University of Southern California Dissertations and Theses

(USC Thesis Other)

Popular jurisprudence in early modern England

PDF

Download a page range

Download transcript

Copy asset link

Request this asset

Transcript (if available)

Content

POPULAR JURISPRUDENCE IN EARLY MODERN ENGLAND

by

Penelope Geng

_______________________________________

A Dissertation Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the Requirements for the Degree
DOCTOR OF PHILOSOPHY (ENGLISH)
August 2014
!
!

© Penelope Geng 2014
ii
TABLE OF CONTENTS

Abstract

iii-vi
Note on Texts

vii
List of Figures

viii
Introduction Jurisprudentia in Classical and Early Modern Literature

1-43
Chapter 1 Affective Jurisprudence in Foxe’s Acts and Monuments:
Theory and Performance

44-85
Chapter 2 Law and Conscience in A Warning for Fair Women and
Elizabethan Crime Literature

86-136
Chapter 3 Imagining Magistracy in Shakespeare’s Henry IV, Part 2

137-174
Chapter 4 Disclosing Law’s Mysteries: Bacon and the Universalization
of Legal Knowledge

175-204
Conclusion

205-210
Bibliography

211-228
Acknowledgements

229-230

!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
!
iii
Abstract

In early modern England, two equally powerful legal epistemologies existed. Leading
lawyers viewed jurisprudence as the perfection of reason. In contrast, popular authors defined it
as the epitome of moral feeling. According to the latter, jurisprudence—knowledge of justice—
depended less on a subject’s formal training in the law than on his or her conscience. As
Vincentio of Shakespeare’s Measure for Measure tells his deputy, “enforce or qualify the laws /
As to your soul seems good.” By modeling for readers the “proper” emotional responses to
specific legal situations, popular writers presented their literary fictions as essential tools for
honing legal wisdom. This project seeks to show the crucial work of literary authors in resisting
pressure from the legal profession to cede the practice of jurisprudence to the “professors of the
law.” In preserving a place for emotion in law, and in highlighting the ability of laypeople to
understand and conduct legal work, literary authors successfully undercut legal professionals’
attempts to make law a field of pure reason.
To illustrate the phenomenon of popular jurisprudence in early modern England, I
explore a variety of printed and manuscript sources: hagiography, crime pamphlets, moral essays,
assize sermons, jury charges, and commonplace books. I juxtapose these sources against the
literary “bestsellers” of the age by John Foxe, Shakespeare, Francis Bacon, and less well known
authors, which portray legal wisdom arising from numinous, non-rational forces: religious
humility and self-abnegation (“fear of God”), heightened poetic sensibility (“passion”), and
moral wisdom (“learning”).
In my introduction, I explore the revival of interest in early modern England in classical
and early Christian theories of virtue and conscience. The next two chapters study the growth of
iv
popular jurisprudence during and after the English Reformation. Chapter one focuses on the
logic of affective jurisprudence. Foxe’s Acts and Monuments depicts the contest between “silly”
Protestant defendants and “scholarly” Catholic inquisitors. Many of the martyrs are ordinary
people who possess little legal training. Emboldened by their knowledge of “God’s law”
revealed through godly fear and sorrow, Protestant defendants attack Catholic commissioners’
authority as well as the legality of the examinations.
The discussion of legal wisdom—not of martyrs but of reprobates—continues in chapter
two. Drawing on evidence from four related genres of moral-legal literature—crime pamphlets,
domestic tragedies, jury charges, and assize sermons—this chapter looks at how conscience is
viewed as a form of primal jurisprudence underpinning humanity, above all reprobates, who
possess hyper-awareness of their false actions. Yet what good is this knowledge if it is only
revealed after a transgression? Taking up this question, the author of the domestic tragedy A
Warning for Fair Women claims that tragedy sharpens the moral sensibility of audiences, making
them better judges of human action. In a bold act of self-legitimization, the playwright portrays
the tragic artist as a pivotal member of the congregation of godly legal agents; he teaches as well
as delights audiences, transforming the playhouse into a trial space, the playgoers into witnesses
and jurors. What empowers the artist to speak about legal matters is not his legal experience but
artistic “passion.”
Chapter three offers an opportunity to assess the gap between popular and professional
discourses on legal knowledge using “magistracy” as a touchstone. Religious authors of assize
sermons and character books equate judicial virtue (piety, honesty, care, love) with judicial virtù
(power, action, ability). In contrast, lawyers discuss magistracy in terms of reason. In Henry IV,
Part 2, Shakespeare challenges both discourses by presenting audiences with a Lord Chief Justice
v
who straddles both worlds, the professional and popular, without achieving substantive legal
action in either.
How far did the idea of popular jurisprudence spread? This is a question operating behind
chapter four. Bacon’s treatises show that when it suited his political purpose to do so, he
appropriated the idea of universal legal wisdom for political gain. Specifically, I examine
Bacon’s theory of “prudentia legislatoria” in The Advancement of Learning and On the Dignity
and Augmentation of the Sciences. According to Bacon, the legislator’s wisdom is superior to the
lawyer’s: the lawyer is motivated by profit, the legislator by philanthropic zeal; the lawyer
knows case-law, the legislator possesses a holistic understanding of equity and justice gained
through his “liberal” education. Through an analysis of his legal aphorisms, I study the
contradiction arising from Bacon’s ambition to free the “secrets” of the law and, at the same time,
to fix it in eternity. This is a tension which exists at the very heart of popular jurisprudence.
Ultimately, my project tells the story of a dialectical relationship between popular and
professional legal traditions. This is a story that emerges only upon studying imaginative texts.
Drama, pamphlets, essays, sermons, and other forms of popular literature fill the gap between
what was thought and said and what was recorded in Tudor and Stuart England about the law.
Professional legal literature did not (or could not) speak to the condition of the masses. In
contrast, popular literature told stories of common people using their native wit and intuition to
solve legal problems. At the same time, this literature showed how professional methods of
conflict resolution, based on logic and reason, eloquence and citation, rarely satisfied people’s
desire for swift and equitable justice. My project argues the early modern debate about the place
of emotions in law transcends its historical boundaries. Despite gaining unprecedented prestige
in contemporary culture, the legal profession’s emphasis on rational jurisprudence fails to win
vi
the hearts of audiences. To fill this vacuum, popular culture continues to generate—and
consume—narratives of passionate encounters in law.
vii
Note on Texts

Unless otherwise stated, biblical citations are to King James Bible Online, 2014
(www.kingjamesbibleonline.org). With manuscript citations, I use square brackets [ ] to indicate
expansions of contractions and abbreviations. No attempt has been made to fill in or edit
punctuation. In general, I have modernized the spelling, replacing original “u” and “i” with “v”
and “j.”

viii
List of Figures

Fig. 1 The Lambe Speaketh, c.1554-5. 74
Fig. 2 John Foxe, “Justice,” 1583. 83
Fig. 3 “Map of Essex and Kent,” 1796. 99
Fig. 4 Thomas Fella, Commonplace Book, c.1585-1622. 119
Fig. 5 Albrecht Dürer, Sol Justitiae, c.1499. 156
Fig. 6 Robert Smirke, Falstaff Rebuked, 1795. 170

