roman law; There are also scattered references to Aristotle, Xenophon, Demosthenes, Aulus Gellius, Columella, Plutarch, and Isocrates. 30. Martin Bucer, De regno Christi, ed. Pauck, p. 175. This is a wonderfully faithful translation of the Latin, which can be found in vol. 15 of Martini Buceri opera latina, ed. François Wendel (Paris: Presses Universitaires de France, 1955). Both the page number in the Pauck edition and the uniform book/chapter citation will hereafter be given parenthetically in the text. 31. The reference is to Laws 634de, where the Athenian Stranger comments that, when a city’s laws are ‘wisely framed,’ one of the best laws ‘will be that which enjoins that none of the youth shall inquire which laws are wrong and which right, but all shall declare in unison, with one mouth and one voice, that all are rightly established by divine enactment, and shall turn a deaf ear to anyone who says otherwise.’ 32. In the original, Bucer here quotes (in Greek) from Laws 760a. 33. These holy men show up throughout De regno: see, for example, pp. 177, 236, 267, 335, 362–3 (1.1, 1.7, 2.2, 2.48, 2.57). 34. In Paul, of course, the church is the body of Christ. 35. The one aspect of Bucer’s sexual legislation that drops out of Tudor–Stuart Puritanism is the allowance of divorce; it is this section of De regno that Milton translated in 1644 as The Judgment of Martin Bucer concerning Divorce. 36. So Maus describes Claudio and Julietta as attempting ‘to create for themselves an unseen life of bodily pleasure, a life that dispenses with the consent and collaboration of the community’ (Katharine Eisaman Maus, Inwardness and Theater in the English Renaissance [Chicago: University of Chicago Press, 1995], p. 161). 37. R.H. Helmholz, The Spirit of Classical Canon Law (Athens: University of Georgia Press, 1996), p. 238. After the Council of Trent in 1564, however, the presence of a priest became necessary in Roman Catholic countries, but in 1597 the Church of England reaffirmed the medieval rule that mutual consent sufficed for a valid marriage (Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640, Past and Present Publications [Cambridge: Cambridge University Press, 1987], pp. 132–5; R.H. Helmholz, Roman Canon Law in Reformation England [Cambridge: Cambridge University Press, 1990] pp. 69–70). 38. Corpus iuris canonici, 2 vols., ed. Aemilius Friedberg (Leipzig: Bernhard Tauchnitz, 1879), 1.5.2 (1:7–8). The passage, which is taken from a letter of

Notes

39. 40. 41.

42. 43.

44. 45.

46. 47. 48. 49.

50. 51. 52.

147

Gregory the Great, also occurs in Bede, Ecclesiastical History of the English Nation, Opera Historica, 2 vols., trans. J.E. King, Loeb Classical Library (Cambridge, Mass.: Harvard University Press, 1954), 1:134–5. See also Stephen Greenblatt, Renaissance Self-Fashioning from More to Shakespeare (Chicago: University of Chicago Press, 1980), pp. 248–50. Aquinas, however, denies that there is anything inherently sinful in the ‘the intense pleasure experienced in the sexual act (abundantia delectionis quae est in actu venereo),’ since ‘the quantity of the sensual pleasure experienced is morally irrelevant (ad virtutem non pertinet quantum sensus exterior delectetur)’ (Summa theologiae, 5 vols. 3rd edition [Madrid: Biblioteca de Autores Cristianos, 1962], 2.2.153.2; translation mine). Thomas Starkey, A Dialogue Between Reginald Pole and Thomas Lupset, ed. Kathleen Burton (London: Chatto & Windus, 1948), p. 22. Starkey, A Dialogue, p. 22. For Starkey’s debt to Plato, as well as to Aristotelian political theory (in particular Marsilius of Padua’s Defensor Pacis), see Burton’s ‘Introduction,’ A Dialogue, p. 15. Starkey, A Dialogue, pp. 138–41, 144, 147, 183. The English Renaissance work most obviously indebted to the Laws is, of course, More’s Utopia, but More consistently softens Plato’s hard edges: they have not been smoothed away, but they are less sharp. The most striking and significant change is that Utopia mounts a defense of pleasure (based in part on the Philebus), which, however hedged, alters the fundamental character of Platonic polity, diluting its overpowering organicism with considerations of individual good. The quoted phrases are from Paradise Lost 2.1047–52. The Latin here reads ‘stuprum obtulisse cuiusquam uxori, sponsae, filiae.’ That is, Bucer does not differentiate between adultery (defiling someone’s wife) and fornication (defiling someone’s daughter). Nor is there a clear-cut distinction between these terms in early modern English: Martin Ingram thus cites several instances where husbands were accused of committing ‘adultery’ with their wives before they were married (Church Courts, p. 232). In the Homilies, ‘whoredom,’ ‘adultery,’ and ‘fornication’ are used as nearsynonyms (The Two Books of Homilies Appointed to be Read in Churches, ed. John Griffiths [Oxford: Oxford University Press, 1859], pp. 118–27). Thomas, ‘Puritans and Adultery,’ p. 273. Ibid., p. 257. The law, it should be added, was very rarely enforced and lapsed at the Restoration. Homilies, p. 118. King James makes the same point in Basilicon Doron, Political Writings, p. 39. Philip Stubbes, Anatomy of the Abuses in England, ed. Frederick Furnivall, New Shakespeare Society Publications, series 6, no. 4, 6 (London, 1877–79; rpt. Vaduz: Kraus Reprint, 1965), p. 90. Stubbes, Anatomy, Epistle Dedicatory, p. iii; pp. 98–101. See also An Admonition to the Parliament (1572), in Puritan Manifestoes, pp. 17–18, 134. Thomas Lupton, Too Good to be True (London, 1580), pp. 63–64. Stubbes, Anatomy of the Abuses in England. Part II: The Display of Corruptions, New Shakespeare Society Publications, series 6, no. 12 (London, 1882; rpt Vaduz: Kraus Reprint, 1965), p. 70. I am taking the labels ‘white’ and

148

53.

54.

55.

56. 57.

58.

59.

60. 61.

62.

63.

64.

Notes ‘black’ from early fourteenth-century Florentine usage: the Whites (Bianchi) were the Imperial party, the Blacks (Neri) the papal. Quoted in Joan Kent, ‘Attitudes of Members of the House of Commons to the Regulation of “Personal Conduct” in Late Elizabethan and Early Stuart England,’ Bulletin of the Institute of Historical Research 46 (1973):43. Stubbes, Anatomy, Epistle Dedicatory, p. iii. For an interesting case study, see Wilfrid Prest, ‘The Art of Law and the Law of God: Sir Henry Finch (1558–1625),’ Puritans and Revolutionaries: Essays in Seventeenth-Century History Presented to Christopher Hill, ed. Donald Pennington and Keith Thomas (Oxford: Clarendon, 1978). Kent, ‘Attitudes,’ p. 42. On the debates over these bills, see Thomas, ‘Puritans and Adultery,’ p. 273; Ingram, Church Courts, pp. 151–2, 210, 221; David Dean, Law-Making and Society in Late Elizabethan England: The Parliament of England, 1584–1601 (Cambridge: Cambridge University Press, 1996), 169, 177–87. J.W. Allen, English Political Thought, 1603–1660, 2 vols. (London: Methuen, 1938), 1:303. R.A. Markus, ‘The Latin Fathers,’ The Cambridge History of Medieval Political Thought c. 350 – c. 1450, ed. J. H. Burns (Cambridge: Cambridge University Press, 1988), p. 102. St Thomas Aquinas, On Law, Morality, and Politics, ed. William Baumgarth and Richard Regan (Indianapolis: Hackett, 1988), pp. 67–8. Aquinas, in fact, at one point explicitly denies that human laws punish fornication (Summa theologiae 2.2.69.2). See also Walter Ullmann, The Medieval Idea of Law as Represented by Lucas de Penna: A Study in Fourteenth-Century Legal Scholarship, intro. Harold Hazeltine (London: Methuen, 1946), p. 45. Francis Oakley, ‘Christian Obedience and Authority, 1520–1550,’ The Cambridge History of Political Thought, 1450–1700, ed. J.H. Burns with Mark Goldie (Cambridge: Cambridge University Press, 1991), pp. 170–3, 177–82. Philipp Melanchthon, Loci Communes Theologici (1521), trans. Lowell Satre, with revisions by Wilhelm Pauck, Melanchthon and Bucer, ed. Wilhelm Pauck, The Library of Christian Classics 19 (London: SCM Press, 1969), p. 148. (In subsequent editions of the Loci Communes, however, Melanchthon, while still distinguishing spiritual from temporal domains, gives the state considerably more authority over moral and religious conduct.) Journals of the House of Commons, 1:269; quoted in Kent, ‘Attitudes,’ p. 61. H. Townshend, Historical Collections or an exact account of the proceedings of the four last parliaments of Q. Elizabeth (1680), quoted in Kent, ‘Attitudes,’ p. 47. Francis Bacon, Of the Proficience and Advancement of Learning, Divine and Moral, in vol. 1 of The Works of Francis Bacon, 10 vols. (London, 1826), p. 186. Seneca, De beneficiis 3.20; Aquinas, Summa theologiae 2.2.104.5; John Milbank, Theology and Social Theory: Beyond Secular Reason (Oxford: Blackwell, 1990), pp. 12–13. On the emergence of the modern concepts of privacy, autonomy, and the secular, see Kevin Sharpe, ‘Private Conscience and Public Duty in the Writings of James VI and I,’ Public Duty and Private Conscience in

Notes

65.

66. 67.

68.

69. 70. 71. 72.

73. 74.

75.

149

Seventeenth-Century England: Essays Presented to G.E. Aylmer, ed. John Morrill, Paul Slack, and Daniel Woolf (Oxford: Clarendon, 1993), pp. 77–8; John Milbank, Theology and Social Theory, pp. 9–13. One could make the case that Lucio prefigures the ‘liberal’ position, and for the first half of the play it is hard not to cheer him on, yet he comes very close to destroying Mariana, Isabella, and the Friar-Duke, behaves despicably toward his child and lover, etc. If he prefigures anything, it is the vicious libertinism of Richardson’s Lovelace, not the liberalism of Locke. Maus, Inwardness and Theater, p. 159. The debate goes through a few more permutations – including Lucio’s slanderous and yet, if the Provost is right, quite logical claim that the Duke must have ‘had some feeling of the sport . . . and that instructed him to mercy’ (III.ii.104–5). Victoria Hayne, ‘Performing Social Practice: The Example of Measure for Measure,’ Shakespeare Quarterly 44 (1993):23 – overall, a wonderfully rich and compelling essay. See Hayne, ‘Performing,’ p. 14. Two Books of Homilies, pp. 124–5. James, Political Writings, p. 39. Peter Lake notes the same narrative logic in early Stuart murder pamphlets; see his ‘Deeds against Nature: Cheap Print, Protestantism and Murder in Early Seventeenth-Century England,’ Culture and Politics in Early Stuart England, ed. Kevin Sharpe and Peter Lake (London: Macmillan, 1994), pp. 263–8. James, Basilicon Doron, in Political Writings, p. 20; see also p. 143. Thus Cicero calls ambition cupiditas gloriae and cupiditas principatus (De officiis 1.8.26, 1.14.43, 1.19.64), and Augustine refers to it as the libido dominandi. Ibid., see also Seneca, On Mercy, in Moral and Political Essays, trans. John Cooper and J.F. Procope, Cambridge Texts in the History of Political Thought (Cambridge: Cambridge University Press, 1995), 1.11.4–1.12.5; Polybius, The Histories of Polybius, trans. Evelyn Shuckburgh (Bloomington: Indiana, 1962), 6.7; the whole of Suetonius’ The Twelve Caesars; and Desiderius Erasmus, The Education of a Christian Prince, trans. Lester Born (New York: Octogon Books, 1965), p. 174.

Chapter 2 1. Paradise Lost 4.505. 2. I doubt Shakespeare had read much Plato; for one thing, neither the Statesman nor the Laws (nor any of Plato’s major dialogues) was available in English translation. 3. Yet that this latter tradition retained (and retains) an occulted potency is implied by Carl Schmitt’s declaration that ‘all significant concepts of the modern theory of the state are secularized theological concepts’ – a claim no less suggestive for being only half-true (Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab [Cambridge: The MIT Press, 1985], p. 36).

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Notes

4. On the relative insignificance of constitutionalist ideas in sixteenthcentury England, see Howell Lloyd, ‘Constitutionalism,’ Cambridge History of Political Thought, 1450–1700, ed. J.H. Burns with Mark Goldie (Cambridge: Cambridge University Press, 1991), pp. 254–97; Alan Cromartie, ‘The Constitutionalist Revolution: The Transformation of Political Culture in Early Stuart England,’ Past & Present 163 (1999):80n. 5. See also Robert George, Making Men Moral: Civil Liberties and Public Morality (Oxford: Clarendon, 1993), pp. 21–8. 6. The moral allocation of power remains central to modern politics: all civil rights legislation, to take to most obvious example, aims at redistributing power to achieve ethical goals. 7. As well as, to my very great surprise, an Anglican clergyman. The only references to the church in De republica Anglorum are a couple of snide remarks about feeble priests being responsible for getting rid of perfectly good practices like trial by combat and slavery (ed. Mary Dewar [Cambridge: Cambridge University Press, 1982], 2.7, 3.3, 3.8). 8. Smith, De republica, 1.10, 1.2. The latter passage is worth quoting in full: ‘Then if that part which doth bear the rule do command that which is profitable to it, and the commandment of that part which doth rule on that sort is to be accepted in every commonwealth respectively to be just . . . it must needs follow that the definition which Thrasimachus did make – that to be just which is the profit of the ruling and most strong part – (if it be meant of the city or commonwealth) is not so far out of the way (if it be civilly understood) as Plato would make it.’ 9. Morrill, Revolt in the Provinces, pp. 68–9. 10. Conrad Russell, ‘Divine Rights in the Early Seventeenth Century,’ Public Duty and Private Conscience in Seventeenth-Century England: Essays Presented to G.E. Aylmer, ed. John Morrill et al. (Oxford: Clarendon, 1993), pp. 104–12. 11. A characteristic example of this mingling occurs in the charge given by Elizabethan justices of the peace at quarter sessions, which begins by noting that the hundreds of infractions listed in the charge can be grouped in different ways, and then proceeds to suggest some possible formats: the first divides them into ‘high treasons, petit treasons, felonies, [and] otherwise punishable and fineable offenses’; the third, by contrast, into offenses ‘either against the first or the second Table of the Ten Commandments of God’ (Lambard, Eirenarcha, quoted in W. S. Holdsworth, A History of English Law, 9 vols., 3rd edition [Boston: Little, Brown, 1922–26], 4:543). 12. Bacon, The Case of the Post-Nati of Scotland, Works, 4:323. 13. Richard Baxter, A Holy Commonwealth, in Richard Baxter and Puritan Politics, ed. Richard Schlatter (New Brunswick: Rutgers University Press, 1957), p. 85. 14. Baxter, Holy Commonwealth, pp. 77, 80, 84, 100. Although Harrington’s focus is emphatically ‘secular and sceptical,’ remnants of this millenarianism linger in Oceana (which also, oddly enough, has a marked, if unacknowledged, debt to Plato’s Laws); see Arthur Barker, Milton and the Puritan Dilemma, 1641–1660 (Toronto: University of Toronto Press, 1942), pp. 268–9; J.G.A. Pocock and Gordon Schochet, ‘Interregnum and Restoration,’ in The Varieties of British Political Thought, 1500–1800, ed.

