Shakespeare, Revenge Tragedy and Early Modern Law

Vindictive Justice

Derek Dunne

• Publisher: Palgrave Macmillan
• Year: 2016
• Print ISBN: 9781137572868
• eBook ISBN: 9781137572875
• Topic: Literature
• Subtopic: European Literary Criticism
• Index: Literature

This book, the first to trace revenge tragedy's evolving dialogue with early modern law, draws on changing laws of evidence, food riots, piracy, and debates over royal prerogative. By taking the genre's legal potential seriously, it opens up the radical critique embedded in the revenge tragedies of Kyd, Shakespeare, Marston, Chettle and Middleton.

1
Vindictive Justice in Early Modern England

Obserue the statutes of your Heauenly King;
And from his Lawe make all your Lawes to spring.

James VI and I, Basilikon Doron¹

Once the concept of interminable revenge has been formally rejected, it is referred to as private revenge. The term implies the existence of a public vengeance, a counterpart never made explicit. By definition, primitive societies have only private vengeance. Thus, public vengeance is the exclusive property of well-policed societies, and our society calls it the judicial system.

René Girard, Violence and the Sacred²

In approaching early modern English law, Girard’s formulation is a useful one, reminding us as it does of the compatibility of justice and vengeance. Early modern England may not have been a well-policed society, but it did have a thriving legal system, which openly acknowledged the role of revenge in its operation.³ Public vengeance at that time could mean two very different things. On the one hand the legal system as a civic institution made punishments increasingly public affairs, for example at the infamous ‘Tyburn Tree’. Understood in another way, public vengeance was being made available in the playhouses of London and beyond for the price of admission. Yet how different were these versions of ‘public’ vengeance, and in what ways did the popularity of one come to be reflected in the other? This chapter outlines the reasons why legal history provides such a crucial context for our understanding of early modern drama in general, and revenge tragedy in particular. It gives an account of the participatory nature of early modern law, as well as gesturing towards some of the changes and stresses that system was undergoing at the time that the plays were being written. By dismantling the stale binaries of Law/Revenge, Public/Private that have dominated discussion of revenge tragedy, I seek to realign these discourses as a necessary precursor to a more sophisticated account of how they relate to each other on the early modern stage. Before being able to describe the interactions between revenge tragedy and the legal system in any meaningful way, it is first necessary to trace how England’s justice system operated in the late sixteenth century, to apprehend the central yet shifting edifice of early modern law.

The active forces of revenge

In the first book-length study of revenge tragedy, Fredson Bowers situates revenge plays in the context of the contemporary legal and moral prohibition of revenge. He juxtaposes an older native tradition of private justice (revenge) with the spread of an emerging centralised justice system (law):

The authorities, conscious of the Elizabethan inheritance of private justice from earlier ages, recognized that their own times still held the possibilities of serious turmoil; and they were determined that private revenge should not unleash a general disrespect for law.⁴

However, in reality, far from unleashing a ‘general disrespect for law’, the treatment of revenge in the early modern theatre tends to replicate, modify and critique legal procedures. Furthermore, the assumption that revenge was countenanced as a way to settle old scores flies in the face of more recent work by legal historians of the period.

According to Bowers, Elizabethans knew revenge was wrong, but because of this deep-seated inheritance of revenge, ‘[t]here would be few Elizabethans who would condemn the son’s blood-revenge on a treacherous murderer whom the law could not apprehend for lack of proper legal evidence’.⁵ This of course succinctly describes the plot of a number of revenge tragedies, including Antonio’s Revenge, Hamlet, The Tragedy of Hoffman, and to some extent, The Revenger’s Tragedy. In his discussion of the plays, however, Bowers makes it clear that he believes the revenger loses the sympathy of the audience once he steps outside the bounds of law-abiding society. Revenge tragedy, then, is seen as participating in the transition from private to public modes of justice, with the underlying assumption that revenge and law are polar opposites. Bowers’ legacy led to a situation where the plays became a focal point for a debate about the merits and demerits of revenge, while I would argue that the plays have as much if not more to say on the subject of state justice and its shortcomings.