1
Introduction
Jurisprudentia in Classical and Early Modern Literature
*
The title of this project implies a question. If jurisprudence is the art of legal
interpretation and the creation of legal knowledge by learned professionals, how could it be
linked to the “popular”? I argue that the sense of incommensurability, perhaps even
incompatibility, arising from the coupling of the terms “popular” and “jurisprudence” reveals
an implicit professional bias which defines jurisprudence according to the internal standards,
methods, and customs of legal institutions themselves.
The sixteenth century, common law professionals began to craft an institutional theory
of jurisprudence based on theories and practices which mirrored the historical nature of the
common law. For common lawyers, jurisprudence signified knowledge of (and the ability to
recall in the course of a pleading or judgment) precedent and judicial decisions. What was
jurisprudence? According to lawyers, it was knowledge of the law honed through experience
and perfected through study. Yet for those who were “unlearned” in the law, and who were
writing outside of the intellectual culture of the Inns of Court, jurisprudence signified legal
“wisdom” perfected through religious, moral, and poetic feeling. This project explains how
writers of popular legal literature, including playwrights, pamphleteers, moral essayists, and
preachers, nurtured the populist concept of jurisprudence which proclaimed that every man—
and woman—possessed the ability to do law (investigate, advocate, mediate, and judge) as well
as, if not more expertly, than the professional.
In Tudor and Stuart England, when common lawyers were still in the process of
fashioning their professional character, and when their institutional outlook necessarily
2
contended with other legal traditions (notably the civil law), the very meaning of
“jurisprudence” was unstable. Common lawyers defined jurisprudence as a knowledge of or
skill in the law acquired through study and experience. Jurisprudence was tightly associated
with knowledge of case precedent.
1
This concept of jurisprudence gained widespread usage by
the middle of the seventeenth century. For example, in Thomas Blount’s Glossographia
(1656), an early example of a general-reference dictionary, jurisprudence is defined as a “skill
or knowledge of Laws, also the stile or form of the Law.”
2
This definition is based on Chief
Justice Edward Coke’s legal treatises. In contrast, English civil lawyers, trained in Roman law,
defined jurisprudence as a “wisdom in law”—the ability to “discern” the “right” in each case.
That ability, in turn, was said to derive from an understanding of universal principles of justice
and equity.
3
The civil law notion of “jurisprudentia” evolved from Emperor Justinian’s Corpus
Juris Civilis (533 CE). I discuss the history and usage of the term in the second section.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
J. H. Baker explains that the publication of Edmund Plowden’s Reports was the “first clear indication
that the common law was no longer based simply on the ‘common learning’ of the profession,” that common law
had “come to depend on judicial decision” and moreover that the common law “was now what the courts said it
was, and the courts had embarked on a new mission to develop the common law from case to case” (“Records,
Reports and the Origins of Case-Law in England,” in Judicial Records, Law Reports, and the Growth of Case Law,
ed. J. H. Baker [Berlin: Duncker, 1989], 42.). I discuss how jurisprudence came to signify knowledge of judge-
made law in the second section of the introduction.
2
Thomas Blount, Glossographia (London, 1656), LEME (Lexicons of Early Modern English), ed. Ian
Lancashire (Toronto: University of Toronto Library and University of Toronto Press, 2011),
www.leme.library.utoronto.ca.
3
On the development of civil law studies in England, see Daniel R. Coquillette, The Civilian Writers of
Doctors’ Commons, London: Three Centuries of Juristic Innovation in Comparative, Commercial, and
International Law (Berlin: Duncker & Humblot, 1998); Peter Stein, The Character and Influence of the Roman
Civil Law: Historical Essays (London: Hambledon, 1988); Brian P. Levack, The Civil Lawyers in England, 1603-
1641: A Political Study (Oxford: Clarendon, 1973). There is a profusion of secondary literature on equity,
including the representation of equity in early modern poetry and drama. See inter alia Dennis R. Klinck,
Conscience, Equity and the Court of Chancery in Early Modern England (Burlington: Ashgate, 2010); Randall
Martin, Women, Murder, and Equity in Early Modern England (New York: Routledge, 2008); Andrew J. Majeske,
Equity in English Renaissance Literature: Thomas More and Edmund Spenser (New York: Routledge, 2006);
Mark Fortier, The Culture of Equity in Early Modern England (Aldershot: Ashgate, 2005).
3
The Roman civil law definition of jurisprudence was put to work by authors writing
popular vernacular literature. Literary, religious, and moral authors portrayed legal knowledge
less as a professional skill and more as a form of divinely inspired wisdom—a knowledge of
justice—attained through moral and “virtuous” character. The popular discourse linked
jurisprudence with moral “sagacity,” “judgment,” and “sharp understanding.” For example, in
John Florio’s translation of Montaigne’s The Essays, the faculties of “learning” and “wit” are
distinguished from “judgment” and “conscience.” To the detriment of society, Montaigne
claims, lawyers possess wit but lack judgment:
Whereto serveth learning, if understanding be not joyned to it? Oh would to God,
that for the good of our justice, the societies of Lawyers were as wel stored with
judgement, discretion, and conscience, as they are with learning and wit.
4

The division between the lesser kind of legal perception (“wit”) and the greater one
(“understanding”) remained popular well into the next century. The preacher Elidad Blackwell,
writing during the English Civil War, reminds his congregation that “Salomon” was known for
his “sharpe and exact understanding, to discerne between the modesty of the innocent plaintiff,
and the malice of the envious defendant.”
5
Like Montaigne, Blackwell argues “sharp
understanding” is a crucial component to equitable decision making.
How did one gain “wisdom in law”? Religious authors claimed it resided in the soul
itself. In his 1621 assize sermon, William Younger encourages judges to be
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
4
Michel de Montaigne, The Essayes, trans. John Florio (London, 1603), Sig. G2v. The passage comes
from Montaigne’s “Of Pedantisme” which begins with the contention that “magis magni Clerici, non sunt magis
magni sapientes. The greatest Clarkes are not the wisest men” (Sig. F7v).
5
Elidad Blackwell, A Caveat for Magistrates in a Sermon, Preached at Pauls before the Right
Honorable Thomas Atkin, Esquire, Lord Major of the City of London, November the Third, 1644, Being the First
Day of His Coming Thither after His Entrance upon His Majoralty (London, 1645), Sig. C1v.
4
men of truth, not onely speculative, in knowing, discerning, and judging, but also
practice, in following a right judgment, and observing the rules of truth. For there
is as well veritas vitæ, the truth of life, when the conversation is framed according
to the rule of truth; as veritas justitiæ, the truth of Justice, in discerning right from
wrong.
6

Younger underscores the importance of delivering equitable judgment in magistracy by
exhorting the judges in the audience to employ “right judgment,” “observ[e] the rules of truth,”
and “discer[n] right from wrong.”
7
Using a Latinate syntagm (“as well…as”), he yokes the
truth of life (veritas vitæ) with the truth of Justice (veritas justitiæ). He suggests that the one
reflects the other. As we shall see, this is a logic which authors will use again and again to
legitimize their own legal commentary.
The topic of legal knowledge, what it signified and how it related to legal authority and
interpretation, attracted the attention of both the elite and common classes. For example, James
I and Coke bitterly disagreed over the validity of employing “natural reason” in interpreting the
law. But mainstream culture was also invested in the conversation. My analysis brings together
the discourses of these disparate communities. I investigate plays, sermons, pamphlets (“cheap
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
6
William Younger, The Unrighteous Iudge: Or, Iudex Cretensis, the Iudge of Crete. A Sermon Preached
within the Iurisdiction of the Arch-Deaconry of Norwich, at a Generall Court, in April Last Past, 16. 1621
(London, 1621), Sig. B1v. As the name of the genre suggests, these sermons were preached on the occasion of an
assize. For examples and analysis, see Hugh Adlington, “Restoration, Religion, and Law: Assize Sermons, 1660-
1685,” in The Oxford Handbook of the Early Modern Sermon, ed. Peter McCullough, Hugh Adlington, and Emma
Rhatigan (Oxford: Oxford University Press, 2011), 423–59; Arnold Hunt, The Art of Hearing: English Preachers
and Their Audiences, 1590-1640 (Cambridge: Cambridge University Press, 2010); Barbara J. Shapiro, “Political
Theology and the Courts: A Survey of Assize Sermons c1600-1688,” Law and Humanities 2, no. 1 (2008): 1–28.
On the use of assize sermons as a medium of political complaint and social negotiation, see Juliet Amy Ingram,
“The Conscience of the Community: The Character and Development of Clerical Complaint in Early Modern
England” (Ph.D. diss., University of Warwick, 2004), ch. 2.
7
As Mark Fortier observes, early modern literary constructions of equity frequently take the form of
“systrophe” and “metaphor” which act as “supplements to, or substitutes for, strict definition” (The Culture of
Equity, 108). Systrophe designates the “listing of many qualities or descriptions of someone or something, without
providing an explicit definition” (Silva Rhetoricae, ed. Gideon Burton, www.rhetoric.byu.edu).
5
print”), and other forms of media to reveal how legal knowledge was conceived by popular
writers for their audiences.
8
Through their publications, literary authors helped to legitimize the
claim of ordinary individuals to legal knowledge and, with that, the “right” to legal
commentary, interpretation, and participation. While passive submission to legal authorities
guaranteed subjects a basic form of political recognition, active negotiation with those same
authorities—in the form of legal discourse—enabled them to exert a greater degree of agency,
even power.
9