Notes

15.

16.

17. 18.

19.

20. 21.

22. 23. 24.

25. 26.

27.

151

J.G.A. Pocock, with the assistance of Gordon Schochet and Lois Schwoerer (Cambridge: Cambridge University Press, 1993, pp. 168–71; Blair Worden, ‘English Republicanism,’ The Cambridge History of Political Thought, 1450–1700, ed. J.H. Burns with Mark Goldie (Cambridge: Cambridge University Press, 1991), pp. 472–5; H.F. Russell Smith, Harrington and His ‘Oceana’: A Study of a 17th Century Utopia and its Influence in America (Cambridge: At the University Press, 1914), pp. 14, 73. Richard Baxter, The Autobiography of Richard Baxter, Being the ‘Reliquiae Baxterianae’ Abridged from the Folio (1696), ed. J.M. Lloyd Thomas (London: Dent, 1925), p. 80. For the papal claim, see Ptolemy of Lucca, On the Government of Rulers: De regimine principum, trans. James Blythe (Philadelphia: University of Pennsylvania Press, 1997), pp. 185–6, 194. (Prior to the twentieth century, this work was attributed to St. Thomas Aquinas.) Ernst Kantorowicz, ‘Mysteries of State,’ Selected Studies (Locust Valley, NY: J.J. Augustin, 1965), p. 387. Francis Oakley, ‘Christian Obedience,’ pp. 177–80. Gardiner, who remained a Catholic, subsequently repudiated this ardent polemic on behalf of the royal supremacy; see A.G. Dickens, The English Reformation, 2nd edition (University Park: Penn State Press, 1989), pp. 197–8. John Whitgift, The Works of John Whitgift, 3 vols., ed. John Ayre, Parker Society (Cambridge: At the University Press, 1851; rpt. New York: Johnson Reprint, 1968), 1:472, 3:232. Thomas Fuller, The Holy State and the Profane State (Cambridge: Roger Daniel, 1642), 4.21. William Lamont, Godly Rule: Politics and Religion, 1603–1660, vol. 2 of Puritanism and the English Revolution, 3 vols. (Hampshire: Gregg Revivals, 1991), pp. 25, 31. John Foxe, Acts and Monuments (London, 1837), 7.446; quoted in Lamont, Godly Rule, p. 34. Quoted in Oakley, ‘Christian Obedience,’ p. 184. Anthony Grafton, ‘Renaissance and Counter-Renaissance,’ The Cambridge History of Political Thought, 1450–1700, ed. J.H. Burns with Mark Goldie (Cambridge: Cambridge University Press, 1991), p. 103. Milbank, Theology and Social Theory, p. 5. In both papal and presbyterian thought, the separation of church from state, sacred authority from temporal, is more clear-cut, which is why both could allow resistance to heretical rulers. See Whitgift, Works, 1:20; 3:232; J.H.M. Salmon, ‘Catholic Resistance Theory, Ultramontanism, and the Royalist Response, 1580–1620,’ The Cambridge History of Political Thought, 1450–1700, ed. J.H. Burns with Mark Goldie (Cambridge: Cambridge University Press, 1991), p. 236. I have discussed Hooker’s views much more fully in some of my earlier work: see Debora Shuger, Habits of Thought in the English Renaissance: Religion, Politics, and the Dominant Culture, The New Historicism: Studies in Cultural Poetics (Berkeley: University of California Press, 1990; rpt. Toronto: University of Toronto Press, 1997), chapter 1; The Renaissance Bible: Scholarship, Subjectivity, and Sacrifice, The New Historicism: Studies in Cultural Poetics (Berkeley: University of California Press, 1994), pp. 190–1; ‘“Society

152

28.

29.

30. 31.

32.

33.

34. 35. 36. 37. 38. 39. 40. 41. 42.

Notes Supernatural”: The Imagined Community of Hooker’s Laws,’ Richard Hooker and the Construction of Christian Community, ed. Arthur Stephen McGrade (Tempe, AZ: MRTS, 1997), pp. 307–29 (revised version included in Religion and Culture in Early Modern England, ed. Debora Shuger and Claire McEachern (Cambridge: Cambridge University Press, 1997), pp. 116–41. Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992), p. 274; see also Shuger, Habits of Thought, pp. 32–3. Richard Hooker, The Works of Richard Hooker, ed. John Keble, rev. R.W. Church and F. Paget, 3 vols., 7th edition (1888; repr. New York: Burt Franklin, 1970), 5.25.2. Ibid., 6.4.7. Elliot Rose suggests that Lupton ought not be labelled a Puritan, since he never criticizes ceremonies or bishops (although the fact that his ideal commonwealth simply omits them might be thought a criticism of sorts). This is largely a terminological quibble. Rose’s description of Lupton makes him a near-perfect example of what I mean by a ‘white’ Puritan: an ostentatiously Protestant ‘moral rigorist,’ who sought ‘to have the state wield a power that many a reformed church tried to exercise’ – that is, a power over virtually every human relationship and activity (‘Too Good to be True: Thomas Lupton’s Golden Rule,’ Tudor Rule and Revolution, ed. Delloyd Guth and John McKenna [Cambridge: Cambridge University Press, 1982], pp. 183–200). Lupton, ‘Preface to the Reader,’ Too Good to be True, np. Note that all Lupton’s names need to be read backwards; thus ‘Siuqila’ reversed is aliquis, the Latin for ‘somebody.’ Thomas Lupton, The Second Part and Knitting up of the Book Entitled ‘Too Good to be True’ (London, 1581); parts reprinted in Geoffrey Bullough, ed., Narrative and Dramatic Sources of Shakespeare, 8 vols. (London: Routledge and Kegan Paul, 1957–75), 2:514–24. Lupton, Too Good to be True, pp. 9, 39, 77. Ibid., p. 31. Lupton, Too Good to be True, pp. 32, 81; The Second Part, L4v. Lupton, Too Good to be True, p. 66. Ibid., pp. 112, 128, 161. Ibid., p. 85. Mary Lascelles, Shakespeare’s ‘Measure for Measure’ (London: Athlone, 1953), p. 37. I am quoting from the Geneva Bible, but the King James version renders this passage in the same words. Promos and Cassandra is technically two playlets: The History of Promos and Cassandra and The Second Part of the History of Promos and Cassandra; as these titles indicate, they are not separate works but two halves of a single dramatic narrative; The Second Part is not a sequel but more like the final reel of a two-reeler. Each playlet has five acts, divided into several short scenes. References will be given parenthetically in the text, according to part, act, scene (for example, 1.II.iii refers to the first playlet, second act, third scene). I am using throughout Bullough’s edition in Narrative and Dramatic Sources, 2:442–513.

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43. I do not think Whetstone is making this up. George Wither’s 1641 volume of hymns for all possible occasions includes one ‘For a Prisoner at the Place of Execution,’ prefaced by a headnote explaining that ‘it is usual for prisoners brought to suffer for death, to sing at the place of their execution, that they may testify their hope of a joyful resurrection, and of mercy in the world to come’ (Hallelujah, or Britain’s Second Remembrancer, ed. Edward Farr [London: John Russell Smith, 1857], p. 382). 44. This traditional distinction is preserved in Sir Edward Coke’s gloss on the statute Circumspecte agatis: ‘as in the secular courts the kings laws do sway and decide causes, so in ecclesiastical courts the laws of Christ should rule and direct . . . Linwood’s words are these, “In curia christianitatis, i. ecclesiae, in qua servantur leges Christi, cum tamen in foro regio serventur leges mundi’’’ (The Second Part of the Institutes of the Laws of England [London, 1792], p. 487). Note the clear implication that the common law is not that of Christ’s kingdom. See W.J. Bouwsma, ‘Lawyers in Early Modern Culture,’ American Historical Review 78 (1973):321–2; Eusden, Puritans, Lawyers, and Politics, p. 125n (although Eusden does mention a counter-instance: an anonymous manuscript of c. 1624–29 deriving English common law from Scripture [pp. 121–2]). 45. The frontispiece is discussed (and reproduced) in Shuger, Renaissance Bible, pp. 190–1. 46. John Procope, ‘Greek and Roman Political Theory,’ pp. 27–8, 32; D.M. Nichol, ‘Byzantine Political Thought,’ p. 52; R.A. Markus, ‘The Latin Fathers,’ pp. 93–4, 109. All three essays are in The Cambridge History of Medieval Political Thought c. 350–c. 1450, ed. Burns (Cambridge: Cambridge University Press, 1988). See also Ernst Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton: Princeton University Press, 1957), p. 8n. 47. Jean Dunbabin, ‘Government,’ The Cambridge History of Medieval Political Thought c. 350–c. 1450, ed. J.H. Burns (Cambridge: Cambridge University Press, 1988), p. 483; Ptolemy, On the Government of Rulers, p. 138; St Thomas Aquinas, On Politics and Ethics, ed. Paul Sigmund (New York: Norton, 1988), pp. 25–6. 48. Aquinas, On Politics and Ethics, pp. 26–7. 49. J.P. Canning, ‘Introduction: Politics, Institutions and Ideas,’ The Cambridge History of Medieval Political Thought c. 350–c. 1450, ed. J.H. Burns (Cambridge: Cambridge University Press, 1988), pp. 360–2. 50. Dunbabin, ‘Government,’ pp. 484–5, 488. 51. Ptolemy of Lucca, a near-contemporary of Giles, describes kings as figures of Christ, their minds ‘elevated to the divine’ by supernatural illumination; whereas in a republic the magistrate can only enforce the law, kings may judge according to conscience, so that their rule more closely resembles divine providence (On the Government, pp. 144, 150–2, 123). 52. Dunbabin, ‘Government,’ pp. 483–92; Kantorowicz, The King’s Two Bodies, pp. 8, 16–17. 53. The Journal of Sir Roger Wilbraham, ed. Harold Spencer Scott, The Camden Miscellany 10 (1902): 42–4. Scott quotes from Carleton’s letter to Chamberlain of 29 December, 1601. 54. If those who declined to use this sort of transcendent lexicon were sent to

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55.

56.

57.

58. 59. 60. 61.

62.

63. 64. 65. 66. 67.

68. 69.

Notes Tyburn or the galleys, that would be a different story. But the language of sacral kingship was not compulsory; many respectable and respected Elizabethans do not depict the crown in these terms: for example, Richard Hooker, Sir Thomas Smith, and Archbishop Whitgift. Francis Bacon, The Beginning of the History of Great Britain (c. 1610), Works, 14 vols., ed. James Spedding, Robert Ellis, and Douglas Heath (London: Longman, 1857–74) 6:278–9: William Camden, The History of the Most Renowned and Victorious Princess Elizabeth, 4th edition (London, 1688), p. 564. See Bennett, Measure, pp. 83–4. In 1603–4, Basilicon Doron went through seven English and one Welsh editions; James’s True Law of Free Monarchies, which offers a far more hard-edged version of divine-right monarchy, was reprinted twice during the same period (Pope, ‘The Renaissance Background,’ p. 70). See, for example, John Neville Figgis, The Divine Right of Kings (1896), intro. G.R. Elton (New York: Harper and Row, 1965), pp. 27–9, 81; Allen, English Political Thought, vol. 1; J. P. Sommerville, Politics and Ideology in England, 1603–1640 (London: Longman, 1986). There have been a number of recent critiques of this constitutionalist model; see, in particular, Glenn Burgess, Absolute Monarchy and the Stuart Constitution (New Haven: Yale University Press, 1996); Conrad Russell, The Causes of the English Civil War (Oxford: Oxford University Press, 1990); Kevin Sharpe, The Personal Rule of Charles I (New Haven: Yale University Press, 1992). ‘Certain Sermons or Homilies’ (1547) and ‘A Homily against Disobedience and Wilful Rebellion’ (1570), ed. Ronald B. Bond (Toronto: University of Toronto Press, 1987), p. 212; Smith, De republica, ed. Dewar, p. 88; Marc Bloch, The Royal Touch: Sacred Monarchy and Scrofula in England and France, trans. J.E. Anderson (London: Routledge, 1973), pp. 190–2, 207–20. Erasmus, Education, p. 162. Stubbes, Anatomy of Abuses, Part II, p. 8. Holdsworth, English Law, 9:5. Ellesmere’s untitled manuscript is reprinted in Louis Knafla, Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge: Cambridge, 1977), p. 198. The work was at one point attributed to Bacon and can be found in vol. 4 of the 1826 edition of his Works, pp. 305–8. Commons Debates 1621, ed. W. Notestein, F.H. Relf, and H. Simpson, 7 vols. (New Haven: Yale University Press, 1935), 2:235; quoted in Russell, ‘Divine Rights,’ p. 105. See also Little, Religion, Order, and Law, p. 187n. Two Speeches Made by John Pym (1641), p. 3; quoted in Russell, ‘Divine Rights,’ p. 105. Ibid., p. 104. Bond, ed., Certain Sermons, p. 212. Ibid. Taverner, Garden of wysdome (1539), fo. 14; Morison, An Exhortation to styrre all Englyshe men to the defence of theyr countreye (1539), sig. C2v. Quoted in Oakley, ‘Christian Obedience,’ p. 181. The 1559 Book of Common Prayer will usually translate sacerdos as ‘minister.’ James, Political Writings, p. 52.