It is true that many assumptions surrounding revenge tragedy have been challenged since the time of Bowers’ writing, yet the overall architecture of the argument has remained in place. The opposition between lawless revenge and legal redress has exerted a lasting influence on criticism of the genre. While such an opposition may seem obvious to modern observers, early modern writers have a far more sophisticated conception of the relation between revenge and law. As one minister says in his sermon before the assizes, ‘Reuenge is the punishment of iniuries, and the redresse of wrongs: the question is to whom this punishment and vengeaunce belongeth’.⁶ An early modern audience, be it in the theatre or at Tyburn, would have been capable of entertaining the possibility that justice could be vengeful, and revenge just. In Belsey’s formulation, revenge ‘exists in the margin between justice and crime’.⁷ Steve Hindle, when discussing the close relation between the threat of violence and litigation in the early modern period, says:

Indeed, the tendency to place violence and the law at opposite moral poles is arguably a very modern one, which ignores the extent to which they might operate in tandem to establish and protect divinely ordained social and political order.⁸

Literary critics have been slow to adopt such a non-oppositional approach, but the shared ancestry of law and revenge has long been recognised by legal historians. In 1881 Oliver Wendell Holmes argued that the common law grew directly out of the practice of vengeance, even going so far as to say ‘[i]t certainly may be argued, with some force, that it has never ceased to be one object of punishment to satisfy the desire for vengeance’.⁹ In her book Wild Justice: The Evolution of Revenge, Susan Jacoby discusses how law is designed ‘to regulate the vindictive impulse’, containing the desire for revenge rather than erasing it.¹⁰ ‘Vindictive’ and ‘vindication’ share a common root.¹¹ To quote Foucault on the subject: ‘In the execution of the most ordinary penalty, in the most punctilious respect of legal forms, reign the active forces of revenge’.¹² We must open our eyes to the vindictive roots of law itself.

If all law is to some extent vindictive, then early modern law is firmly grounded in revenge. The clearest example that revenge is not necessarily pejorative comes from the New Testament dictum, ‘Vengeance is mine; I will repay saith the Lord’ (Romans 12. 19).¹³ As Prosser points out, this contains ‘both a command and a promise’.¹⁴ Rather than forbidding vengeance outright, God appropriates the right to Himself alone. The divine sanction of vengeance is one of the cornerstones of early modern law, which metes out punishment according to retributive principles. Not only positive (man-made) law, but even divine law is imagined to be grounded in direct and violent reciprocity. We need only think of Thomas Beard’s The Theatre of Gods Judgements (1597) or John Reynolds’ The Triumphs of Gods Revenge against the crying and execrable Sinne of Murther (1621).¹⁵ Both are filled with stories of crimes that eventually come to light,¹⁶ and how ‘few or none escaped the apparent vengeance of God’.¹⁷ Here is an extract from Reynolds’ first history:

And now that Great and soueraigne Iudge of the World … will no longer permit Hautefalia and la Fresnay to goe vnpunished for these their execrable murthers: for the innocent and dead bodies of Mermanda and her husband Grand-Pre, out of their graues cry to him for reuenge.¹⁸

God’s impartiality as a judge is in no way thought to be impaired by the victims’ cries for revenge, and indeed appears to be motivated by them. The Senecanism of the scene, where the dead ‘cry … for reuenge’ from beyond the grave, is not seen to contradict the workings of divine justice. While these texts are designed to dissuade readers from the execrable sin of murder, it is equally the case that revenge is the guiding principle behind the stories, as both crime and punishment. When revenge has such a central role to play in divine matters, this is a clear indication that its negative connotations have been overstated in critical assessments of the early modern period.