In his analysis of professional distinction and the accretion of cultural capital, Pierre
Bourdieu states that the “juridical field” acts as “the site of a competition for the monopolistic
right to determine the law” and argues that the party emerging victorious in this competition
displays a “socially recognized capacity to interpret a corpus of texts sanctifying a correct or
legitimized vision of the social world.”
10
Today, it is the professional class—the lawyers,
judges, and legal theorists—who possess this “socially recognized capacity” for legal
interpretation. Today, it is customary, even axiomatic, to link juridical expertise with
professional training. To argue otherwise would seem to fly against the face of common sense.
This fundamental “obviousness” about the organization of legal knowledge, expertise, power,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
8
Some of the sources I explore, especially the murder pamphlets and assize sermons mentioned in
chapters two and three, are called “cheap print.” But I have avoided using this term, preferring instead to call such
texts “popular vernacular literature,” “moral literature,” or “pamphlet” because they describe the nature of the text
(originally, a small book usually unbound and costing roughly twopence). “Cheap print” potentially creates pre-
conceptions about the text’s literary value or supposed audience. As scholars have pointed out, it is very difficult
to estimate the “ideal” reader of such works. It is good policy, therefore, to assume that pamphlets and other kinds
of popular vernacular literature reached readers of varying social strata. For further discussion, see Mary Fissell,
Vernacular Bodies: The Politics of Reproduction in Early Modern England (Oxford: Oxford University Press,
2004), 7. See also Joad Raymond, Pamphlets and Pamphleteering in Early Modern Britain (Cambridge:
Cambridge University Press, 2003); Tessa Watt, Cheap Print and Popular Piety, 1550-1640 (Cambridge:
Cambridge University Press, 1991).
9
Michael J. Braddick and John Walter, eds., Negotiating Power in Early Modern Society: Order,
Hierarchy, and Subordination in Britain and Ireland (Cambridge: Cambridge University Press, 2001).
10
Pierre Bourdieu, “The Force of Law: Towards a Sociology of the Juridical Field,” Hastings Law
Journal 38 (July 1986): 817 (original emphasis).
6
and authority hides a complex story; I will reveal as much of this story as possible through an
analysis of early modern literature.
The equation of legal expertise with legal professionalization neither happened
naturally nor overnight. It was a byproduct of the rise of the common law profession in the late
sixteenth and early seventeenth centuries.
11
In a movement led by jurists such as Edmund
Plowden and Coke, common lawyers defined “jurisprudence” as a rarefied form of scientific
knowledge acquired through “study.” At the same time, and perhaps confusingly, common
lawyers infused their legal discourse with a “sacerdotal” or “oracular” rhetoric.
12
However,
lawyers’ comparison of legal knowledge to oracular inspiration functioned largely as a
rhetorical and political tool to bar lay legal interpretation. When judges and lawyers styled
themselves as “oracles of the law,” they did so to assert their legal authority and to cut off
debate. The practical, day-to-day study of the law continued according to an established (and
decidedly non-metaphysical) curriculum structured around legal pleading and reading.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
11
On the professionalization of the common law under the Tudor and Stuarts, see Christopher W. Brooks,
Law, Politics and Society in Early Modern England (Cambridge: Cambridge University Press, 2008); Rosemary
O’Day, The Professions in Early Modern England, 1450-1800: Servants of the Commonweal (Harlow: Longman,
2000); Richard J. Ross, “The Commoning of the Common Law: Print, Memory, and the Intellectual History of
Legal Communications, 1520-1640” (Ph.D. diss., Yale University, 1998); Christopher W. Brooks, Pettyfoggers
and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern England
(Cambridge: Cambridge University Press, 1986); J. H. Baker, The Legal Profession and the Common Law
(London: Hambledon, 1986); Wilfrid R. Prest, The Rise of the Barristers: A Social History of the English Bar,
1590-1640 (Oxford: Clarendon, 1986). On institutional changes in later periods, see Penelope J. Corfield, Power
and the Professions in Britain 1700-1850 (London: Routledge, 2002); David Lemmings, Professors of the Law:
Barristers and English Legal Culture in the Eighteenth Century (Oxford: Oxford University Press, 2000); David
Lemmings, Gentlemen and Barristers: The Inns of Court and the English Bar 1680-1730 (Oxford: Clarendon,
1990); Geoffrey Holmes, Augustan England: Professions, State and Society, 1680-1730 (London: Allen & Unwin,
1982).
12
On the use of oracular and sacerdotal rhetoric by early modern common lawyers, including Coke, see
Virginia Lee Strain, “The Winter’s Tale and the Oracle of the Law,” ELH 78, no. 3 (2011): 557–84; Paul Raffield,
Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558-1660 (Cambridge:
Cambridge University Press, 2004).
7
Moots and readings tested lawyers’ verbal eloquence. These exercises, to quote Karen
Cunningham, not only “accustom young men to the ways that senior benchers ‘think’ the law”
but also inspire them to “imagin[e] a wide range of subject positions” which, from a literary
scholar’s viewpoint, achieves the kind of imaginative process found in fiction.
13
Aside from
mooting, law students were encouraged to read the law. Some students were more dedicated
than others.
14
Students intent on accumulating knowledge from the best authorities could make
use of legal “preparatives”—how-to or advice books—such as William Fulbecke’s A Direction
or Preparative to the study of the Lawe (composed in 1599 and published in 1600). These
books offered brief histories of the different legal traditions found in English law, discussions
of key legal authorities and their contributions, and meditations on the nature of law and the
legal profession. In his book, Fulbecke (a member of Gray’s Inn) tells students not to shy away
from the task of reading “huge and large” law books and “an ocean of reports.” Channeling the
indefatigable optimism of a humanist-lawyer, Fulbecke declares “Industriæ omnia serva fiunt,
all things are servants to diligence, or come at her command, and arts are not to be esteemed by
the greatness or smallness of the books, but the goodness of their rules.”
15
In short, from the
legal professional’s perspective, legal knowledge was largely a function of legal practice and
reading. Indeed, Coke reminds his readers that “reading, hearing, conference, meditation, and
recordation, are necessarie…to the knowledge of the common Law, because it consisteth upon
so many, & almost infinite particulers.”
16

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
13
Karen Cunningham, “‘So Many Books, So Many Rolls of Ancient Time’: The Inns of Court and
Gorboduc,” in Solon and Thespis: Law and Theater in the English Renaissance, ed. Dennis Kezar (Notre Dame:
University of Notre Dame Press, 2007), 199.
14
On the exceptional reading habits of the young lawyer-in-training Thomas Egerton, see Louis A.
Knafla, “The Law Studies of an Elizabethan Student,” Huntington Library Quarterly 32, no. 3 (1969): 221–40.
15
William Fulbecke, A Direction or Preparative to the Study of the Lawe, ed. T. H. Stirling, 2nd ed.
(London: Clarke, 1829), Sig. Cr–v.
16
Edward Coke, Les Reports de Edward Coke (London, 1600), Sig. π[3]v.
8
The popular tradition articulated a very different notion of legal wisdom and
knowledge. Popular vernacular literature linked legal knowledge with religious and moral
wisdom. So pervasive was this idea that one does not need to dig deep to discover examples. In
the opening scene of Shakespeare’s Measure for Measure, Duke Vincentio instructs Angelo to
follow the principle of equity based on his native sense of justice: to “enforce or qualify the
laws / As to your soul seems good.”
17
Ironically, the celestial promise of Angelo’s name is
betrayed by his lack of knowledge, both of his own nature and of justice. His soul, far from
being “good” is (as he belatedly acknowledges) “corrupt” like “carrion.”
18
Lacking a
fundamental knowledge of justice, Angelo applies the strict letter of the law without due
consideration of its spirit—to the dismay of his subordinates. Angelo’s failure as a magistrate
effectively highlights the authority of the Duke’s original directive. The laws of the state need
to be interpreted or “qualified” by magistrates. Yet the quality of that judgment depends on
their spiritual condition. In imaginative literature, a lack of technical legal knowledge is not
necessarily a handicap but a potential advantage. Characters demonstrate their legal expertise
by correctly determining what is “right” (equitable) in a given case. Their ability to discern
justice reflect their spiritual rectitude rather than formal legal experience. In imaginative
literature, characters unmask corrupt legal power without professional help.
How does that literary representation compare to the real experience of law? In reality,
laypeople depended on professional representation when they moved a case through the law
courts. Criminal law was a notable exception to the culture of legal mediation.
19
In criminal
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
17
William Shakespeare, Measure for Measure, in The Riverside Shakespeare, ed. G. Blakemore Evans
(Boston: Houghton, 1974), 1.1.65–6.
18
Ibid., 2.2.166–7.
19
For an analysis of the “homology” between theatre and law, particularly with respect to their mutual
use of strategies of mediation and deferral, see Holger Schott Syme, Theatre and Testimony in Shakespeare’s
England (Cambridge: Cambridge University Press, 2012).
9
courts, the assize courts or the King’s (or Queen’s) Bench, for example, defendants had no
recourse to legal counsel. They had to interrogate the witnesses and articulate their defenses
according to their own best ability. But in most other legal disputes, e.g. in the transference of
estates, laypeople paid for professional assistance. In navigating the procedural aspects of the
courts, non-professionals stood at a definite disadvantage to their professional counterparts.
Barriers, structural and linguistic, stood in the way of lay access to legal information.
20
Law-
French, used in the central courts, resembled neither French, Latin, nor English, but was a
mixture of all three.
21
For example, Thomas Littleton’s Tenures (1481) opens with the
following: “Tenant en fee simple e[st] celuy que ad terres ou teneme[n]ts a tener a luy et a ses
heires a touts jours” (“Tenant in Fee simple is hee which hath lands or Tenements to hold to
him and his heires for ever”).
22
English words such as “Tenant,” “simple,” “teneme[n]ts,” and
“heires” stud the French grammatical structure and mingle with the Law-French vocabulary.
Lay commentators called the lawyers’ language an affront to common sense: it was all
“Norman Gibberish.”
23
Some lawyers expressed sympathy. Fulbecke conceded that Law-
French contained “harsh, obscure, difficult, and strange terms by the commixtion of the several
languages of the Saxons, Danes, and Normans.”
24
But other lawyers, like Coke, took pride in
the inaccessibility of law’s official language:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
20
There are also fundamental financial barriers to litigation. Could one absorb the cost of pursuing a
case? Unless one happened to live in London, one needed to pay for travels to and from the central courts. Travel,
lodgings, and victuals could end up costing the petitioner more money than the amount originally sued for.
21
"Law French was the language of audience and pleading in the central courts, and hence, the language
of most legal literature. Latin was the language of record, for official documents such as writs, plea rolls, and bills
of indictment. English became the language of trial, the language that was used when legal proceedings had to be
accessible to laypersons” (John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, eds., History of the
Common Law: The Development of Anglo-American Legal Institutions [New York: Aspen, 2009], 152).
22
Littleton qtd. in Edward Coke, The First Part of the Institutes (London, 1628), Sig. A1r.
23
H. C., The Character of an Honest Lawyer (London, 1676), Sig. A3r.
24
Fulbecke, A Direction or Preparative, Sig. F4r.
10
many ancient terms and words drawn from that legal French are grown to be
vocabula artis, vocables of art, so apt and significant to express the true sense of
the laws, and so woven into the laws themselves, as it is in a manner impossible to
change them, neither ought legal terms to be changed.
25