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70. See Figgis, Divine Right of Kings, xvi–xx, xxxii, 89–106, 145. 71. Francis Bacon, The Case of the Post-Nati of Scotland, Works (1826), 4:323. 72. Shakespeare’s Duke, it may be worth pointing out, is for all intents and purposes, a monarch or sovereign; he is certainly not a duke in the English sense. 73. So too ‘the walls’ in Elizabeth’s royal chapel at Richmond, ‘bore carvings of the English kings “whose life and virtue was so abundant that it hath pleased Almighty God to . . . recount as saints”’ (Peter McCullough, Sermons at Court: Politics and Religion in Elizabethan and Jacobean Preaching, Cambridge Studies in Early Modern British History [Cambridge: Cambridge University Press, 1998], p. 22). I am grateful to Penelope Winton of the York Glaziers’ Trust for information about the York Minster windows. 74. Erasmus, Education, p. 162; Bond, ed., Certain Sermons, p. 212. Such visual representations of English sacral monarchy did not end with the Reformation. Inigo Jones’s severely neoclassical choir screen at Winchester Cathedral, erected in 1640, was adorned by two monumental bronzes, set in niches flanking the central arch: one of James, the other of Charles; the screen itself is gone, but the statues themselves now stand along the west wall on either side of the central doorway. The great window in the north transept at Wells, which portrays the holy kings of Anglo-Saxon England, is Victorian. In Ripon Cathedral, the vivid polychrome statues of its 1947 choir screen include Athelstan, Henry II, and the wonderfully quizzical image of James I reproduced on the dustjacket of this book. 75. See also Edward Tayler, ‘Measure for Measure: Its Glassy Essence,’ Cithara 37 (1997): 4–5. 76. Although a wicked king is nevertheless a king, and a wicked priest is likewise still a priest. See article 26 of ‘The Thirty-Nine Articles’ (1563): ‘Neither is the effect of Christ’s ordinance taken away by their [some priests’] wickedness, nor the grace of God’s gifts diminished from such as by faith, and rightly, do receive the Sacraments ministered unto them; which be effectual, because of Christ’s institution and promise, although they be ministered by evil men’ (the ‘Thirty-Nine Articles’ are reprinted in all twentieth-century American editions of the Book of Common Prayer; they can also be found in David Cressy and Lori Anne Ferrell, eds., Religion and Society in Early Modern England: A Sourcebook [London: Routledge, 1996], pp. 59–70). 77. James, Political Writings, p. 13. David Lloyd Stevenson discusses the parallels between Basilicon Doron and Measure for Measure at length in his The Achievement of Shakespeare’s ‘Measure for Measure’ (Ithaca: Cornell University Press, 1966), pp. 134–66. 78. Ibid., pp. 33–4. 79. Ibid., pp. 204–5. 80. See, for example, William Tyndale, The Parable of the Wicked Mammon, in Doctrinal Treatises and Introductions to the Different Portions of The Holy Scriptures, ed. Henry Walter, Parker Society (Cambridge: The University Press, 1848), pp. 50–5; An Homily or Sermon of Good Works, in Bond, ed. Certain Sermons, pp. 103–13. These take issue with the Catholic-Aristotelian view that right acts create a habit of virtue, so that one becomes inwardly good by doing good works. Yet the Homily’s argument that ‘good deeds be

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81. 82.

83.

84.

85.

86. 87.

Notes not measured by the facts themselves, and so dissevered from vices, but by the ends and intents for the which they be done,’ can be (as it is in this Homily) a specifically Protestant claim, medieval canon and common law also hold that a right act done for the wrong reasons is a sin; so, according to the canonists, if a judge sentences a murderer to life imprisonment, this being both the legally appropriate punishment and warranted by the facts of the case, but the judge does so in order to win a barroom bet or please a friend, the judge is himself guilty of murder (J.M.B. Crawford and J.F. Quinn, The Christian Foundations of Criminal Responsibility: A Philosophical Study of Legal Reasoning, Toronto Studies in Theology 40 [Lewiston, NY: Edwin Mellen, 1991], p. 185). James, Political Writings, p. 4. Muriel Bradbrook makes the wonderful suggestion that these ‘short rhymed verses . . . may represent some aural memory from Shakespeare’s youth of the octosyllabics used in the old craft mysteries for the speeches of divinity’ (Muriel Bradbrook on Shakespeare [Brighton: Harvester Press, 1984], p. 122). David Thatcher notes that this theme, so central to Measure for Measure, receives only minimal attention in Shakespeare’s sources (‘Mercy and “Natural Guiltiness” in Measure for Measure,’ TSLL 37(1995): 264. Leona Helmsley (aka the Queen of Mean) was a multi-millionaire New York real-estate tycoon; the comment was widely reported during her 1988–89 trial for tax evasion. The Duke’s rather obscure lines about ‘draw[ing] with idle spiders’ strings / Most ponderous and substantial things’ (III.ii.237–8) probably alludes to a proverb that makes precisely this point: ‘that laws are like spiders’ webs which catch the small flies but let big insects break through.’ See Gibbons’ note on this passage in his edition of Measure and, earlier, N. W. Bawcutt, ‘“He Who the Sword of Heaven Will Bear’: The Duke Versus Angelo in Measure for Measure,’ Shakespeare Survey 37 (1984): 90. Smith, De republica, pp. 49–50. Kenneth Pennington, The Prince and the Law, 1200–1600: Sovereignty and Rights in the Western Legal Tradition (Berkeley: University of California Press, 1993), pp. 78–9; Dieter Wyduckel, Princeps legibus solutus: eine Untersuchung zur frühmodernen Rechts- und Staatslehre (Berlin: Duncker & Humblot, 1979), pp. 54–60. So St Ambrose: ‘What you have prescribed for others, you have prescribed for yourself; the emperor issues laws that he ought to be first to preserve’ (Patrologia Latina, ed. Migne 16:1047; quoted in Pennington, p. 79); see also Aquinas’s response to the question of whether the prince is obliged to obey the law: ‘with respect to the directive [as opposed to coercive] force of the law, the prince is subject to the law of his own will; as it is said . . . “whoever decrees a law for another ought himself to obey it. The authority of a wise man likewise says, obey the law that you yourself have made.” . . . So our Lord rebukes those who “say and yet do not” and who “impose heavy burdens on others and themselves will not lift a finger to move them”’ (Summa theologiae 1.2.96.5; translation mine). Note that in each case, the claim is not that the prince must be morally good in his private life, but that he must submit his own desires to the same restrictions he imposes upon his subjects.

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88. Martin Luther, Lectures on Romans, trans. Walter Tillmanns and Jacob Preus, ed. Hilton Oswald, vol. 25 of Luther’s Works, 55 vols. (Saint Louis: Concordia, 1955–86), p. 172. Augustine tells the story of Alexander and the pirate in City of God 4.4. The concluding italicized passage is quoted from Romans 2:1. 89. Martin Luther, The Sermon on the Mount, ed. Jaroslav Pelikan, vol. 21 of Luther’s Works, 55 vols. (Saint Louis: Concordia, 1955–86), p. 221. 90. William Shakespeare, King Lear, ed. Tucker Brooke and William Phelps, The Yale Shakespeare, rev. edition (New Haven: Yale University Press, 1963), IV.vi.164. This line is only in the folio. 91. James, Political Writings, pp. 204–5. 92. Shakespeare’s Ulysses draws much the same contrast in his (over-quoted and now infamous) speech on degree: the rule of one man over another is either the divinely ordained mimesis of heavenly order or the free play of libido dominandi where force becomes right, ‘or rather, right and wrong, / . . . lose her names’ and ‘everything includes itself in power’ (Troilus and Cressida, ed. Jackson Campbell, The Yale Shakespeare, rev. edition [New Haven: Yale University Press, 1965], I.iii.116–19). See also Philipp Melanchthon’s rather more conservative version of the latrocinia topos: ‘[Human reason] regards political power as unjust force and tyranny or latrocinium both on account of the infinite faults that occur in its exercise and because tyrants, incited by ambition and other desires, sometimes seize such power. . . . [But Holy Scripture] teaches that this arrangement – namely, that the people are governed by magistrates, so that superiors rule and subjects obey – is established by God, just as the movements of the stars and the alternation of the seasons are divinely ordained’ (Roemerbrief-Kommentar 1532, vol. 5 of Melanchthons Werke, ed. Gerhard Ebeling and Rolf Schaefer [Guetersloh: C. Bertelsmann, 1965], p. 320; my translation). 93. The quotation is from Lord Ellesmere’s untitled manuscript on the prerogative (c. 1604), in Knafla, Law and Politics, p. 198. 94. Machiavelli, The Discourses, 1.37 in The Prince and The Discourses, p. 208; Thomas Hobbes, Leviathan 1.11, 13, in The English Philosophers from Bacon to Mill, ed. Edwin Burtt, Modern Library (New York: Random House, 1939), pp. 58–60. 95. Augustine, City of God, intro. David Knowles, trans. Henry Bettenson (Middlesex: Penguin Books, 1972), 14.1, 28. Augustine, it should be added, has no interest in sacral rulers. These enter Christianity via Eusebius. 96. See, in particular, M. Lindsay Kaplan, The Culture of Slander in Early Modern England (Cambridge: Cambridge University Press, 1997), pp. 96–9, 108. 97. As Tayler notes, ‘Lucio persists in regarding the Duke as a mirror image of himself (a habit now usually known as ‘projection’)’ (‘Its Glassy Essence,’ p. 17).

Chapter 3 1. Smith wrote De republica around 1565, but the work was not published until 1583; over the next century it ran through eleven editions; see W.S.

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2.

3.

4. 5.

6.

7.

8. 9. 10.

11. 12. 13. 14. 15. 16.

Notes Holdsworth, ‘The Prerogative in the Sixteenth Century,’ Columbia Law Review 21 (1921): 564. L. Alston, ‘Introduction,’ De republica Anglorum: A Discourse on the Commonwealth of England by Sir Thomas Smith, ed. L. Alston (Cambridge: At the University Press, 1906), p. xxvi. The first two chapters of the second book of De republica deal with Parliament, the third with the monarch, and the following 22, plus the entire third book, with the courts and the law. William Lambarde, Archeion: Or, a Discourse upon the High Courts of Justice in England, ed. Charles McIlwain and Paul Ward (Cambridge, MA: Harvard University Press, 1957), p. 140. Subsequent references will be given parenthetically in the text. Holdsworth, ‘Prerogative,’ p. 566. With respect to the period from c. 1530–1630, Thomas Barnes comments that ‘never before, save perhaps at the very origins of the common-law system . . . was there such an intimate link between policy and law. Nor would there ever be again, for parliamentary supremacy . . . effectively took the King’s government out of judicial law-making and equally took the judges out of politics’ (‘Star Chamber and the Sophistication of the Criminal Law,’ Criminal Law Review [1977]: 326). ‘Ad hoc autem creatus est rex et electus, ut justitiam faciat universis, et ut in eo Dominus sedeat et per ipsum sua iudicia discernat.’ Quoted in Kantorowicz, The King’s Two Bodies, p. 159, my translation. In medieval political thought, royal power is usually viewed as judicial rather than legislative in character; see Hazeltine’s ‘Introduction’ to Ullmann, The Medieval Idea of Law, pp. xxxvi–xxxvii. William Hudson, A Treatise of the Court of Star Chamber, Collectanea Juridica, 2 vols., ed. Francis Hargrave (London, 1792), 2:9–10. Although, Hudson acknowledges, necessity requires the king to delegate most cases to inferior tribunals, yet all these ‘courts of justice have flowed out of this [royal] court, as out of a fountain.’ Edmund Spenser, The Faerie Queene V.pr.x, in The Complete Poetical Works of Spenser, ed. R.E. Neil Dodge (Boston: Houghton Mifflin, 1908). James, Political Writings, p. 205; virtually the same passage occurs at the beginning of his 1598 The True Law of Free Monarchies (ibid., p. 64). There is a wrenching passage where James describes the work to his son as ‘a little forwarning’ of a king’s ‘great and heavy burthen’ so that he will ‘foresee the weight of it before hand and make yourself able to support the same’ (A Meditation upon the 27, 28, 29 Verses of the XXVII Chapter of Saint Matthew, or, A Pattern for a King’s Inauguration, Political Writings, pp. 229–30). Ibid., pp. 237, 240–1. Ibid., p. 241. Ibid., p. 229. Ibid., p. 24. See, for example, Isaiah 1:17–23, 3:13–15, 10:1–3; Jeremiah 22:1–3, 16–17; Amos 8:4–7. A source that James himself cites in his annotations to the passage quoted above.