Naturally God was not always expected to take such a direct role in the punishing of sin. Such duties fell primarily to the judicial system with the monarch as its titular head; in James’s own formulation, ‘Obserue the statutes of your Heauenly King;/And from his Lawe make all your Lawes to spring’.¹⁹ As God’s minister on earth the sovereign was empowered to carry out the divine will through human law, and his delegates were similarly seen to partake of divine authority.²⁰ The judge in his official capacity was taken to be ‘sitting in the place of God’, from which position meted out vindictive justice.²¹ From a more secular perspective, this is summed up as follows: ‘During ages in which faith in a god’s judgment was pervasive, the state linked its judging to that of the divine’.²² Harry Keyishian shows how retribution is an integral part of law’s function, which ‘promises to avenge those it has been unable to protect’.²³ He takes the example of the treason trials following the Gunpowder Plot in 1606, when Lord Chief Justice John Popham ‘matched punishment to crime with meticulous care’.²⁴ This vengeful aspect of law deserves equal recognition alongside the many examples of the condemnation of private revenge cited by critics such as Bowers and Prosser; both work together to characterise early modern conceptions of what it meant to be just. It is undoubtedly true that revenge and reciprocity pervaded early modern culture, but this applied as much to the legal system itself as it did to an unruly populace. It is to that populace that we must turn our attention, in order to investigate another of Bowers’ critical legacies: ‘the Elizabethan inheritance of private justice’.²⁵

Early modern conflict resolution: legal vengeance

The idea that the Elizabethan population at large was liable to lapse back into private revenge is in need of serious revision, in light of research into early modern legal history and the nature of conflict resolution. Neighbours sought to settle their differences amicably, but if informal methods of reconciliation failed, it was to the law, not to vigilante justice, that they were to turn. As James Sharpe puts it: ‘The veneration of the common law in general, and of the rule of law in particular, was one of the most important intellectual legacies which the seventeenth century handed down to the eighteenth’.²⁶ Sir Edward Coke describes the relationship between the English and their common law in glowing terms: ‘the ancient and excellent laws of England are the birthright, and the most ancient and best inheritance that the subjects of this realm have’.²⁷ Yet such official sentiments cannot be taken as universally accepted; for proof of that we must look at who was using the courts of justice, and why.

The notion that early modern citizens were loth to use the law is belied by the fact that they were going to court in unprecedented numbers. Cases at advanced stages of the King’s Bench and the Court of Common Pleas combined had risen from 2,100 in 1490 to 13,300 in 1580 and 23,453 by 1606.²⁸ C. W. Brooks demonstrates that from 1560, ‘litigation in both courts began to soar’, with the King’s Bench enjoying a fourfold increase between 1560 and 1580.²⁹ Elsewhere, Hindle’s work on the process of being ‘bound over’ to keep the peace has shown that early modern citizens were heavily invested in reconciliation methods which used legal officials, but stopped short of going to law:

The desire for authoritative arbitration therefore led to a substantial increase in quasi-formal dispute settlement during the late sixteenth and early seventeenth centuries, without which the increase of litigation would have been even more marked.³⁰

Both historians agree that it was the middling sort – yeomen, merchants, artisans – that were the primary users of such legal machinery.³¹ This was facilitated by the fact that legal remedies were not prohibitively expensive, and in a nascent marketplace economy ‘each transaction was, of course, a potential lawsuit’.³² On the question of class, J. H. Baker notes that in ‘the royal courts, fewer than a third of all litigants were from the gentry class; as many plaintiffs were yeomen as gentlemen; and at least a quarter were tradesmen’.³³ Since it is the moderately prosperous that made up the bulk of early modern court business, Brooks makes the point that we must modify previous accounts of a feuding aristocracy putting do...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• A Note on Texts
• Introduction: Staging Justice
• 1 Vindictive Justice in Early Modern England
• 2 Correcting Justice with Vengeance in The Spanish Tragedy
• 3 Titus Andronicus: The Evidence of the Senses under Threat
• 4 Antonio’s Revenge, Riot and Collective Action
• 5 Exceptional Hamlet and Resistance to Law
• 6 Piracy, Insurrection and The Tragedy of Hoffman
• 7 The Revenger’s Tragedy: Post-Participatory Justice
• Conclusion: Participation and Vindication on the Early Modern Stage
• Notes
• Bibliography
• Index