Whatever the case may be on the utility (or lack thereof) of Law-French, it presented a
linguistic barrier to lay engagement. Even the “literate” (i.e. those fluent in Latin, such as the
aristocracy or clergy) struggled to understand the law’s rules, histories, and procedures. During
the English Civil War, on 22 Nov. 1650, Parliament abolished Law-French, stating that
all the Report-Books of the Resolutions of Judges, and other Books of the Law of
England, shall be Translated into the English Tongue: And that from and after the
First day of January, 1650, all Report-Books of the Resolutions of Judges, and all
other Books of the Law of England, which shall be Printed, shall be in the English
Tongue onely.
26

The practice resumed during the Restoration. It was not until 1731 that Parliament passed an
act (4 Geo. 2, c. 26) mandating the use of English in law.
27

Aside from the problem of language, laypeople faced the challenge of obtaining the
necessary information to follow the rules and customs structuring their causes. Law books had
a limited circulation beyond the Inns of Court. Richard Ross estimates that in the period in
question, “law books appeared in 1-3% of the inventories of non-professionals.”
28
In other
words, despite a real increase in literacy during Shakespeare’s lifetime, relatively few people
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
25
Edward Coke’s “Preface” to Littleton’s Tenures (London, 1628), qtd. in D. S. Bland, “Rhetoric and the
Law Student in Sixteenth-Century England,” Studies in Philology 54 (1957): 500.
26
“November 1650: An Act for turning the Books of the Law, and all Proces and Proceedings in Courts
of Justice, into English,” in Acts and Ordinances of the Interregnum, 1642-1660 (London, 1911), 455-456,
http://www.british-history.ac.uk/report.aspx?compid=56426, accessed 02 Jan. 2011.
27
Langbein, Lerner, and Smith, History of the Common Law, 153.
28
Ross, “The Commoning of the Common Law,” 123.
11
had access to law books.
29
Although some legal “self-help” manuals were published during the
sixteenth and early seventeenth centuries, notably justice of the peace manuals such as William
Lambarde’s Eirenarcha (1581), the bulk of legal publishing was directed at and consumed by
professional writers and readers. By the end of the seventeenth century, more and more lay
legal manuals come to be published. This trend reflects a combination of socio-economic
factors: continued literacy, expansion of middle class reading culture, and increased
competition among legal publishers.
30
But that is a development which occurs later than the
period in question here. For most of the Elizabethan period, Richard Tottell held the patent on
publication of common law books; he fiercely guarded his monopoly despite his slacking
productivity. And Tottell’s business did not depend on publishing books for non-
professionals.
31
Under such conditions, and in the face of such obstacles, those who could
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29
On the publication of law books during the Elizabethan period, see J. H. Baker, “English Law Books
and Legal Publishing,” in The Cambridge History of the Book in Britain, ed. John Barnard and D. F. McKenzie,
vol. 4 (Cambridge: Cambridge University Press, 2002), 474–503. On literacy during this period, see David Cressy,
Literacy and the Social Order: Reading and Writing in Tudor and Stuart England (Cambridge: Cambridge
University Press, 2006).
30
On the publication of lay legal manuals in the later seventeenth and eighteenth centuries, see Wilfrid R.
Prest, “Lay Legal Knowledge in Early Modern England,” in Learning the Law: Teaching and the Transmission of
English Law 1150-1900, ed. Jonathan Bush and Alain Wijffels (London: Hambledon, 1999), 302–13.
31
In 1553, Edward VI granted Tottell the printing patent for all law books. Mary I renewed Tottell’s
patent, as did Elizabeth I, thereby granting him the patent for life. In 1577, a number of stationers complained to
the government about the uneven distribution of opportunities. They described Tottell as someone who
monopolized “the printinge of all kindes of lawe bookes, which was common to all Printers / who selleth the same
bookes at excessive prices, to the hinderance of a greate nomber of pore studentes” (“The griefes of the printers
glasse sellers and Cutlers susteined by reson of privileges granted to privatt persons, August 1577,” qtd. in Edward
Arber, A Transcript of the Registers of the Company of Stationers of London, 1554-1640 A. D., vol. 1 [London,
1875], 1.111). Although ultimately unheeded by the Stationers’ Company, the printers had a legitimate complaint.
Tottell had begun his career as a productive legal publisher but over the course of his life, he migrated towards
other enterprises: printing popular verse and estate-management, which contributed to a diminishment in his
productivity. Barbara Kreps calls Tottell’s output a “trickle” compared to that of his former master William
Powell (Kreps, “Elizabeth Pickering: The First Woman to Print Law Books in England and Relations Within the
Community of Tudor London’s Printers and Lawyers,” Renaissance Quarterly 56 [2003]: 1071. According to H.
J. Byrom, Tottell printed “very little after 1586” (“Richard Tottell: His Life and Work,” The Library, 4th, 8
[1928]: 215). In that year, the Court of the Assistants of the Stationers’ Company formally excluded Tottell from
further proceedings on account of his “continuall absence,” “his infyrmytie, & farre dwellinge from the cyty”
(ibid., 219). There was little anyone could do to correct the imbalance between demand and output. By 1588,
12
afford to hire the services of barristers to plead their cases in court, or to provide them with
counsel, did so on a regular basis.
32