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17. Cicero, De officiis, 2.41. 18. Quoted in Annabel Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1997), p. 171n. 19. I have discussed this more fully in my ‘Castigating Livy: The Rape of Lucretia and The Old Arcadia,’ Renaissance Quarterly 51 (1998): 527–31, 537–9. 20. Kantorowicz, The King’s Two Bodies, pp. 155–62. 21. Hooker, Laws 8.2.7 (3:346); see also 8.2.5 (3:344); Sommerville, Politics and Ideology, p. 11. 22. So too Smith’s almost wholly secular account of English polity describes how the prince ‘for his duty to God and his commonwealth and subjects, must see justice executed against all malefactors and offenders against the peace, which is called God’s and his’ (De republica, pp. 123–4). 23. Lambarde, Archeion, pp. 43–4, 49; Edward Hake, Epieikeia: A Dialogue on Equity in Three Parts, ed. D.E.C. Yale, pref. Samuel Thorne (New Haven: Yale University Press, 1953), pp. 122–3. 24. Christopher St. German, Doctor and Student (1528), ed. T.F.T. Plucknett and J.L. Barton (London: Selden Society, 1974), p. 97. This definition glosses over the distinction made by modern legal historians between epieikeia (construing a statute according to the presumed intention of the legislator rather than the strict letter) and canonical equity (giving judgment according to conscience rather than the words of the law); both concepts inform sixteenth-century discussions of equity but they are neither clearly nor consistently differentiated (see Barton’s introduction to Doctor and Student, pp. xlvi–xlviii); Aristotelian epieikeia has both senses (Nicomachean Ethics 5.10.1137b20–25; Rhetoric 1.13.1374a20–1374b25; 1.15.1375a30–1375b5). 25. Holdsworth, English Law, 5:219; Theodore Plucknett, A Concise History of the Common Law, 5th ed. (Boston: Little, Brown, 1956), p. 679; Cromartie, ‘Constitutionalist Revolution,’ pp. 81–2, 89. 26. Schmitt, Political Theology, p. 5. The work was originally published in German in 1922; this is a translation of the revised 1934 edition. 27. Aquinas, On Law, Morality, and Politics, p. 82; see also p. 73. 28. Jean Bodin, Method for the Easy Comprehension of History, trans. Beatrice Reynolds (New York: Columbia University Press, 1945), p. 175. 29. Whitgift, Works, 1:272–3. 30. Ibid. 31. Aristotle, Politics 3.16.1287a; Plato, Statesman 294ac. See Shuger ‘Castigating Livy,’ p. 539; Barbara Tovey, ‘Wisdom and the Law: Thoughts on the Political Philosophy of Measure for Measure’, Shakespeare’s Political Pageant: Essays in Literature and Politics, ed. Joseph Alulis and Vickie Sullivan (USA: Rowman and Littlefield, 1996), p. 73. Renaissance Latin editions of the work now usually Englished as the Statesman (the Greek is ‘Politikos‘) render its title as Politicus. It is of some interest that the dialogue illustrates the superiority of equity over law by the story of a doctor who, having prescribed a cure for his patient and gone abroad, upon his return decides whether to substitute a different regimen, depending on patient’s condition (295b-296a). The Statesman, which also

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32.

33.

34. 35.

36.

37.

Notes tells the story of the god who retires to a watchtower, is very interested in rulers who leave town and what happens in their absence, and thus would seem to belong to the same narrative ‘family’ (one with a long tradition of political involvement) as Measure for Measure and its analogues. Hooker, Laws 8.2.12 (3:352); Aquinas, Summa theologiae, 1.2.95.1; Smith, De republica, 1.8; Lloyd, ‘Constitutionalism,’ pp. 264–5; Constance Jordan, Shakespeare’s Monarchies: Ruler and Subject in the Romances (Ithaca: Cornell University Press, 1997), pp. 22–4, 28. A preference for law over equity also seems characteristic of Puritan thought; it is clearly visible in Lupton’s insistance that there should be absolutely no exceptions, no pardons, no loopholes. For Lupton, as for Stubbes, it is crucial that strict law be invariably enforced. See also Samuel Thorne’s preface to Hake, Epieikeia, pp. x–xii. Filmer’s Patriarcha being a case in point; see Sir Robert Filmer, Patriarcha and Other Writings, ed. J.P. Sommerville (Cambridge: Cambridge University Press, 1991), pp. 45–9; Burgess, Absolute Monarchy, pp. 220–1. Schmitt, Political Theology, p. 7. Even when Tudor–Stuart writers argue that equity can require exacerbation as well as mitigation of penalties, they still view it as essentially merciful. So in Hake’s dialogue, one of the speakers remarks that ‘[equity] (as I have read) signifieth sweetness, gentleness, goodness, mildness, moderation and such like. And notwithstanding that by the same epieikeia the letter of the law is otherwhiles sharpened or quickened by exposition to the punishing of some particular offences . . . . For who knoweth not that there is misericordia puniens [a mercy that punishes] as well as misericordia parcens [a mercy that pardons]’ (Epieikeia, pp. 103–4). Lambarde, Archaion, p. 45; see also James, Political Writings, p. 214; Ullmann, The Medieval Idea of Law, p. 41. According to Theodore Ziolkowski, in classical texts equity means that which is truly fair or just, the association of equity with mercy being medieval and Christian (The Mirror of Justice: Literary Reflections of Legal Crises [Princeton: Princeton University Press, 1997], p. 165); Martha Nussbaum’s work on Greco-Roman equity, however, makes it clear that this association was present from the beginning (‘Equity and Mercy,’ Philosophy and Public Affairs 22 [1993]: 85–105). Dean, Law-Making, pp. 55–7. The Elizabethan and Jacobean pardons are reprinted in The Statutes of the Realm (Buffalo: William S. Hein, 1993), 4:2. Except for Dean’s book, I have not found any discussion of – not even any mention of – these pardons. It is not at all clear to me how they worked. The pardons themselves begin with the sweeping offer of mercy I quoted, but then go on to exclude page after page of offenses. One gets the impression that they got you off the hook for parking tickets and library fines. But Plowden cites a case from 1570 where a man convicted of murder successfully takes refuge under one of these general pardons (Edmund Plowden, The Commentaries or Reports, 2 vols [London, 1816], 1:401). Such pardons, it should be noted, go back to the earliest period of Christian rule. From the mid-fourth century on, the Roman emperors made it a custom to set free all prisoners, except those convicted of five capital crimes (murder, sorcery, adultery, treason, rape), each Easter; see The Theodosian Code 9.38.6; Codex Justinianis 1.4.3; Sirmondian Constitutions,

Notes

38. 39.

40.

41.

42.

43.

44.

45.

46.

161

titles 7, 8 (The Theodosian Code, trans. and ed. Clyde Pharr, intro. C. Dickerman Williams [New York: Greenwood, 1969], pp. 253–4, 480). Lambarde, Archeion, pp. 39–40, 73; Knafla, Law and Politics, p. 197; Hake, Epieikeia, p. 140. This understanding of the royal prerogative as equitable jurisdiction goes back to late antiquity: so Procope notes that in Hellenistic monarchical theory ‘the commonest application, in fact, of the principle that the king is animate law is that he can make exceptions to the law as it stands. Above all, he can exercise clemency, the supreme royal prerogative’ (‘Greek and Roman Political Theory,’ p. 27; see also Wyduckel, Princeps legibus solutus, p. 49). The same understanding explains J. W. Allen’s striking observation that Tudor–Stuart absolutism did not claim that the king had ‘power to make law but a right to break it . . . . a right to override and set aside law, temporarily, in particular cases, when he judged it to be in the public interest that he should do so’ (English Political Thought, 1603–1660, 1:12). King James makes the same point in his 1598 True Law of Free Monarchies (Political Writings, p. 75). Knafla, Law and Politics, pp. 198, 200. Lord Ellesmere (then Sir Thomas Egerton) had already made much the same argument in 1589 (see Knafla’s note on p. 200). The following paragraph is based on Holdsworth, ‘Prerogative,’ p. 561; Plucknett, Common Law, pp. 194, 681. The concept is, in fact, a double backformation, since the distinction between absolute and ordinary power was originally (and remained so through the seventeenth century) a theological one. Lambarde, Archeion, pp. 17, 39. This is only part of the story; the lines of transmission along which absolute power passed from theological into political discourse are both numerous and tangled. See Francis Oakley, Omnipotence, Covenant, and Order: An Excursion in the History of Ideas from Abelard to Leibniz (Ithaca: Cornell University Press, 1984); Kenneth Pennington, The Prince and the Law. Sir Thomas Smith thus uses ‘absolute’ in a constitutional rather than juridic sense to mean something close to arbitrary or despotic rule (De republica 1.8). Bacon’s letter to James I in The Works of Francis Bacon (London: A. Millat, 1740), 4:612; quoted in Joseph Cropsey’s introduction to Thomas Hobbes, A Dialogue between a Philosopher and a Student of the Common Laws of England, ed. Joseph Cropsey (Chicago: University of Chicago Press, 1971), p. 9. Lambarde, Archeion, pp. 40, 95. For a similar formulation in the works of the thirteenth-century canonist Hostiensis, see Pennington, The Prince and the Law, p. 74. The link between Duke Vincentio and King James has long been noted: see, for example, Stevenson, Achievement, pp. 134–64; Bennett, Royal Entertainment, pp. 83–104. Carolyn Harper gives a bibliographical overview in her ’Twixt Will and Will Not: The Dilemma of ‘Measure for Measure’ (Niwot, Col.: Colorado, 1998), pp. 28–33, 40. J.H. Baker, An Introduction to English Legal History, 3rd edition (London: Butterworths, 1990), pp. 112–13. As Baker notes, it was precisely this residual power whose existence Coke denied in 1608 on the grounds that

162

47.

48.

49.

50.

51.

Notes the king had devolved all his judicative authority to the common law courts. G.R. Elton, The Tudor Constitution, 2nd edition (Cambridge: Cambridge University Press, 1982), pp. 18, 25–6; Plucknett treats both Star Chamber and Chancery, as well as the general topic of ‘equity under the Tudors,’ in his chapter on the early modern prerogative courts (Common Law, pp. 177–98). J.A. Guy refers to both as ‘courts of equitable proceedings’ (The Cardinal’s Court: The Impact of Thomas Wolsey in Star Chamber [Brighton: Harvester Press, 1977], p. 134; also pp. 17, 35, 96, 131). During the first half of the sixteenth century, Star Chamber had, like Chancery, a ‘general, equitable, civil jurisdiction; it was only in the early years of Elizabeth’s reign that it became an exclusively criminal court – a transformation of which Tudor–Stuart legal writers seem unaware.’ See Barnes, ‘Sophistication,’ p. 320. Lambarde, Archeion, p. 49; Sir Julius Caesar draws the same parallel between Star Chamber and the Court of Requests, a civil equity court set up in 1483 to hear poor men’s cases and suits involving members of the royal household (The Ancient State, Authority, and Proceedings of the Court of Requests [1597], ed. and intro. L.M. Hill, Cambridge Studies in English Legal History [Cambridge: Cambridge University Press, 1975], p. 226). On Star Chamber as a criminal equity court and the counterpart to Chancery in modern legal historiography, see Elton, Tudor Constitution, p. 174; Baker English Legal History, p. 137; L.M. Hill’s introduction to Caesar’s Ancient State, pp. xl–xli; John Guy, Tudor England (Oxford: Oxford University Press, 1988), p. 89. The parallels between the two courts are fairly extensive: both Star Chamber and Chancery followed what were basically canon/civil law procedures rather than those of common law; neither could take away either a man’s life or his land. Elton maintains that, unlike Chancery, ‘Star Chamber did not develop a new body of rules to cope with deficiencies in the criminal law,’ but administered ‘the law of England – common and statue law, with the addition of proclamations which had no force in the ordinary courts’ (Tudor Constitution, p. 174). Early modern legal writers, however, say the reverse. Richard Cosin, writing in 1593, remarks that Star Chamber punished ‘crimina extraordinaria,’ that is crimes having ‘no peculiar and proper name in law, or else no certain punishment determinately appointed (by law) for those who offend in them’ (An Apology for Sundry Proceedings by Jurisdiction Ecclesiastical [London, 1593], 2.2) – a view seconded by Richard Crompton’s 1594 treatise on the jurisdiction of the central courts, part of which was reprinted in 1630 as Star-Chamber Cases (London, 1630; rpt. Amsterdam: Theatrum Orbis Terrarum, 1975), p. 11. That is, the early modern writers view Star Chamber as administering an extra-legal justice to deal with the exception, that is, as an equity court. (Barnes, ‘Sophistication,’ p. 324). Hake, Epieikeia, p. 140; Hudson, Star Chamber, p. 8. See also Crompton, Star-Chamber Cases, p. 35. Harold Berman notes that ‘the power of the Chancellor’s subpoena . . . rested . . . in the fact that it was backed by the authority of the king’s Great Seal’ (Faith and Order: The Reconciliation of Law and Religion [Atlanta: Scholars Press, 1993], p. 68). On Chancery as a prerogative court, see also Plucknett, Common Law, p 176. The Diary of John Manningham of the Middle Temple, 1602–1603, ed. Robert

Notes

52.

53.

54. 55. 56. 57. 58. 59.

60. 61.

62.

63.

163

Parker Sorlien (Hanover, NH: The University Press of New England, 1976), p. 89; Hudson, Star Chamber, p. 9; Holdsworth, English Law, 1:500n. Holdsworth, English Law, 1:399, 478. The following paragraphs on the early history of the equity courts are based on Holdsworth, English Law, 1:399–409, 446–9, 477–508; 5:156, 216, 300; Plucknett, Common Law, pp. 176–84, 685ff; Elton, Tudor Constitution, pp. 152–4, 163–5; Barnes, ‘Sophistication,’ pp. 317–25; J.A. Guy, The Court of Star Chamber and its records to the reign of Elizabeth I, Public Record Office Handbooks 21 (London: Her Majesty’s Stationery Office, 1985) and The Cardinal’s Court. Smith, De republica, p. 127. Smith’s analysis conflates Star Chamber proper with the tribunal established by the 1487 Act Pro Camera Stellata, which empowered the Chancellor and other leading members of the Council, assisted by a bishop and the two chief justices, to deal with the offenses Smith describes. However, as T.G. Barnes points out, in the early sixteenth century, this tribunal was absorbed by Star Chamber, which inherits its focus on the ‘repression of misdemeanour, especially crimes corrupting justice.’ The offenses specified in the 1487 Act (and a similar 1495 Act dealing with perjury) remained the core of Star Chamber business until its abolition in 1641 (‘Sophistication,’ pp. 316–19). Lambarde, Archeion, pp. 49–52. Hudson, Star Chamber, p. 25. Holdsworth, English Law, 1:446. Plucknett, Common Law, p. 681; Smith, De republica, pp. 86, 117. Eusden, Puritans, Lawyers, and Politics, p. 55; Cromartie, ‘The Constitutionalist Revolution,’ pp. 76–120. This is explicit in the formula used when a plaintiff brought his case to Chancery: according to Smith, ‘after that he hath declared the mischief wherein he is, hath this as in the solemn form: and for so much as in this case he is without remedy in the common law, he requireth the chancellor according to equity and reason to provide for him and to take such order as to good conscience shall appertain’ (De republica, p. 93). Bacon, Works (1826) 4:366–7. Hudson, Star Chamber, p. 14; Knafla, Law and Politics, p. 106; Thorne, ‘Preface,’ Epieikeia, pp. xx–xxi; Plucknett, Common Law, pp. 176–84; Smith, De republica, p. 93; Roland Usher, The Rise and Fall of the High Commission (Oxford: Clarendon, 1913), pp. 152–3; Holdsworth, English Law, 5:281ff; Elton, Tudor Constitution, pp. 151–2. Plucknett, Common Law, pp. 158, 675, 680; Smith, De republica, pp. 87, 93, 117, 123; Dean, Law-Making and Society, p. 211; Berman, Faith and Order, pp. 65–7. Some sixteenth-century legal writers do, however, argue that the common law had a certain amount of equitable latitude, but by the later part of the century, those claiming the existence of a common law equity recognize that such a claim ran counter to accepted opinion (Hake, Epieikeia, pp. 2, 50–1, 121–3; Plowden, Reports, 2:466–68; see also Baker, English Legal History, p. 124). Both Thorne’s preface and Yale’s introduction to Epieikeia make a noble effort to elucidate Hake’s seriously murky distinction between common law equity and the equity exercised by the Chancellor. Samuel Daniel, ‘To Sr. Thomas Egerton, Knight, Lord Keeper of the Great

164

64. 65. 66.

67.

68. 69. 70. 71.

72. 73.

74. 75.

76.

77. 78. 79.

Notes Seal of England,’ 1:191–8 in The Complete Works in Verse and Prose, 4 vols., ed. Alexander Grosart (London, 1885), lines 13–20. Knafla, Law and Politics, p. 158. Holdsworth, English Law, 5:281ff; 4:278–81. Smith, De republica, pp. 93–4; see also Hake, Epieikeia, p. 2; Berman, Faith and Order, p. 58; Mark Fortier, ‘Equity and Ideas: Coke, Ellesmere, and James I,’ Renaissance Quarterly 51 (1998): 1262; James, Political Writings, p. 214 (here Chancery becomes ‘the dispenser of the King’s conscience’). St. German explains that conscience, as exercised in Chancery, never opposes positive law except ‘where the law of man is in itself directly against the law of reason or else the law of God . . . or where the general grounds of the law of man worketh in any particular case against the said laws [of reason and God], as it may do, and yet the law good . . . or else where there is no law of man provided for him that hath right to a thing by the law of reason or by the law of God’ (Doctor and Student, pp. 207–8). St German’s Doctor and Student, in a passage immediately proceding the key chapter on equity (1.16), thus describes how ‘Almighty God hath set conscience in the midst of every reasonable soul as a light whereby he may discern and know what he ought to do and what he ought not to do’ (p. 95). S.F.C. Milsom, Historical Foundations of the Common Law (London: Butterworths, 1969), pp. 80–1. Knafla, Law and Politics, p. 325; Hake, Epieikeia, p. 22. Quoted in Holdsworth, English Law, 5:286n. St Thomas More, The History of King Richard III, ed. Richard Sylvester (New Haven: Yale University Press, 1976), p. 28; Plucknett, Common Law, p. 431. In his 1609 treatise on English criminal law, Ferdinando Pulton still speaks of sanctuary as a ‘Templum misericordiae . . . instituted by the law of mercy upon devotion’ and first devised by ‘almighty God himself the chief Author of mercy’ (189r). The last sanctuary privileges were abolished in the first year of James’s reign (Pulton, De pace, 190v). Milsom, Historical Foundations, p. 83. Daniel’s claim that England’s monarchs had established these judicial sanctuaries has a counterpart in Milsom’s laconic observation that ‘the king’s divine duty to provide channels for an absolute justice turned into divine right’ (p. 83). Milsom, Historical Foundations, pp. 82–3. Baker, English Legal History, p. 119. Baker further notes that Chancery procedure ‘clearly owed something to the inquisitorial procedure of the canonists, and may have been modelled on the canonical denunciatio evangelica’ (ibid.). And, of course, More, who while Chancellor wore a monk’s hairshirt under his splendid judicial robes, although not a churchman, became a saint. Plucknett, Common Law, p. 685; Lambarde implies much the same (Archeion, p. 37). On the canon law sources of English equity, see Berman, Faith and Order, pp. 78–81. Hake, Epieikeia, pp. 2–3.

Notes

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80. Holdsworth, English Law, 4:279–80. 81. Table Talk of John Selden, ed. Frederick Pollock (London: Selden Society, 1927), p. 43. 82. Lambarde, Archeion, pp. 65–7; Cromartie, ‘Constitutionalist Revolution,’ 76–120; Holdsworth, English Law, 4:284. 83. Holdsworth, English Law, 4:279, 217, 236. 84. Hake, Epieikeia, p. 9; Hake is citing Plowden’s Reports. 85. Thomas Babington Maccauly, Macaulay’s History of England, 4 vols., intro. Douglas Jerrold, Everyman’s Library (London: Dent, 1906), 1:67. Kevin Sharpe notes in current usage ‘star chamber’ remains more or less synonymous with ‘secret, arbitrary[,] and tyrannous legal procedures, disregard of human rights[,] and cruel punishments’ (Charles I, p. 666). 86. These tributes are quoted in Holdsworth, English Law, 1:507–8. See also Holdsworth, English Law, 5:189; Sharpe, Charles I, p. 666; G.R. Elton, Star Chamber Stories (London: Methuen, 1958), p. 12; Baker, English Legal History, p. 137; Barnes, ‘Sophistication,’ pp. 316–26; Guy, Tudor England, pp. 89, 397; Tanner notes that not until after the Jacobean period does the court ‘appear to have concerned itself in any very provocative way with matters of religion’ (Constitutional Documents of the Reign of James I [Cambridge: At the University Press, 1930], pp. 140–1). 87. Holdsworth terms Hudson’s study as ‘by far the most important’ contemporary work on the subject (English Law 5:164). Hudson, a barrister and bencher at Gray’s Inn from 1606 until his death in 1635, practiced exclusively in the Star Chamber. The Treatise, which was not published until 1792, was written sometime before 1621, when Hudson presented the manuscript to John Williams on his accession to the great seal (Sharpe, Charles I, p. 667; Thomas G. Barnes, ‘Mr. Hudson’s Star Chamber,’ Tudor Rule and Revolution, ed. Delloyd Guth and John McKenna [Cambridge: Cambridge University Press, 1982], pp. 285–308). 88. Sharpe, Charles I, p. 669. 89. Hudson, Star Chamber, p. 17. 90. Hudson, Star Chamber, pp. 62–4; Holdsworth, English Law, 5:188–9. None of the prerogative courts could touch either life or freehold. Nor did Star Chamber use torture (Elton, Tudor Constitution, p. 172). While the Privy Council could have a suspect racked, torture was not part of the English justice system. 91. Hudson, Star Chamber, pp. 35–6. 92. Hudson, Star Chamber, p. 35. 93. Hudson, Star Chamber, p. 130. 94. Hudson, Star Chamber, p. 129. This may be the same incident Crompton describes in more detail in Star-Chamber Cases, where ‘a woman great with child, which was suspected of incontinency without cause, was commanded to be whipped in Bridewell, London, by the Masters there, and because she fell to travail before her time, &c. they were for this fined in this Court at a great sum,’ part of which went to the poor woman (p. 19). One thinks of the lecherous beadle who whips the whore in King Lear. 95. Modern studies of Star Chamber confirm this picture: see Guy, The Court of Star Chamber, pp. 58–60; Barnes, ‘Sophistication,’ pp. 316–27. 96. See Debora Shuger, ‘Subversive Fathers and Suffering Subjects:

166

97.

98.

99.

100.

101. 102.

103. 104.

105. 106.

Notes Shakespeare and Christianity,’ Religion, Literature, and Politics in PostReformation England, 1540–1688, ed. Donna Hamilton and Richard Strier (Cambridge: Cambridge University Press, 1996), pp. 46–69; Helen White, Social Criticism in Popular Religious Literature of the Sixteenth Century (New York: Octagon, 1973); Andrew McRae, God Speed the Plough: The Representation of Agrarian England, 1500–1600, Past and Present Publications (Cambridge: Cambridge University Press, 1996). Modern scholarship has by and large corroborated this assessment; see Barnes, ‘Sophistication,’ pp. 316–26. On Chancery’s recognition and enforcement of women’s proprietary rights (rights unknown to common law), see Maria Cioni, ‘The Elizabethan Chancery and Women’s Rights,’ Tudor Rule and Revolution, ed. Delloyd Guth and John McKenna (Cambridge: Cambridge University Press, 1982), pp. 159–82. Early modern writers on Chancery do not mention gender equity, but it is not without relevance to Shakespeare’s play, in which ensuring that women receive justice matters very much. W.J. Jones, The Elizabethan Court of Chancery (Oxford: Clarendon, 1967), pp. 422, 426; Lambarde, Archeion, p. 51; Paul Vinogradoff, The Collected Papers of Paul Vinogradoff, 2 vols., ed. H.A.L. Fisher (Oxford: Clarendon, 1928), 2:198–201; Holdsworth, English Law, 1:456, 5:294–6. On Star Chamber’s jurisdiction over swindles and double-dealing not actionable at common law (crimina stellionata), see John Hawarde, Les Reportes del Cases in Camera Stellata 1593 to 1609, ed. W.P. Baildon (London, 1894), pp. 119–24. Holdsworth, English Law, 5:216, 287; Knafla, Law and Politics, p. 324; Milsom, Historical Foundations, p. 81. So Ellesmere describes the office of the Chancellor as being ‘to correct men’s consciences for frauds, breach of trusts, wrongs, and oppressions’ (quoted in Holdsworth, English Law, 5:231). Jones, Chancery, p. 429; William Fulbecke, A Parallele or Conference of the Civil Law, the Canon Law, and the Common Law of this Realme of England (London, 1618), part 2, pp. 23–4. Lambarde, Archeion, pp. 51–3. On the role of paid informants (the technical term, which Whetstone uses, is ‘promoters‘) in the Elizabethan justice system, see Cosin, An Apology, part 2, pp. 35–6, 39–41; Dean, Law-Making and Society, pp. 204–5. Hudson, Star Chamber, pp. 9–10. This is the same position King Euarchus takes in the great trial scene that concludes Sidney’s Arcadia when he refuses to pardon the two young men he has just discovered to be his son and nephew. See Shuger, ‘Castigating Livy,’ pp. 532, 540. Aquinas, Law, Morality, and Politics, pp. 67–9; Summa theologiae 1.2.96.2–3. In Whetstone, there is no figure corresponding to Mariana and hence no bedtrick. Promos deflowers Cassandra, to recompense which the King orders him to marry her; once wed, she embraces the role of good and loyal wife, earnestly entreating a royal pardon for her miscreant spouse.

Notes

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Chapter 4 1. Ronald Marchant, The Church under the Law: Justice, Administration and Discipline in the Diocese of York, 1560–1640 (Cambridge: At the University Press, 1969), p. 4; Ingram, Church Courts, pp. 3, 43, 53; Laura Lunger Knoppers, ‘(En)gendering Shame: Measure for Measure and the Spectacles of Power,’ English Literary Renaissance 23 (1993): 452–7; Pio Fedele, Lo Spirito del Diritto Canonico (Padua: Cedam, 1962), pp. 144, 794n; Michele Lega, Praelectiones in textum canonici, De delictis et poenis (Rome: Typis Vaticanis, 1910), pp. 17–21. 2. Cosin, Apology, part 2, pp. 2–3; part 3, p. 41. 3. Richard Helmholz, ‘The Privilege and the Ius Commune: The Middle Ages to the Seventeenth Century,’ The Privilege against Self-Incrimination: Its Origins and Development, ed. Richard Helmholz et al. (Chicago: University of Chicago Press, 1997), p. 216 n70. The manuscript in question is BL, Harl. MS 358, fol. 224. 4. Edward Coke, The Second Part of the Institutes of the Laws of England [c. 1628; first published 1641], (London, 1797), p. 622. 5. Cosin, Apology, part 2, pp. 41–5. Coke and Cosin stand at opposite ends of ecclesio-political spectrum; the former, in defining the jurisdiction of the church courts (specifically, High Commission) as concerned only with ‘the spiritual inner man,’ attempts to limit their scope, which is the opposite of Cosin’s aim. Whereas ordinary church courts ‘had only the power to impose spiritual penalties, excommunication and public penance, on persons they convicted,’ the high commissioners could fine, imprison, inflict corporal punishment. The debate is over the powers specific to High Commission, not over the spiritual jurisdiction of the church courts. My point is simply that both Coke and Cosin associate Christian justice with penitential. 6. Ralph Houlbrooke, The Church Courts and the People During the English Reformation, 1520–1570 (Oxford: Oxford University Press, 1979), p. 55. 7. Aquinas, Summa theologiae 1.2.96.4 (St Thomas is quoting Augustine’s ‘lex esse non videtur, quae iusta non fuerit,’ a view King James also accepts, see Political Writings, p. 210). 8. Aquinas, Summa theologiae 1.2.96.2 (this too is a quotation from St Augustine). 9. The ius commune refers to that combination of civil and canon law dominating continental European jurisprudence before the modern era – and which, in post-Reformation England, formed the basis of ecclesiastical law. See Helmholz, ‘The Privilege,’ pp. 19, 209n1. 10. Ibid., pp. 21, 27. 11. It may be worth noting that in early modern England, nemo tenetur was invoked, although not by the same people, to argue against judicial invasion of both religious and sexual privacy. Thus on the last day of the Hampton Court Conference, which James convened in January 1604 to find out what his bishops and their Puritan opponents had to say for themselves, debate began on the implications of nemo tenetur, the Puritans arguing that it prohibited use of the ex officio oath to compel nonconformist ministers to give self-incriminating evidence. In response, James

168

12.

13.

14. 15.

16. 17.