Imaginative texts offered an alternative vision to what the law could be. Popular authors
furnished readers with stories featuring close and familiar legal encounters which (often)
resulted in an increase in the wellbeing of individuals and communities. Imaginative literature
emphasized poetic justice over legal procedure. Such literature would have held certain
imaginative and emotional appeal to playgoers or readers who felt cut off from the law. The
law courts were a source of continual collective frustration; to quote Robert Burton in The
Anatomy of Melancholy, the “Tribunal” was a “Labyrinth” and “many lawyers,
advocates…tribunals” produced “little Justice.”
33
Imaginative literature supplied a comfort
against that bitter reality. In literature, characters find a way to circumvent the “Labyrinth” of
law.
Manipulating logics found in folk tales, fables, and ancient literature, imaginative
literature explored the utility of theater (or fiction-making) for law. Routinely, characters
disguise themselves, through physical or linguistic pretenses, to outwit bad lawyers, corrupt
magistrates, and other would-be obstructionists of justice. An instance of this occurs in
Measure for Measure. Duke Vicentio’s disguise allows him to travel undetected among his
people. Like Odysseus amongst the suitors, Vincentio hides his true self (and intentions) in
order to redeem himself as a magistrate and a king. His plot of the bed-trick marks him out as a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !
Tottell had made enough money to retire to his country estates. When he died in 1593, his printing patent passed
to Charles Yetsweirt, who did not live long to enjoy the privilege (he held the patent from 1593 to 1595) (Ibid.,
230). Between 1596-7, Jane Yetsweirt, the widow, tried to keep the operation going—even as she was sued by her
competitors. Her legal problems probably ceased when she married Sir Philip Boteler of Watton Woodhal (Baker,
“English Law Books and Legal Publishing,” 219).
32
It should be noted, however, that prerogative courts such as the Court of Requests and Star Chamber
offered lay pleaders the chance to make their case directly to the judges.
33
Robert Burton, The Anatomy of Melancholy (Oxford, 1651), Sig. E1v.
13
bawd, a panderer, the very sort of person he sought to prosecute at the beginning of the play.
Yet it is this “enterprise” which plucks Isabella from the path of sin and restores Marianna’s
fortunes (4.1.62). Or so Vincentio reasons. To out-villain the villain, the magistrate plays the
actor. He throws “craft against vice” and uses fiction-making tactics to achieve a measure of
justice (3.2.224). Such stories held commercial appeal. The public as well as members of the
court consumed these legal fantasies. Their support not only helped to sustain the writers’
economic livelihood but also, more importantly, their sense of poetic prerogative: they were
assured that it was their task to give expression to the gap between what “should be” and what
“is,” between an ideal of justice and the everyday experience of the law.
1. Dialectic of Law and Literature
Although I have been speaking about “legal knowledge” in a specific sense in the
previous sections, I step back now to consider how my research advances the field of Law and
Literature or Legal Humanities. The critical literature is vast.
34
At the risk of reducing the ever-
growing scholarship to simplistic formulae, I see Law and Literature as participating in what
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
34
Early modern Law and Literature may be divided into two categories: studies which are exclusively
concerned with the representation of law in Shakespearean drama and those explore law and literature in a broader
context. Examples of the former category include Bradin Cormack, Martha C. Nussbaum, and Richard Strier, eds.,
Shakespeare and the Law: A Conversation among Disciplines and Professions (Chicago: University of Chicago
Press, 2013); Karen Cunningham and Constance Jordan, eds., The Law in Shakespeare (Basingstoke: Palgrave,
2010); Paul Raffield and Gary Watt, eds., Shakespeare and the Law (Oxford: Hart, 2008); Brian Jay Corrigan,
Playhouse Law in Shakespeare’s World (Madison: Fairleigh Dickinson University Press, 2004). The latter
category is, understandably, vast, but see Holger Schott Syme, Theatre and Testimony; Rebecca Lemon, Treason
by Words: Literature, Law, and Rebellion in Shakespeare’s England (Ithaca, NY: Cornell University Press, 2008);
Lorna Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford:
Oxford University Press, 2007); Bradin Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the
Rise of Common Law, 1509-1625 (Chicago: University of Chicago Press, 2007); Subha Mukherji, Law and
Representation in Early Modern Drama (Cambridge: Cambridge University Press, 2006); Edward Gieskes,
Representing the Professions: Administration, Law, and Theater in Early Modern England (Newark: University
of Delaware Press, 2006); Raffield, Images and Cultures of Law in Early Modern England; Barbara J. Shapiro, A
Culture of Fact: England, 1550-1720 (Ithaca: Cornell University Press, 2000); Luke Wilson, Theaters of
Intention: Drama and the Law in Early Modern England (Stanford, CA: Stanford University Press, 2000);
Frances E. Dolan, Dangerous Familiars: Representations of Domestic Crime in England 1550-1700 (Ithaca:
Cornell University Press, 1994). I will engage many of these works in the chapters which follow.
14
might be called the post-New Historicist wave of criticism. While Law and Literature retains
aspects of the New Historicist methodology—most notably in its analysis of political and
religious pamphlets and other forms of non-canonical literature—it does not pursue the
theoretic agenda which characterizes the classic New Historicist readings, for example, that
literary writing is pre-written by the “social” (in this case, the “legal”).
A classic New Historicist interpretation argues that subjective experiences, such as
love, sadness, anger, fear, and other emotions, which seem idiosyncratic and unique to the
subject, are pre-determined performances enacted in accordance to a script written by the
ruling class. Since a writer is very much a member of the social network, his or her literary
imagination is said to be determined from without. For Stephen Greenblatt, the artist is never
“perfectly self-contained” and his writing is never the result of “subjective consciousness of an
isolated creator.”
35
Greenblatt’s work inspired others to uncover the hidden politics of
seemingly subversive texts.
The backlash against New Historicism reveals a critical resistance to the idea of
literature as an apparatus of state power. First, let us take a look at how scholars outside of Law
and Literature frame the challenge before exploring how those working in it take up the
critique. According to Katharine Eisaman Maus, New Historicist readings fail to account for
issues of inwardness and subjectivity, which she argues are key features of the literature from
this period:
…we, the postmodern academic heirs of Wittgenstein, Lacan, Marx, Austin, and
Foucault…experience difficulty thinking of individuals apart from external
matrices, who imagine “the supposedly ‘private’ sphere…only through its
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
35
Stephen Greenblatt, “Invisible Bullets: Renaissance Authority and Its Subversions,” in William
Shakespeare’s Henry IV, Part 2, ed. Harold Bloom, Modern Critical Interpretations (New York: Chelsea House
Publishers, 1987), 138.
15
similarities and dissimilarities to the public world,” and who are attracted to the
notion that selves are void.
36

Her assessment is supported by Michael Schoenfeldt whose research on “the empowerment
that Galenic physiology and ethics bestowed upon the individual” is motivated by a
disagreement with New Historicism’s main argument, which, in his words, posits “the
individual as a victim of the power that circulates through culture.”
37
Linda Woodbridge
further argues that “Greenblatt's insistence that power always contains subversion—and
generates subversion precisely in order to contain it—has been a major stumbling-block to the
recognition of radical writing in this period.”
38
These scholars seek alternative critical
approaches which take into account the coercive nature of “power” yet maintain the possibility
of subversive, even “radical,” subjectivity and action.
In many ways, these views reflect an earlier critique of Foucault by Michel de Certeau.
Commenting on Foucault’s Discipline and Punish, De Certeau argues:
If it is true that the grid of “discipline” is everywhere becoming clearer and more
extensive, it is all the more urgent to discover how an entire society resists being
reduced to it…what “ways of operating” form the counterpart, on the consumer’s
(or “dominees”s?) side…the goal is…to bring to light the clandestine forms taken
by the dispersed, tactical, and makeshift creativity of groups or individuals already
caught in the nets of “disciplines.”
39

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
36
Katharine Eisaman Maus, Inwardness and Theater in the English Renaissance (Chicago: University of
Chicago Press, 1995), 28.
37
Michael C. Schoenfeldt, Bodies and Selves in Early Modern England: Physiology and Inwardness in
Spenser, Shakespeare, Herbert, and Milton (Cambridge: Cambridge University Press, 1999), 11.
38
Linda Woodbridge, English Revenge Drama: Money, Resistance, Equality (Cambridge: Cambridge
University Press, 2010), 31.
39
Michel de Certeau, The Practice of Everyday Life, trans. Steven Rendall (Berkeley, CA: University of
California Press, 1984), xiv.
16
The passage is remarkable for its ambivalence. Imagining power as a commercial transaction,
de Certeau argues that individuals or “consumers” are captured in “nets of ‘disciplines.’” Even
so, they participate in “makeshift creativity”; they refashion the object (a thing or an idea) in
idiosyncratic ways. The glass jar of power exists but it is not hermetically sealed.
Few critics would deny the potency of the “state,” “institution,” “ruling class,” and
“hegemony.” Few would argue that power does not continuously act on individuals and
communities. Yet individuals and communities do not lack for agency. The field of law, in
particular, allows people of lesser socio-economic status to wrestle with their “betters” for
power. Political power unfolds in a series of game-like transactions. The ruling class may
impose certain rules but the subordinate class (or classes) invent exceptions to the rule.
Although the subordinate class does not always have authority, some of them do have agency:
they can negotiate the terms of their subordination. Even in societies with rigid social codes
and norms, as in the case of early modern England, individuals may be seen to create
opportunities for negotiation, resistance, experimentation, privacy, and creative disagreement.
The study of Law and Literature (in the early modern context) comes in the wake of
both New Historicism and the critical backlash. What motivates many scholars in this field is a
conviction that law and literature are, to quote Rebecca Lemon, “equally marked by an
investment in language, interpretation, and social forms.”
40
Although scholars have taken
different approaches, they share a curiosity about how each field historically contributed to the
development of the other. At first glance, Law and Literature scholarship appears to retrace
some of the steps pioneered by New Historicism; the question of sovereign power in
Shakespeare’s Henriad, for example, is as central to Greenblatt’s work on the performance of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
40
Rebecca Lemon, “Law,” in The Oxford Handbook of Shakespeare, ed. Arthur F. Kinney (Oxford:
Oxford University Press, 2012), 556.
17
power as it is to recent work in Law and Literature.
41
But a more patient reading reveals Law
and Literature scholars attempting to chart a new direction: to trace the two-way traffic of the
“literary” and the “legal,” especially around the conceptual nexus of language (rhetoric and
storytelling), performance, psychology, and emotion. They are interested in how (and why)
legal writers draw on literary techniques and habits of mind—and how literary writers do the
same but in reverse. Thus, in this sense, Law and Literature may be seen to incorporate
essential elements of New Historicism without adopting the latter’s signature moves.
How does one write a dialectical critical narrative about law and literature? Recent
books by Lorna Hutson and Bradin Cormack offer different yet complementary approaches.
For Hutson, working in this field means studying the impact of Ciceronian forensic rhetoric on
Elizabethan drama (especially Shakespeare’s) and professional legal writing. Such an approach
builds a bridge connecting Law and Literature to landmark studies by Kathy Eden on the co-
evolution of tragic poetics and legal oratory and Joel Altman’s on the impact of rhetoric,
especially the quaestio, on dramatic writing.
42
Crossing Law and Literature with the study of
the history of rhetoric opens many productive conversations. For Hutson, the Elizabethans
were expert readers of “suspicion.” The grammar school curriculum taught dramatists the art of
forensic rhetoric, which they used to “create the impression of a natural sequence sown with
proofs of time, place, instrument.” At the same time, the “judicial oratorical tradition” was
“diffused into English legal practice (through justicing handbooks).” Shakespeare and some of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
41
I will engage this issue in chapter three.
42
Kathy Eden, Poetic and Legal Fiction in the Aristotelian Tradition (Princeton: Princeton University
Press, 1986); Joel B. Altman, The Tudor Play of Mind: Rhetorical Inquiry and the Development of Elizabethan
Drama (Berkeley: University of California Press, 1978).
18
his audience therefore possessed a “sophisticated attitude to the capacity of narrative to
contribute to judicial probability.”
43

Cormack takes a different approach. In fact, he tells two interconnected stories. The
first story, the historical narrative, is devoted to the analysis of literature’s representation of the
jurisdictional crises which marked Tudor and Stuart England and eventually led to the
centralization of the law. Inspired in part by Giorgio Agamben’s analysis of sovereignty,
exception, and threshold, Cormack explores how the expansion of common law jurisdictional
authority anticipates the emergence of the modern state.
44
The second story, a meta-critical
reflection, explores how the textual performance of “jurisdictional limit” “allow[s] us to see the
two discourses, law and literature, as pertaining to a single order and practice of imaginative
thought.”
45
Doing Law and Literature, then, becomes an exercise in “attention.”
46
The way
literary authors construct their authority to interpret is also the way the law “attends to its
operations.”
47
For Cormack, jurisdiction—the “delimitation of a sphere—spatial…temporal…
generic”—mirrors literary writing.
48

My critical practice is shaped by these methodologies. Rhetoric is the starting point for
my analysis of legal knowledge and character. Borders and boundaries feature in my story. But
the limits I am studying pertain to knowledge, subjectivity, and voice. And I am trying to
provide a deeper understanding of the cultural beliefs which sanctioned, even encouraged, the
production of legal commentary from all kinds of authors. In the process, I tell a story that is
shaped by seemingly contradictory tactics of alienation and inclusion. I examine how the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
43
Hutson, The Invention of Suspicion, 123.
44
Cormack, A Power to Do Justice, 28.
45
Cormack focuses on the “middle stages of…centralization of authority through which the modern state
emerged” (Ibid.)
46
Ibid., 22.
47
Ibid.
48
Ibid., 3.
19
institutional legal epistemology developed alongside the popular one. Each move to articulate a
distinctive form of jurisprudence was met by a counter-move. By insisting on the legitimacy of
lay or non-professional jurisprudence, popular authors forced professionals to defend their
legal learning. Yet in emphasizing their legal historical memory to the near exclusion of other
forms of legal knowledge, lawyers forced laymen (in turn) to defend the legitimacy of non-
professional and non-rational legal knowledge. Hence, even as lawyers criticized laymen for
confusing the law, the latter riposted by insisting on their legal knowledge was more authentic.
With respect to the study of legal interpretation, the work of Ian Maclean deserves
special recognition. His book is a comprehensive and comparative history of Renaissance
theories of legal interpretation, meaning, and jurisprudence. Yet Maclean, in his own words,
makes only a “digression into England”; he is primarily concerned with continental Europe and
the spread of Roman civil law.
49
He focuses on the battle of the faculties—humanism versus
law—as it transpired in Europe and within French, Italian, and German universities. And the
historical scholars he engages with, such as Donald R. Kelley and Quentin Skinner, are
similarly engaged in comparative legal history—a history which unfolds in the writings of legal
humanists such as Andrea Alciato and Guillaume Budé.
In contrast, my project is focused on the story of English jurisprudence as it unravels in
popular vernacular literature. I am primarily interested in how popular culture defined
knowledge of the law and the popular fictions which legitimized the “epistemological
competence” (to use Barbara Shapiro’s phrase) of laymen.
50
What was the logic used to justify
lay legal “expertise”? And to what extent did the logic reflect pre-existing cultural beliefs about
innate “wisdom” of all individuals? Did that logic disappear—if so, why did it no longer prove
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
49
Ian Maclean, Interpretation and Meaning in the Renaissance: The Case of Law (Cambridge:
Cambridge University Press, 1996), 6.
50
Shapiro, A Culture of Fact, 24.
20
viable or useful?—or did it evolve (or merge) with other logics? The assertion of one form of
knowledge for another reproduced the struggle for political authority, sovereignty, and
recognition. Who participated in that struggle and what media did they use to express their
views? These are the kinds of questions uniting the present study to others on knowledge,
power, and literature.
By looking at the interplay of popular and professional discourses about legal
knowledge, my project connects to a broader inquiry, which is the social construction of
knowledge or “historical epistemology.”
51
Although this scholarly investigation cannot be said
to belong to a particular critical discipline, historians of science, technology, and medicine
have generated big waves in recent years.
52
For example, Mary Fissell’s research presents a
model for analyzing the form of popular medical knowledge. According to Fissell, popular
medical opinion in this period tended to be suspicious of innovation: “ancient knowledge”
about the body tended to be “more highly valued” than “new” ideas drawn from medical
experimentation.
53

A similar bias operated in the field of law. Indeed, the contest of epistemological
legitimacy—popular versus professional—which Fissell and others have brought to light in the
history of medicine and science occurred in the law a hundred years earlier. In his preface to
his handbook on conveyances, William Sheppard (an alumnus of the Middle Temple) attacked
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
51
I take the phrase “historical epistemology” from Susannah Brietz Monta, who defines it as the attempt
to “uncover ways in which early modern people thought one might come to know what beliefs were true”
(Martyrdom and Literature in Early Modern England [Cambridge: Cambridge University Press, 2005], 4).
52
On the influence of class on constructions of truth and knowledge, see Steven Shapin, The Social
History of Truth: Civility and Science in Seventeenth-Century England (Chicago: University of Chicago Press,
1994); Steven Shapin and Simon Schaffer, Leviathan and the Air Pump: Hobbes, Boyle, and the Experimental
Life (Princeton: Princeton University Press, 1985). See also Pamela H. Smith, The Body of the Artisan: Art and
Experience in the Scientific Revolution (Chicago: University of Chicago Press, 2004); Eric H. Ash, Power,
Knowledge, and Expertise in Elizabethan England (Baltimore, MD: Johns Hopkins University Press, 2004). For a
critique of Shapin, see Shapiro, A Culture of Fact.
53
Fissell, Vernacular Bodies, 6.
21
non-professionals for attempting to practice the law. In the preface to his book on conveyances,
he complains of the tendency of “sundry ignorant men,” including the “unlearned…attorney,”
“lawless scrivener,” “ignorant vicar,” “blacksmith,” “carpenter,” and “weaver,” to “meddle…in
these weighty matters.”
54
He compares lay legalists to another class of pretenders: “Physitians
(but in truth Empericks) [who] deal with men in their bodies.”
55
According to the OED,
“Emperick” designates a “practitioner of medicine who lacks academic training and
qualifications; a practitioner of traditional or folk medicine.” Shortly after introducing this
comparison, Sheppard calls the non-professionals “Empericks of the Law.”
56