Notes likewise enlists nemo tenetur, but this time to denounce the ‘indiscreet proceeding’ of Scotland’s Puritan kirk, ‘where the lying with a wench (though ’t were done privately, and known or scarce suspected by two or three persons before) was made openly known to the King, to the Queen, to the Prince, to many hundreds in the court, by bringing the parties to the stool of repentance – and yet perhaps [it] be but a suspicion only’ (William Barlow, The Summe and Substance of the Conference, ed. William Costello and Charles Keenan [Gainesville, Fla.: Scholars’ Facsimiles and Reprints, 1965], p. 93). So in 1584 Whitgift defends High Commission’s use of the ex officio oath in cases of clerical noncomformity on the grounds that while ‘it is against law, reason, and charity for a man to accuse himself, quia nemo tenetur seipsum prodere, aut propriam turpitudinem revelare . . . Ad haec, in istis articulis turpitudo non inquiritur aut flagitium, sed excessus et errata clericorum circa publicam functionem ministerii [because no one is obliged to betray himself or disclose his own turpitude . . . But these articles do not ask about turpitude or shameful acts but only about the excesses and errors of clergy with regard to the public performance of their ministry]’ (quoted in Tanner, Constitutional Documents of the Reign of James I, p. 170 [translation mine]; see also Whitgift, Works 3:604). With respect to Elizabethan canon law, the quite complicated rules governing what counted as private and under what circumstances are summarized in Cosin’s Apology 3.41–52. Canon 113 of the Canons of 1603 (1604) – the only one of the 141 canons left unchanged in the revised Anglican canons of 1969 – reaffirms (with Protestant modifications) the secrecy of the confessional. After stating that the minister should cite parishioners ‘thought to require due reformation’ to the ecclesiastical authorities, it appends a crucial qualification: ‘Provided always that if any man confess [confiteatur] his secret and hidden sins to the minister, for the unburdening of his conscience, and to receive spiritual consolation and ease of mind from him; we do not any way bind the said minister . . . but do straitly charge and admonish him that he do not at any time reveal and make known to any person whatsoever any crime or offence so committed to his trust and secrecy, (except they be such crimes as by the laws of this realm his own life may be called into question for concealing the same), under pain of irregularity’ (The Anglican Canons 1529–1947, ed. Gerald Bray, The Church of England Record Society [Suffolk: The Boydell Press, 1998], pp. 411–13). (The final parenthetical exception concerns high treason.) This paragraph is based on Helmholz, ‘The Privilege,’ pp. 26–9. So Maus’s comment that ‘the genitals [the specific reference is to Jonson’s Volpone and Epicoene] . . . become ‘that within which passeth show.’ They are a metonymy for a private truth constituted . . . as the unstable limit beyond which an intense, imperfect scrutiny, whether theatrical or juridical, cannot proceed’ (Inwardness and Theater, pp. 167–8). Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983), pp. 185–6. Sir Frederick Pollock and Frederic William Maitland, The History of English Law before the Time of Edward I, intro. S.F.C. Milsom, 2 vols., 2nd edition (Cambridge: At the University Press, 1968), 2:474. Even with respect to

Notes

18.

19.

20. 21. 22.

23.

24.

25.

26.

169

crimes that had been committed, common law was often reluctant to go behind the visible facts. Into the sixteenth century, the law made no distinction between murder and manslaughter (Plucknett, Common Law, pp. 445–6); the medieval principle of civil liability, which made a person ‘liable for all the harm which he has inflicted upon another by his acts . . . whether that harm has been inflicted intentionally, negligently, or accidently,’ remained in force throughout the early modern period (Holdsworth, English Law 8:446–7). Ibid. See also St German, Doctor and Student, p. 230. Pollock and Maitland are writing on medieval law. At least by the sixteenth century, English common law had developed clear exceptions to this rule, the law of treason, which explicitly criminalized intent, being the most obvious (Holdsworth, English Law 8:311–12; Berman, Law and Revolution, p. 187; Cosin, Apology, 3.42). Bacon mentions some rather more puzzling and partial exceptions in his The Elements of the Common Laws of England (1630): thus, it was a lesser offense to kill someone accidentally than intentionally, but ‘if a man be hurt or maimed . . . though it be done against the party’s mind and will,’ the doer ‘shall be punished in the law as deeply as if he had done it of malice’; or, if A meant to poison B, but by mistake poisoned C, this counted as an intentional killing, but if C did not die, or if B realized the drink was poisoned and notified the authories, it is not clear that A could be charged with any crime (The English Experience 164 [Amsterdam: Theatrum Orbis Terrarum, 1969], 36–7, 65). Plowden’s Reports, 1:259a. This case also seems to lie behind the gravediggers’ squabble in Hamlet over whether Ophelia should have been judged a suicide. Cosin, Apology, 3.50. Kent, ‘Attitudes,’ p. 47. Helmholz, The Spirit, p. 198; Berman, Law and Revolution, pp. 188–9; Pollock and Maitland, English Law before Edward I, 2:476; Aquinas, On Law, Morality, and Politics, pp. 105–6. Here and in what follows I am taking penitential justice in broad sense to include not only the external forum of the church courts but also the extra-judical fora of conscience, the confessional, and divine chastisement. This also goes back to the Middle Ages; see Pennington, The Prince and the Law, pp. 18, 23–4. For the late medieval (mis)interpretation of Roman private law as the ‘lex conscientiae,’ see Ullmann, The Medieval Idea of Law, p. 58. Crawford and Quinn, Christian Foundations, p. 185. So James writes in Basilicon Doron that the prince must do justice ‘only for love to justice, and not for satisfying any particular passions of yours under color thereof; otherwise, how justly that ever the offender deserve it, ye are guilty of murder before God. For ye must consider that God ever looketh to your inward intention in all your actions’ (Political Writings, p. 22). Helmholz, The Spirit, p. 198; Berman, Law and Revolution, p. 189; Fedele, Lo Spirito, pp. 137–8, 155–6, 198, 793–94n, 821, 828–31. So according to the early seventeenth-century canonist Joannis Valerus [Juan Valero], ‘there is very little difference between the forum of canon law and the

170

27.

28.

29.

30.

31. 32.

33.

Notes penitential or spiritual forum, since both aim primarily at the salvation of souls (vix differunt aut distinguuntur forus canonicus et forus poenitentialis et animae; quia uterque et intendit in primis salvare animarum)’ (Differentiae inter utrumque forum, iudiciale videlicet et conscientiae [Venice, 1645], p. 2 [my translation]; quoted in Fedele, Lo Spirito, p. 156n. N.W. Bawcutt makes the perceptive and important point that the Duke first learns of Angelo’s hypocrisy when he overhears Isabella telling Claudio about the deputy’s proposal, and it is only then that the Duke intervenes. Hence, there is no evidence that his earlier efforts to prepare Claudio for death should be taken at anything but face value (‘“He Who the Sword of Heaven Will Bear,”’ pp. 95–6). My discussion of Barnadine overlaps at several points with David Lindley’s fine essay, ‘The Stubborness of Barnadine: Justice and Mercy in Measure for Measure,’ which I, alas, discovered too late to use in writing this chapter (special theme section, ‘The Law and Shakespeare,’ ed. B.J. Sokol, Shakespeare Yearbook 7 [1996]:333–52). But see Stephen Greenblatt, ‘Martial Law in the Land of Cockaigne,’ Shakespearean Negotiations (Berkeley: University of California Press, 1988), pp. 129–42, on the joint participation of state and church in creating and shaping spiritual anxiety. James, The True Law of Free Monarchies, Political Writings, p. 65. Preaching at James’s coronation, Bishop Bilson similarly describes princes as ‘fathers by God’s law, that have or should have fatherly care over us, whether it be to aid us in the things of this life, as masters and teachers; or to guide us the true way to heaven, as pastors and ministers’ (Thomas Bilson, A Sermon Preached at Westminster before the King and Queenes Majesties, at their Coronations [London, 1603], B5r-B5v; quoted in Stevenson, Achievement, p. 160n). James, Political Writings, p. 52. Ibid., p. 237. James goes on to restrict his priestly function to ordering and overseeing the church within his kingdom; he does not suggest that a king might hear confession or perform clergy’s sacramental offices. Elizabeth had made the same claim, with the same restrictions, in 1570, maintaining that governance of the church is ‘an office and charge as we think properly due to all Christian monarchs . . . whereby they only differ from pagan princes, that only take care of their subjects’ bodies without respect to the salvation of their souls, or of the life hereafter to come’ (Queen Elizabeth’s Defence of her Proceedings in Church and State, ed. William Edward Collins [London: SPCK, 1958], pp. 45–6). The work, written during the Northern Rebellion, seems not to have been published until 1740 (ibid., pp. 34–5). On Elizabeth’s claim to jurisdiction over souls, see John Guy, ‘The Henrician Age,’ The Varieties of British Political Thought, 1500–1800, ed. J.G.A. Pocock (Cambridge: Cambridge University Press, 1993), p. 42. Barlow, The Sum and Substance, pp. 93–4, 84. The sincerity of all this is known to God alone, but Barlow must have thought it credible – thought that it would be found credible – since irony, for all its pleasures, is rarely thought worth spending the rest of one’s career in a Northumbrian vicarage.

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34. Aquinas, On Politics and Ethics, pp. 26–8; see also Summa theologica 2.2.147.3. The same viewpoint undergirds Cardinal Allen’s savage 1588 denunciation of the Tudor royal supremacy: Henry VIII and Elizabeth I have ‘not only in their hearts said against God & his annointed, Let us shake off their yoke and break their bonds asunder; But openly and boldly both said and made themselves heads of the Church & spirituality, as well now of souls, as they were before of the bodies . . . yet these stubborn Nimrods that aspire so far and would overreach the Highest, cannot, nor shall not, escape God’s ire and furious wrath, neither in this life nor the next’ (An Admonition to the Nobility, English Recusant Literature 74 [Yorkshire: Scolar, 1971], p. 29). 35. St German, Doctor and Student, p. 327. So too in 1540 Archbishop Cranmer asserts that God has given ‘all Christian princes . . . the whole cure of all their subjects, as well concerning the administration of God’s word for the cure of souls, as concerning the ministration of things political and civil governance’ (quoted in Diarmaid MacCulloch, Thomas Cranmer: A Life [New Haven: Yale University Press, 1996], p. 278). In one of his late sermons, Donne similarly affirms that ‘the king is king of men: not of bodies only, but of souls too’ (The Sermons of John Donne, 10 vols., ed. George Potter and Evelyn Simpson [Berkeley: University of California Press, 1953–62], 8:115). 36. James, Political Writings, pp. 99, 95, 93. 37. Ibid., pp. 128–9. ‘Custodes utriusque Tabulae’ refers to kings’ role as guardians of both Tables of the Ten Commendments, that is, the commandments of the first Table concerning faith as well as those of the second concerning morals. 38. St German, Doctor and Student, p. 327. 39. James, Political Writings, p. 129. 40. The edition was not in Spanish, but simply a copy of the 1632 folio expurgated by Father William Sankey, S.J. in the mid-seventeenth century to render it suitable for use in the English College at Valladolid; Father Sankey regularly, if not consistently, inked out bawdy and anti-Catholic bits, but the censorship is fairly light, except regarding Measure, the whole of which was ‘neatly cut out with a sharp instrument’ (Roland Frye, Shakespeare and Christian Doctrine [Princeton: Princeton University Press, 1963], pp. 276–7, 291). My thanks to Rich McCoy and Al Braunmuller for providing me with this reference. 41. Berman, Law and Revolution, p. 166. 42. St Augustine, The Political Writings, ed. Henry Paolucci (Washington, DC: Regnery Gateway, 1962), pp. 267–9; Augustine, Epistolae, vol. 33 of Patrologia Latina, 221 vols., ed. J.P. Migne (Paris, 1844–1900), col. 669–70 (letter 150). Augustine’s claim here seems to target specifically Plato’s argument in the Republic 420b that the ‘happiness of the city as a whole’ is distinct from and superior to the happiness of the individuals and groups within it (Collected Dialogues, p. 662). Aristotle, it should be added, similarly objects to Platonic organicism in the Politics 2.5.1264b15–25. 43. Augustine, Political Writings, pp. 267–8, 271. 44. Fedele, Lo Spirito, p. 144. 45. James, A Meditation, in Political Writings, p. 241; see also p. 249.

172 46. 47. 48. 49.

50. 51.

52. 53.

54.

55. 56.

57.

58.

Notes Hake, Epieikeia, pp. 2–3. Hudson, Star Chamber, p. 22. Ingram, Church Courts, pp. 294–5. Hubert Hall, ‘Some Elizabethan Penances in the Diocese of Ely,’ 263–77, Transactions of the Royal Historical Society, 3rd ser., 1 (1907): 268. Quoted in Hayne, ‘Performing Social Practice,’ p. 10. Milsom, Historical Foundations, pp. 84–5. Knafla, Law and Politics, p. 324; Jones, Chancery, p. 424. Quite striking evidence for the penitential character of Chancery is the fact that to describe the specifics of its equity jurisdiction, St German drew on ‘two manuals of cases of conscience which were intended primarily for the use of confessors: the Summa Rosella of Baptista Trovomara and the Summa Angelica of Angelus Carletus’ (J.L. Barton, intro. Doctor and Student, p. xxviii). D.E.C. Yale, ‘Introduction,’ Lord Nottingham’s Chancery Cases, 2 vols., ed. D.E.C. Yale (London: Selden Society, 1957), 1:xxxix-xl. So Milsom notes that in the church courts ‘lay restitution could properly be made the condition upon which spiritual penalties would be mitigated or revoked,’ and that this was also ‘the modus operandi of the equitable jurisdiction of the court of chancery, only with a prison instead of a penance’ (Historical Foundations, p. 14). Baker, English Legal History, p. 123. Some of the punishments imposed by the post-Reformation equity courts look almost like penances: in a 1554 Requests slander case, the defendent was ordered to ‘pay 4 libri to the plaintiff and to ask him forgiveness publicly’ (Caesar, The Ancient State, p. 168); the verdict in a 1594 Star Chamber perjury case required the plaintiff to make ‘restoration of his [the defendant’s] good name’ by ‘confession in Lincoln’s Inn or in this Court’ (Hawarde, Les Reportes, pp. 8–9); the defendant in a 1607 Star Chamber libel case, who had ‘ministered 80 interrogatories (four yards of parchment, by the measure of the Lord Chancellor) against the plaintiff’ – all which turned out to be irrelevant – was fined, ordered to pay damages, imprisoned, bound over, and required, in the public market held during the next general assizes at Exeter, to ‘be set in some eminent place, and wear about his neck for a tippet the four yards of interrogatories and confess his fault’ (J.H. Baker and S.F.C. Milsom, Sources of English Legal History: Private Law to 1750 [St Paul, Minn.: Butterworth Legal Publishers, 1986], pp. 648–9). Yale, Lord Nottingham, 1:xl–xliii. It may be worth noting that in The Tempest, Shakespeare’s last play, Duke Prospero administers the same penitential justice; so he tells Ariel that, although ‘struck to th’ quick’ with the ‘high wrongs’ done to him by his enemies – enemies now in his power – yet ‘The rarer action is/ In virtue than in vengeance. They being penitent / The sole drift of my purpose doth extend / Not a frown further’ (V.i.25–30). On the use of the term ‘Anglican,’ see Chapter 1, n. 7. The literature on the Anglican-Puritan question is immense, but particularly good is Peter Lake’s ‘Calvinism and the English Church 1570–1635,’ Past and Present 114 (1987): 32–76. For the penal model, see Bucer, De regno, ed. Pauck, pp. 281, 381; Arthur Dent, The Plain Man’s Pathway, pp. 231–2; William Ames, Conscience with

Notes

59.

60. 61.

62.

63. 64.

65. 66. 67. 68.

69. 70. 71. 72. 73. 74. 75.

173

the Power and Cases Thereof (np., 1639; rpt. Amsterdam: Theatrum Orbis Terrarum, 1975), p. 62. R[ichard] B[ernard], The Isle of Man: or, The Legal Proceeding in Man-Shire against Sin, 7th edition (London, 1630; rpt. Amsterdam: Theatrum Orbis Terrarum, 1976), pp. 76–80. Baxter, Puritan Politics, p. 112. Ibid., Puritan Politics, pp. 75, 99–100, 112. Baxter lists the sins that would incapacitate a man to vote as ‘blasphemy, idolatry, persuading to idolatry, murder, manstealing, incest, sodomy, adultery; presumptuous sinning and obstinate refusing to obey magistrate, priest, or parent; in case of gluttony, drunkenness and the like; and all such as would not seek the Lord; all wizards and that turn after wizards; and more such like’ (101). Quoted in Knappen, Tudor Puritanism, p. 101. Calvin holds that ecclesiastical discipline serves three ends, only the last of which is ‘that the sinner . . . repent of his turpitude.’ The ends to which Calvin gives priority are, first, ‘that God may not be insulted by the name of Christians being given to those who lead shameful and flagitious lives’ and, second, ‘that the good may not, as usually happens, be corrupted by constant communication with the wicked’ (Institutes of the Christian Religion [1559], trans. Henry Beveridge [Grand Rapids, MI: Eerdmans, 1989], 4.12.5). William Ames, Conscience, p. 62. The work was originally published in Latin in 1630. Dent, Plain Man’s Pathway, pp. 186–7, 296–7; Dent is echoing George Gifford, A Brief Discourse of Certain Points of the Religion Which Is Among the Common Sort of Christians, Which May Be Termed the ‘Country Divinity’ (London, 1582), pp. 42, 47–8, 71–2. Stubbes, Anatomy, p. 99. Dent, Plain Man’s Pathway, p. 35. Whitgift, Works, 1:320, 189. Ibid., 1:328–31. Whitgift’s answer here is mostly an extended quotation from Origen’s homilies on Leviticus (which the edition Whitgift used attributed to St Cyril). Lake, ‘Calvinism and the English Church,’ p. 39. Whitgift, Works, 1:384. Hooker, Laws, pref.3.11; 3.1.7–8; 5.49.2. Robert Skinner, A Sermon Preached Before the King at Whitehall (London, 1634), pp. 24–5. Fuller, The Holy State, pp. 399–401. Ibid., p. 89. Cynthia Herrup, ‘Law and Morality in Seventeenth-Century England,’ Past and Present 106 (1985): 106. Pulton’s De pace suggests that the common law courts recognized this discretionary authority; citing Fitzherbert and the Assize records, Pulton observes, ‘If any person be indicted for stealing of goods above the value of twelve pence, and arraigned thereupon, yet the jury that passeth upon his arraignment may give a special verdict and say that the goods did not exceed the value of eight pence, or ten pence, etc. and then that offence shall be taken for petit larceny only, and the offender shall be punished by imprisonment or etc. according to the justice’s discretion’ (129r).

174

Notes

76. Herrup, ‘Law and Morality,’ pp. 110–12. 77. [Arthur Golding], A Brief Discourse of the Late Murther of Master George Sanders, a Worshipful Citizen of London (London, 1577), B4r-B6v. 78. Herrup, ‘Law and Morality,’ p. 110. 79. Ibid., pp. 106, 113. 80. Ibid., 118–19, 121. 81. Peter Lake, ‘Deeds against Nature,’ p. 275; J.A. Sharpe, ‘“Last Dying Speeches”: Religion, Ideology and Public Execution in SeventeenthCentury England,’ Past and Present 107 (1985): 150. Since the English courts did not use torture, ‘confession’ in an English legal context has only a penitential sense (confession of sin leading to reconciliation); it has nothing to do with Roman law confession extracted by torture (confession of guilt leading to conviction). The Elizabethan Privy Council, which on occasion did have prisoners charged with treason tortured into revealing their accomplices, was not a court. 82. The manner of the death and execution of Arnold Cosbie, for murthering the Lord Boorke (London, 1591), reprinted in J.P. Collier, ed. Illustrations of Early English Popular Literature, 2 vols. (London, 1863; repr. edition, New York: Benjamin Blom, 1966), 1:17. 83. Henry Goodcole, A True Declaration of the Happy Conversion, Contrition, and Christian Preparation of Francis Robinson, Gentleman (London, 1618), A2r, B1r; see also Sharpe, ‘“Last Dying Speeches,”’ pp. 154, 156; Lake, ‘Deeds against Nature,’ p. 274. 84. Lake, ‘Deeds against Nature,’ p. 274. 85. Golding, A Brief Discourse, A8r; anon., A true report of the horrible Murther, which was committed in the house of Sir Jerome Bowes (London, 1607), B2vB2r. 86. The phrase ‘spectacle of the scaffold’ is the title of the second chapter of Michel Foucault’s Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1979), the chapter on the public executions of the ancien régime. Perhaps because Foucault concentrates on the late seventeenth and eighteenth centuries and on France, his account of this spectacle is strikingly different from those found in Tudor–Stuart materials, a discrepancy Herrup notes (‘Law and Morality,’ pp. 121–2). 87. Lake, ‘Deeds against Nature,’ pp. 273–4. 88. Goodcole, A True Declaration, sig. C3v; see Sharpe, ‘“Last Dying Speeches,”’ p. 152. Sharpe’s wry comment that the authorities spared no effort to bring ‘the lost sheep back to the flock, even if they were shortly to be transformed into mutton’ (160), implying, as it does, that such effort was either insincere or wasted, is a bit unfair. The point of these efforts was not to reform the condemned, nor to make them better citizens, but to restore them to the heavenly flock on the far side of muttonhood. 89. Sharpe, ‘“Last Dying Speeches,”’ pp. 155–6. The fact that repentance did not mitigate punishment means that there would have been little inducement to fake it. 90. Ibid., pp. 156–60. 91. For the exact opposite view, see Craig Bernthal, ‘Staging Justice: James I and the Trial Scenes of Measure for Measure,’ Studies in English Literature 32 (1992): 262–3.

Notes

175

92. Lake, ‘Deeds against Nature,’ p. 275. 93. On these royal pardons, see Bernthal, ‘Staging Justice,’ pp. 252–3; Wilbur Dunkel, ‘Law and Equity in Measure for Measure,’ Shakespeare Quarterly 13 (1962): 275. 94. Roland Usher, The Reconstruction of the English Church, 2 vols. (New York: D. Appleton, 1910), 1:7. 95. Milbank, Theology and Social Theory, p. 407. 96. Nor, perhaps, to those of Tudor–Stuart Christianity, since Elizabeth Pope reports that none of the exegetes, homilists, or theologians she surveyed ‘advocates showing leniency to more serious or hardened criminals’ (‘The Renaissance Background,’ p. 75). 97. Milbank, Theology and Social Theory, p. 381. Pope made a similar point years ago in the conclusion to her ‘The Renaissance Background’ (80). 98. This may be a less telling objection than one might think, since, as G.K. Chesterton wonderfully points out, scrappy, miscellaneous evidence has more probative value precisely by being scrappy and miscellaneous, as, for example, ‘a man may well be less convinced of a philosophy from four books, than from one book, one battle, one landscape, and one old friend. The very fact that the things are of different kinds increases the importance of the fact that they all point to one conclusion’ (Orthodoxy [New York: Image Books, 1959], p. 143). 99. St Augustine, City of God 5.17 (p. 207). 100. Ibid., 19.27 (pp. 892–3). 101. Milbank, Theology and Social Theory, p. 409, 411. Milbank is summarizing St Augustine here, but it would take few changes to make this a description of the Duke’s actions. For Augustine too ‘the commonwealth is, ideally, a pastoral reality, its ruler a director of souls’ (Rowan Williams, ‘Politics and the Soul: A Reading of the City of God,’ Milltown Studies 19/20 [1987]:65). 102. St Augustine, Epistolae, letter 136, col. 545. 103. St Augustine, Political Writings, pp. 173–5; Epistolae, letter 138, cols. 529–30. The quotations from Augustine’s letters supplement and modify the passages translated in Political Writings with my own translations from the Patrologia. 104. St Augustine, Political Writings, pp. 175–6, 178, 246. 105. St Augustine, Political Writings p. 242; Epistolae, letter 100, col. 366. 106. St Augustine, Political Writings, pp. 245–6; Epistolae, letter 133, cols. 508–9. 107. St Augustine, Epistolae, letter 153, col. 654; see also letters 100 and 133 (cols. 366, 509). 108. St Augustine, Political Writings, p. 178; Epistolae, letter 138, col. 531. 109. St Augustine, Political Writings, p. 256; Epistolae, letter 153, cols. 660–1. 110. Not surprisingly, most of Augustine’s letters on this subject belong to the same period as his writings against the proto-Puritan Donatists (c. 410–15). (The association between the two groups goes back to the seventeenth century; thus, as we have seen, Thomas Fuller’s chapter on Puritanism in The Holy State and the Profane State is titled ‘The Rigid Donatists.’) 111. See, for example, letters 136–7, 152–3 (Patrologia Latina 33:514–25, 652–85).

176

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112. The entire italicized passage is a pastiche of quotations from and paraphrasings of the following sources: Zia Jaffrey, ‘Desmond Tutu,’ Progressive 62.2 (Feb. 1998): 18–21 (a transcript of an interview between the author and the Archbishop); L. Gregory Jones, ‘“How Much Truth Can We Take?”’ Christianity Today 42.2 (9 February 1998): 19–22, 24; Susan VanZanten Gallagher, ‘Cry with a Beloved Country: Restoring Human Dignity to the Victims of Apartheid,’ Christianity Today 42.2 (Feb. 9, 1998): 23; Desmond Tutu, ‘Between a Nightmare and a Dream,’ Christianity Today 42.2 (9 February, 1998): 25–6; John W. de Gruchy, ‘The Transfiguration of Politics,’ Archbishop Tutu: Prophetic Witness in South Africa, ed. Leonard Hulley, Louise Kretzschmar, and Luke Lungile Pato (Cape Town: Human & Rousseau, 1996), pp. 49–55; Antjie Krog, Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South Africa (South Africa: Random House, 1998). The final long eyewitness account of the Madikizela-Mandela trial comes from pp. 338–9 of this amazing book.

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Index absolutism, 56–8, 69, 75–6, 80–1 and equity, 79–81, 84, 88 Admonition to Parliament, 10 Allen, J. W., 148, 154, 161 Allen, Cardinal William, 170–1 Ambrose, St, 156 Ames, William, 10, 120, 124, 172 Anglican–Puritan debates, 117–25, 129–32 Aquinas, St Thomas, 18, 33, 55, 78–9, 99, 105, 111, 131, 137, 147–8, 156, 169 Aristotle, 3, 5, 12, 18, 41–2, 46, 55–6, 60, 79, 171 Augustine, St, 7, 124, 134, 149, 167 City of God, 18, 52, 67, 70–1, 134–5 Letters, 113–14, 135–7 Bacon, Francis, 3, 34, 42, 56, 59–60, 81–2, 85, 90, 142, 169 Baker, J. H., 116, 162–4 Baldus, 75 Bancroft, Richard, Archbishop of Canterbury, 143 Barlow, William, Bishop, 110–11, 168 Barnes, Robert, 44 Barnes, Thomas, 158, 162–3, 166 Bawcutt, N.W., 156, 170 Baxter, Richard, 18, 43, 48, 58, 62, 119–20, 131 Bayly, Lewis (Bishop), 143 Bede, The Venerable, 147 bedtrick see dolus bonus Bennett, J. W., 141, 154, 161 Berman, Harold, 112–13, 162–4, 168–9 Bernard, Richard, 118 Bernthal, Craig, 174–5 Bilson, Thomas, Bishop, 170 Bloch, Marc, 154 Bodin, Jean, 78 Bond, John, 33 Bouwsma, W. J., 153

Bracton, Henry de, 72–3, 76, 141 Bradbrook, Muriel, 156 Bucer, Martin, 11, 18, 21–33, 36, 42–3, 47–8, 52, 58, 87, 118–20, 131–4, 172 Burgess, Glen, 142, 154 Caesar, Sir Julius, 162 Calvin, Jean, 17, 124, 144, 173 Camden, William, 56 Canning, J. P., 153 canon law, 26–7, 30, 88, 93–4, 102–3, 106–7 Carleton, Dudley, 56 Cartwright, Thomas, 10, 79, 122 Casaubon, Isaac, 19 Case, John, 86 Chamberlain, John, 56 Chancery, Court of see equity courts Charles I, King of England and Scotland, 57, 73, 124 Chesterton, G. K., 175 Chillingworth, William, 5–6 Christian social justice, 51–4, 74–6, 92–3, 107 and lex talionis, 48–50 in Measure for Measure, 97–8, 101 in Promos, 95–8, 101, 105 and Star Chamber, 92–7, 101 church courts, 32, 102–3, 106, 109, 115–18, 122; see also penitential justice; sexual regulation and equity, 88 Cicero, Marcus Tullius, 11, 18–20, 22, 27, 75–6, 92, 99, 149 Cioni, Maria, 166 Cobham Plot, 131 Coke, Sir Edward, 3, 42, 58, 84, 90, 102, 108, 153, 162 Collinson, Patrick, 143–4 common law, 21, 30, 33–4, 59–60, 77, 80, 82–5, 89–94, 114, 116, 125–7