In early modern England, the mavericks were not the poets or dramatists who invented
new jurisprudential traditions, but the common lawyers who sought to impose a legal
epistemology rooted in the idea of legal knowledge as “scientific” study upon a general
population more accustomed to thinking about legal knowledge as legal wisdom in a moral
sense. In this way, texts written in favor of popular jurisprudence could be said to be
“conservative” (from the Latin “conservare”) for it sought to conserve, preserve, and to hold in
place ancient attitudes and practices about law and justice against the tide of legal innovation.
There are several ways to tell the story of popular jurisprudence or popular legal
knowledge. Andy Wood, for example, argues that “custom comprised a key element in the
social construction of knowledge.”
57
Wood is right to point to custom as a primary “cultural
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
54
William Sheppard, The Touch-Stone of Common Assurances. Or, A Plain and Familiar Treatise,
Opening the Learning of the Common Assurances or Conveyances of the Kingdome (London, 1648), Sig. A3r.
The word “meddle” was often used in this period by professionals to denigrate the work of non-professionals.
“Meddle” derives from the Latin “miscere” (to mingle). For additional examples and analysis, see Cormack, A
Power to Do Justice, 88–89.
55
Sheppard, The Touch-Stone, Sig. A3v.
56
Ibid.
57
Andy Wood, The Memory of the People: Custom and Popular Senses of the Past in Early Modern
England (Cambridge: Cambridge University Press, 2013), 14. On the importance of custom to the “common-law
mind” exemplified in the works of Sir Edward Coke and Sir John Davies, see J. G. A. Pocock, The Ancient
22
resource” or “discursive field within which subaltern groups felt able to make effective claims
to land, power, space, rights and resources of the social negotiation for power and
recognition.”
58
But custom was not the only concept activated in the negotiation for power. The
very act of defining legal knowledge created a chance for laypeople (writers included) to assert
legal authority. Let us take a closer look at the different ways “jurisprudence” was defined in
classical and early modern texts.
2. Two Ways of Looking at “Jurisprudence”
In sixteenth- and seventeenth-century England, “jurisprudence” or “jurisprudentia”
signified both the “knowledge of the law” gained through intellectual effort (reading, study,
memorization, debate) and—more ambiguously—“the knowledge of things divine and
human.”
59
The first definition comes from Coke’s The First Part of the Institutes (also called
the Commentary upon Littleton), a translation of the medieval jurist Thomas Littleton’s
Tenures.
60
However, Coke’s Commentary is no simple translation. Throughout the text, Coke
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !
Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century: A Reissue
with a Retrospect (Cambridge: Cambridge University Press, 1987).
58
Wood, The Memory of the People, ix, 289.
59
Translators and legal philosophers have struggled to define “jurisprudentia” in a way which accurately
reflects its classical heritage. See for example Neil MacCormick, “De Iurisprudentia,” in Critical Studies in
Ancient Law, Comparative Law and Legal History, ed. John W. Cairns, Alan Watson, and O. Robinson (Oxford:
Hart, 2001), 79–83; A. H. Campbell, “A Note on the Word ‘Jurisprudence,’” Law Quarterly Review 58 (1942):
334–39. MacCormick argues that “whatever the Romans of the classical period of Roman law meant by iuris
prudentia, the second word the compound term must be primarily redolent of the Aristotelian phronesis. So we
are not talking just about a scholarly or learned virtue or activity....We are looking at practical wisdom, that is, at
wisdom, reasoning and intelligence directed to answering the questions: 'How to live?' 'What to do?' But we are
not looking at it in its largest or unrestricted sense. We are focusing on practical wisdom as directed to ius, in short
iuris-prudentia” (80-81). To MacCormick’s analysis I would emphasize that phronesis or prudentia in the
classical moral philosophical tradition as exemplified by Aristotle (and later Cicero) was indivisible from moral
and divine knowledge.
60
Sir Thomas Littleton’s Tenures (originally written in Law-French) was first printed in 1481 and,
according to J. H. Baker, was arguably the most successful legal treatise of the Elizabethan period. On the
enormous influence of Littleton’s book on the common law profession, see J. H. Baker, An Introduction to
English Legal History (London: Butterworths, 2002), 187–8; Theodore F. T. Plucknett, A Concise History of the
Common Law, 2nd ed. (Rochester: Lawyers Co-Operative, 1936), 246.
23
isolates sections of Littleton’s treatise in order to add his own interpretation. The very last of
these interventions defines the terms “jurisprudence” and “jurisprudent.” Commenting on
Littleton’s parting statement, “[f]or by the arguments and Reasons of the Law, a man more
sooner shall come to the certaintie and knowledge of the Lawe,” Coke calls Littleton a
“Jurisprudent” beaming with the “gladsome light of Jurisprudence.”
61
He explains Littleton’s
outlook:
Ratio est anima Legis [reason is the soul of the law] for then are we sayd to know
the Law, when we apprehend the reason of the Law, that is, when we bring the
reason of the Law so to our owne reason, that we perfectly understand it as our
own…if by your studie and industrie you make not the reason of the Law your
owne, it is not possible for you to retain it in your memorie.
62

In this passage, Coke associates jurisprudence specifically with “reason of the Law” and
distinguishes it from “our owne reason”—or natural reason. Furthermore, he emphasizes the
necessity of “studie and industrie” in the process of acquiring jurisprudence. A jurisprudent
(someone like Littleton or Coke himself) is not born wise but, over the course of a long career
in the law, learns to combine the two forms of “reason” to achieve a perfect “apprehension” of
the law. In an additional aside, Coke states that legal knowledge is a form of “secret”
knowledge which is only accessible to those who study “Bookes, Lawes, and Records.” His
translation and commentary of Littleton’s text, Coke imagines, may “open some windows of
the Law, to let in more light to the Student by diligent search to see the secrets of the Law.”
63

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
61
Coke, 1 Institute, Sig. Ggggg2v–3r.
62
Ibid.
63
Ibid. On common lawyers’ rhetoric of arcana and secrecy, see Strain, “The Winter’s Tale and the
Oracle of the Law”; Paul Raffield, “The Ancient Constitution, Common Law and the Idyll of Albion: Law and
Lawyers in Henry IV, Parts 1 and 2,” Law and Literature 22, no. 1 (2010): 19; Richard Helgerson, Forms of
Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992), 100.
24
In short, for Coke, jurisprudence is legal knowledge gained through reading and study; it is
knowledge of the “secrets of the Law” which may not accessed through natural reason alone.
What Coke says here is a version of what he was purported to have claimed to King James
himself: that “law is an art which requires long study and experience”; only those who had
formal training in law could undertake legal interpretation.
64
I will refer to this conception of
legal knowledge as “professional jurisprudence.”
The second definition comes from the writings of the Roman jurist Ulpian (d. 228)
whose works were incorporated into Emperor Justinian’s Corpus Juris Civilis. Ulpian’s maxim
states:
Jurisprudence is the knowledge of things divine and human, and the science of
what is just or unjust. Juris prudentia est divinarum atque humanarum rerum
notitia, iusti atque iniusti scientia.
65

Ulpian’s definition of “juris prudentia” is based on a well-known Stoic precept: “wisdom is the
knowledge of things divine and human things and the cause of each of them” (“sapientiam esse
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
64
Coke qtd. in Prest, The Rise of the Barristers, 12.
65
Ulpian’s maxim appears in Justinian Institutes 1.1.1 and Digest 1.1.10.2. On the development of the
civil law tradition and the growth of legal humanism in Italy, France, and Germany, see Maclean, Interpretation
and Meaning; Quentin Skinner, The Foundations of Modern Political Thought: The Renaissance, vol. 1, 2 vols.
(Cambridge: Cambridge University Press, 1978); Donald R. Kelley, “Vera Philosophia: The Philosophical
Significance of Renaissance Jurisprudence,” Journal of the History of Philosophy 14, no. 3 (1976): 267–79. It
should be noted that Ulpian’s maxim was a commonplace in Renaissance England. For example, the judge Sir
John Dodderidge copied it nearly verbatim: “Juris prudentia, or the knowledge of the Law, is Divinarum
humanarumque rerum scientia” in his book on laws. Next to this sentence Dodderidge writes “Bracton lib. I. cap.
4. §4” (J[ohn] D[oddridge], The Lawyers Light [London, 1629], Sig. B4r). Sometimes, writers did not bother to
cite Justinian’s text, an unspoken signal of the authors’ respect of the readers’ level of education. An example of
unattributed citation occurs in the opening of the popular legal manual Institutions: “The lawe is the direction, and
ministration of Justice. And justice is (as the Emperour Justinian saith in his Institutions) a constant and permanent
will to render unto enerie [sic] person his right and duetie. The learning or prudence of lawe, is a knowledge of
divine and humane thinges, a science and perfect notice of equitie & iniquitie, of right and wrong” (Anon.,
Institutions, or Principal Grounds of the Lawes and Statutes of England [London, 1589], Sig. Aiijr). This book
was reprinted in 1542, 1543, 1555, 1567, 1589, 1604, 1605, 1607, and 1617.
25
rerum divinarum scientiam cognitionemque, quae cuiusque rei causa sit”).
66
But in place of
“sapientia” (divine wisdom) Ulpian has inserted “juris prudentia,” a substitution which
prompts readers to consider exactly how jurisprudence serves to express divine wisdom. The
qualification of the sentence with a second clause—jurisprudence is “the science of that which
is lawful and unlawful” (“justi atque injusti scientia”)—establishes a hierarchy within legal
knowledge: divine or philosophical contemplation of justice precedes and shapes “scientific”
study of the law. I will refer to this conception of legal wisdom as “popular jurisprudence.”
On the continent, Renaissance legal humanists adopted the natural wisdom formula to
elevate the status of the faculty of law. For example, the French humanist Louis Le Roy (or
Leroy) called Roman jurists “prudens,” a word which Robert Ashley, his English translator,
rendered as “prudentes wisemen.” The “great wisedom” of these men not only stemmed from
reading and practice but also their innate spiritual nobility. The “wisemen” were experienced in
politics and law: they had “seene, heard, red, and knowen much.” But they also possessed
knowledge of moral philosophy and history, such as a “knowledge of antiquitie” and an
“understanding [of] the common disposition of mankind; the nature of right, and of equitie.”
67