189

190

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common law – continued juries, 86, 88, 106, 126 confession, 2, 46–7, 101–6, 108, 113, 118, 168 and common law, 127 and equity courts, 116–17, 130, 172 and murder pamphlets, 128–9 conscience, 37, 54, 81, 86, 89–90, 94–5, 98, 107, 116, 130, 164 constitutionalism, 18, 41, 43, 56–7, 72, 75–6, 79, 150; see also Aristotle; republicanism and rule of law, 79–80 Cosin, Richard, 102–3, 107, 162, 166, 168 Cotton, John, 10 Cranmer, Thomas, Archbishop of Canterbury, 171 Cromartie, Alan, 150, 159, 163, 165 Crompton, Richard, 162, 165 Daniel, Samuel, 85–8 Dean, David, 148, 160, 163, 166 Dent, Arthur, 120–1, 143, 172 divine right see absolutism dolus bonus, 94, 98, 103 Donne, John, 171 Downame, John, 10 Dunbabin, Jean, 153 Dunkel, Wilbur, 175 Edgerton, Thomas, Lord Ellesmere, 42, 57–8, 80, 85–6, 111, 116, 157, 161, 166 Edward VI, King of England, 11, 21, 24 Elizabeth I, Queen of England, 45, 56–7, 80, 155, 170 Ellesmere see Edgerton, Thomas Elton, G. R., 162–3 equity, 2, 76–8, 80, 96, 101, 159, 162 exception, 49, 78–81, 99–100 and gender, 166 and law, 78–80, 84, 89, 93, 97, 100, 160 equity courts, 77, 82–94, 101, 128, 130 Chancery, 2, 81–90, 93, 98, 103, 116

and penitential justice, 114–17 Requests, 162 Star Chamber, 82–4, 86, 88, 90–4, 96–7 Erasmus, Desiderius, 3, 57, 149 Eusden, J. D., 144, 153, 163 Eusebius, 157 Fedele, Pio, 167, 169, 171 Figgis, J. N., 154–5 Filmer, Sir Robert, 160 Finch, Sir Henry, 10 Fineaux, Sir John, 116–17 Floyd, Thomas, 3 Fortescue, Sir John, 55 Fortier, Mark, 164 Foucault, Michel, 4, 174 Foxe, John, Bishop, 45–6, 52, 54, 61 Frye, Roland, 171 Fulbecke, William, 166 Fuller, Thomas, 3, 44, 57, 124–5, 175 Gardiner, Stephen, Bishop, 44 Gataker, Thomas, 10 Geertz, Clifford, 4 Gelasius, Pope, 33 George, Robert, 150 Gifford, George, 173 Giles of Rome, 55 Glascock, Edward, 33–4, 107 godly/godlike ruler, 16–17, 23–4, 39–40, 49–50, 55, 61; see also sacral kingship; lawgiver Grafton, Anthony, 151 Greenblatt, Stephen, 147, 170 Guy, John, 83, 162–3, 166, 170 Hake, William, 80, 82, 86, 89, 114, 159–60, 163–5 Hampton Court Conference, 110–11 Harper, Carolyn, 161 Harrab, Thomas, 144 Harrington, James, 3, 43, 120 Hayne, Victoria, 149 Helgerson, Richard, 152 Helmholz, R. H., 146, 167–9 Henry VII, King of England, 83, 88 Henry VIII, King of England, 3, 27, 46, 88

Index Herrup, Cynthia, 126–7 high Christian royalism, 45, 54, 56–61, 68–70, 77, 131 Hobbes, Thomas, 70 Holdsworth, W. S., 57, 72, 89–90, 159, 161, 163–4, 166, 169 Homilies, The Two Books of, 31, 37–8, 57–8, 62, 69, 147, 155 Hooker, Richard, 3, 18, 46–7, 54, 56, 76, 79, 123–4, 153 Houlbrooke, Ralph, 167 Hudson, William, 73, 90–4, 96, 114–15, 142, 163 ideals, in political discourse, 2–3, 60–1 Incarnation, 61, 91 individual, good of vs. common good, 13–15, 20–2, 24–7, 54, 98–106, 108, 113–14, 130, 137 and penitential justice, 102–3, 109 individualism, 18, 34 Ingram, Martin, 146, 148, 167 intent, 100–1, 106, 156, 169 James VI and I, King of England and Scotland, 1, 42, 45, 57–9, 66, 81–2, 92, 110–12, 130–1, 160–1, 164, 167–8 Basilicon Doron, 3, 17, 37–8, 47, 56, 62, 73–4, 110, 147, 169 A Meditation, 73–4, 110, 114–15 ‘Speech in Star Chamber . . . 1616’, 63, 68, 73 James, Thomas, 144 Jones, W. J., 166, 172 Jonson, Ben, 1 Jordan, Constance, 160 Josephus, Flavius, 19–21, 24, 33 juridic conception of the state, 72–3, 77–8, 93, 135 Kantorowicz, Ernst, 44, 76, 153 Kaplan, M. L., 157 Kent, Joan, 33 Knafla, Louis, 154, 161, 163–4, 166 Knappen, M. M., 144 Knoppers, L. L., 167

191

Knox, John, 120 laesio fidei, 2, 93, 98, 103 Lake, Peter, 3, 122–3, 127–9, 143–4, 149, 172 Lambarde, William, 3, 72–3, 75–7, 80–1, 86–7, 90–4, 150, 162–6 Lamont, William, 45 Lascelles, Mary, 50 law, sacrality of, 13–22, 24, 30, 48–53 105, 137; see also sacral loci lawgiver, 17, 19, 23, 54; see also godlike/godly ruler Lega, Michele, 167 Lindley, David, 170 Little, David, 144 Livy, 18, 134 Lloyd, Howell, 150, 160 Lupton, Thomas, 32, 48–50, 52, 121, 160 Luther, Martin, 33, 67 Maccauly, Thomas Babington, 90 MacFarlane, Alan, 145 Machiavelli, Niccolò, 2–3, 38, 41–2, 55, 70 Maitland, F. W., 106 Mandeville, Barnard, 37 Manningham, John, 82 Marchant, Ronald, 167 Markus, R. A., 148, 153 Marlowe, Christopher, 38 marriage, 25–9, 39, 98, 103, 146 Marsilius of Padua, 3 Martz, Louis, 141 Maus, Katharine, 146, 149, 168 McCullough, Peter, 155 McGuire, Philip, 142 McIntosh, Marjorie Keniston, 143–4 McRae, Andrew, 166 Melanchthon, Philipp, 33, 141, 148, 157 Mill, John Stuart, 34, 37–8, 105, 133 Millbank, John, 45, 47, 89, 133, 137, 148–9 Milsom, S. F. C., 86–8, 166, 172 Milton, John, 3, 6, 40, 146 Montague, Sir Henry, 128

192

Index

More, St Thomas, 3, 87–8, 147 Morison, Sir Richard, 154 Morrill, John, 142, 150 Morton, Thomas, Archbishop of Canterbury, 116–17, 136 murder pamphlets, 37, 126–30 nemo tenetur, 105, 167–8; see also privacy Nichol, D. M., 55 nomothetes see lawgiver Nottingham, Heneage Finch, First Earl, 116–17 Nussbaum, Martha, 160 Oakley, Francis, 44, 148, 161 Oath of Allegiance, 111 organic conception of state, 13–15, 19–20, 22, 24, 28, 34, 113–14 Panofsky, Erwin, 4 pardon, 2, 49, 52, 78–81, 100–1, 114–15, 118, 127, 131–40 Parliament, 2, 21, 30–3, 57, 72, 80, 111, 120 penitential justice, 102–10, 114–19, 121–40 Pennington, Kenneth, 156, 161, 169 Perkins, William, 125 Plato, 2, 34, 52, 54–5, 86, 113 Laws, 11–30, 33, 36, 39–41, 49, 71, 134, 150 Republic, 11, 171 Statesman, 11, 39–41, 79 pleasure, 12, 14, 18–20, 25–9, 65, 147 Plowden, Edmund, 160, 163, 169 Plucknett, Theodore, 159, 161–4, 169 Pocock, J. G. A., 150 political theology, 41–5, 79–80, 133–4 Pollock, Sir Frederick, 106 Polybius, 18, 149 Pope, Elizabeth, 141, 154, 175 Popper, Karl, 18 prerogative courts see equity courts prerogative, royal, 57, 59–60; see also absolutism and equity, 76–7, 80–2, 90, 96

and pardons, 78–80 privacy, 4, 22–8, 34, 38, 105–8; see also nemo tenetur private/public morality, relation between, 2, 4–5, 28, 34, 36–8, 62–71 Procope, John, 55, 161 Promos and Cassandra see Whetstone, George Prynne, William, 10 Ptolemy of Lucca, 151, 153 Pulton, Ferdinando, 141, 164, 173 Puritanism, 1–2, 10–11, 15, 17, 21, 28, 31–2, 45, 48, 52, 118–22, 132–3, 152, 160 Pym, John, 58 Reformation, 1, 3, 43–7, 59, 111, 131 regulation of personal conduct; see also sexual regulation and Aquinas, 33, 99 and Bucer, 21–3 and Josephus, 19–20 and Plato, 13–17 and Puritanism, 10–11 and republicanism, 27–8 in Promos, 96–9 in Tudor-Stuart England, 32–8 republicanism, 2–3, 18, 27–8, 41–3, 56, 75, 79, 113, 120; see also constitutionalism Requests, Court of see equity courts Rose, Elliot, 152 Royal Supremacy, 44, 111–12, 171 Russell, Conrad, 58, 150, 154 sacral kingship, 2, 17, 42–5, 50–63, 68–73, 88, 92–3, 103, 110 king as judge, 73–8, 81–2 king as priest, 59–60, 69, 110–11 sacral loci, 40–7, 50, 53–4, 57, 59, 71 and the courts, 48–9, 86, 91 as oracle, 86–8 as sanctuary, 86–8, 91 and the state, 40, 43–7, 50, 103 salus animae see individual, good of Schmitt, Carl, 78–80, 149 Schochet, Gordon, 150 Selden, John, 89–90

Index Seneca, Lucius Annaeus, 148–9 sexual offences in Holy Scripture, 9–10, 30, 143 punishment of, 6, 9–11, 21, 25, 29–33, 64–8, 98, 103–6, 115, 118, 121, 133, 143, 147–8, 165, 168 sexual regulation; see also regulation of personal conduct and Aristotle, 18 and Bucer, 11, 21, 24–9 by church courts, 26, 29, 31–2, 102–3, 105–6 in Measure for Measure, 9, 34–6, 38, 68, 98 and Plato, 11–12, 14, 24–9 in Promos, 95–6, 104–5 and Puritanism, 1–4, 9, 11, 24, 30–4, 133 in Tudor-Stuart England, 36–8 Shakespeare, William, 38 Hamlet, 169 King Lear, 65–7 Measure for Measure, 1–2, 4–9, 12–13, 17, 30, 34–41, 47–51, 54, 60–72, 74, 77–81, 84, 93, 97–103, 107–13, 117–18, 124–33, 137, 142 Richard II, 38 The Tempest, 172 Troilus and Cressida, 69, 159 Sharpe, Kevin, 90–1, 148, 154 Sharpe, J. A., 127–9 Sidney, Sir Philip, 166 Skinner, Robert, 124 Smith, Nigel, 141 Smith, Sir Thomas, 3, 42, 56, 66–7, 72, 83, 85, 154, 159–61 Sommerville, J. P., 154, 159 specific relief, 94, 98, 103 Spenser, Edmund, 73, 80 Star Chamber see equity courts Starkey, Thomas, 3, 27–8 state/church and Reformation, 29, 46, 54, 59, 103, 111–13, 131 and sexual regulation, 29–33, 118 separation of, 33–4, 51–3, 105–8, 111, 131–2, 137, 151

193

state, spiritual jurisdiction of, 29, 34, 44, 55, 59–60, 105–17, 128–30, 136, 170 Stevenson, D. L., 155, 161 St German, Christopher, 78, 111–12, 164, 169, 172 Stubbes, Phillip, 31–2, 52, 57, 121, 160 Suetonius, 38, 56, 149 Tacitus, 41, 56 Taverner, Richard, 154 Tayler, Edward, 155, 157 Thatcher, David, 156 theocracy, 19, 24–9, 33–4, 36, 43, 46, 131 Theodosian Code, 161 Thomas, Keith, 143–4, 147–8 Todd, Margo, 146 torture, 174 Tovey, Barbara, 159 Truth and Reconciliation Commission (TRC), 138–40 Tutu, Desmond, Archbishop of Cape Town, 138–40 Tyndale, William, 44, 155 Ullmann, Walter, 148, 160, 169 Usher, Roland, 163, 175 Valla, Lorenzo, 19 Vinogradoff, Paul, 166 Voegelin, Eric, 17, 145 Whetstone, George, 1, 35, 48, 50–4, 66–9, 74, 84, 93–101, 103–10, 117, 132, 137 White, Helen, 166 Whitgift, John, Archbishop of Canterbury, 44, 78–9, 122–4, 154, 168 Wilbraham, Sir Roger, 56 Williams, Rowan, Archbishop of Wales, 175 Wither, George, 153 Wolsey, Cardinal Thomas, 83–4, 88 Worden, Blair, 151 Wyduckel, Dieter, 156, 161

194

Index

Xenophon, 18 Yale, D. E. C., 116, 163–4

Ziolkowski, Theodore, 160 Zwingli, Ulrich, 45