Le Roy imagined the wisdom of the jurisprudent deriving from a combination of intellectual
and moral wisdom. As Quentin Skinner observes, Le Roy wrote in the wake of Italian civic
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
66
Cicero, Disputationes Tuscalanae qtd. in Maclean, Interpretation and Meaning, 23. On how the Stoic
precept evolves into the Renaissance conception of innate (natural) reason and knowledge of virtue (including
justice), see Maryanne Cline Horowitz, Seeds of Virtue and Knowledge (Princeton, NJ: Princeton University Press,
1998); Eugene F. Rice Jr., The Renaissance Idea of Wisdom (Cambridge: Harvard University Press, 1958).
67
Louis Le Roy, Of the Interchangeable Course, or Variety of Things in the Whole world...Written in
French by Loys Le Roy Called Regius: And Translated into English by R. A., trans. Robert Ashley (London,
1594), Sig. R[6]r. In his dedicatory epistle to Sir John Puckering, Ashley describes the work as a “[c]omparison of
this later age, with all antiquity in Armes, in Learning, and all other Excellency. There was never any mighty
Empire or Monarchie, Kingdom, or Common-wealth, but is here represented; no famous Founder or Governor of
State, no learned Law-maker, or worthy Warriour, but is here mencioned” (Sig. A2v).
26
humanism, which emphasized the integration of the scholarly life of philosophical
contemplation and the political life of civic “action.”
68

Whereas Coke’s professional definition of jurisprudence advances what appears to be a
proto-modern and secular concept of jurisprudence (as a type of specialized or scientific
knowledge, a “skill” honed through untold years of reading and practice), Ulpian’s maxim
promotes, to quote Peter Goodrich, a “theocratic” view of jurisprudence as natural knowledge
which is divine and unchanging.
69
In calling jurisprudence the “knowledge of the divine and
human,” the maxim characterizes “juris prudentia” as a form of spiritual and religious
revelation, knowledge, and inspiration. The wisdom of a jurisprudent does not depend on what
Aristotle called “mechanical” or “craft” knowledge (techne) but on practical wisdom and
virtue (phronesis and arete). Ulpian’s maxim is therefore consistent with a classical moral
philosophical tradition which characterizes legal learning as “true” nobility of the soul. A
jurisprudent should seek to understand fairness, equity, and justice. “Juris prudentia” is a form
of “sapientia”; the jurisprudent is a version of Aristotle’s “wise” and “great-souled” man.
The Ulpian-Justinian definition of jurisprudence is widely reflected in popular
vernacular literature. It is especially pronounced (perhaps not surprisingly) in courtesy
literature and ethical treatises devoted to the reformation of “virtue.” Thus, the Elizabethan
writer Barnabe Barnes argues that
Juris prudentia (which I call the knowledge how to discerne of any cause aright.)
Est divinarum humanarumque rerum notitia, iusti atque iniusti scientia: A notice of
divine and humane affaires: a science which maketh a true difference betweene
right and wrong: Comprehending Sapience, which by Philosophers is defined to be
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
68
Skinner, Foundations: Renaissance, 1:112.
69
Peter Goodrich, Law in the Courts of Love: Literature and Other Minor Jurisprudences (London:
Routledge, 1996), 9.
27
the science of divine and humane matters: and therefore Judges and Interpreters of
the Lawes, were antiently called Prudentes and Sages.
70
Barnes’s definition is closely modeled on Ulpian’s maxim. By reflecting on the Latin root of
jurisprudence—juris (law) and prudentia (prudence, wisdom, and phronesis)—Barnes insists
that moral criteria be used to define legal wisdom.

How a writer or speaker conceived “jurisprudentia” determined his or her writing or
performance of legal ethos (character). The ability to cultivate an authoritative legal persona—
especially through a voice that could speak persuasively and convincingly about a case, a legal
problem, or a legal dispute—was an essential part of social interaction in this period. In no
other time in English history were people more likely to take a personal interest in legal
business. According to Christopher Brooks, the “rate of civil litigation in 1600 was…higher
than it has been in any other period in English history before or since.”
71
Louis Knafla observes
that the “increase in proceedings before the common law courts in the last three quarters of the
sixteenth-century was a unique experience in the history of the law.”
72
James Sharpe adds that
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
70
Barnabe Barnes, Four Bookes of Offices: Enabling Privat Persons for the Speciall Service of All Good
Princes and Policies (London, 1606), Sig. R4v (original emphasis). In choosing to quote from Barnes, I hope to
show the spread of classical notions of jurisprudence within mainstream culture. As a writer, Barnes wrote for
both court and popular audiences. The critical scholarship on Barnes is relatively thin. However, Barnes achieved
a degree of popularity with Parthenophil and Parthenophe (1593), and The Devil’s Charter (1607, a play which
capitalizes on the vogue for Italianate revenge tragedies and witchcraft). See John D. Cox, “Stage Devilry in Two
King’s Men Plays of 1606,” The Modern Language Review 93, no. 4 (1998): 934–47; Madeleine Hope Dodds,
“Barnabe Barnes of Durham: Author and Playwright,” in Archaeologia Aeliana or Miscellaneous Tracts Relating
to Antiquity, ed. C. H. Hunter Blair (Newcastle upon Tyne: Society of Antiquaries of Newcastle-upon-Tyne,
1946), 1–59; Mark Eccles, “Barnabe Barnes,” in Thomas Lodge and Other Elizabethans, ed. Charles J. Sisson
(Cambridge, MA: Harvard University Press, 1933), 165–229.
71
Christopher Brooks, “Professions, Ideology and the Middling Sort in the Late Sixteenth and Early
Seventeenth Centuries,” in The Middling Sort of People: Culture, Society, and Politics in England, 1550-1800, ed.
Jonathan Barry and Christopher Brooks (Houndmills: Macmillan, 1994), 123.
72
Louis A. Knafla, “The Matriculation Revolution and Education at the Inns of Court in Renaissance
England,” in Tudor Men and Institutions, ed. Arthur Slavin (Baton Rouge, LA: Louisiana State University Press,
1972), 238.
28
“practically every court, whether civil or criminal, experienced an increase in business between
the mid-sixteenth and mid-seventeenth centuries.”
73

During this period, alongside the increase in litigation, the legal profession itself
experienced a “dramatic numerical expansion.”
74
Matriculations records from 1580s and
onwards show sharp increases in the number of students called to the bar from all four of the
Inns of Court. Indeed, Wilfrid Prest’s analysis of the Inns’ records suggests that the legal
professional class was growing at a faster rate than the English population. From 1580 to 1619,
the number of barristers increased by 33.1 per cent while the population of England in roughly
the same period increased by 23.3 per cent.
75
The dramatic rise in legal business and the
increased physical presence of legal professionals over the course of a relatively short period of
time helps to explain why early modern English culture developed, to quote Steve Hindle, an
“almost obsessively legalistic” outlook.
76
It was not only the social elite who needed to attend
to the matter of legal knowledge and authority; everyone had something at stake in the law.
Professional jurisprudence by definition implies a logic of exclusion, exceptionalism,
and alienation. An anonymous writer, speaking as one belonging to the profession, lampooned
the “simple sots” who sought to “usurp…the worthy name of lawyer.”
77
By insisting that
jurisprudence could only be gained through textual study, common lawyers narrowed the field
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
73
J. A. Sharpe, “‘Such Disagreement Betwyx Neighbours’: Litigation and Human Relations in Early
Modern England,” in Disputes and Settlements: Law and Human Relations in the West, ed. John Bossy
(Cambridge: Cambridge University Press, 1983), 168.
74
Prest, The Rise of the Barristers, 8.
75
I base this calculation on the matriculation data from Wilfrid R. Prest, “Table 1.1. Bar calls 1518-1639
(decennial totals),” in The Rise of the Barristers, 7 and the population data from “Table 7.8: Quinquennial English
population total 1541-1871” in E. A. Wrigley and R. S. Schofield, The Population History of England, 1541-
1871: A Reconstruction (London: Arnold, 1981), 208–9.
76
Steve Hindle, The State and Social Change in Early Modern England, 1550-1640 (Houndmills:
Palgrave, 2002), 89.
77
T. M., The Solicitor (1643) qtd. in Wilfrid R. Prest, ed., The Professions in Early Modern England
(London: Croom Helm, 1987), 67.
29
of legal expertise to those who possessed formal training, namely, members of their own
profession. At the same time, they rejected the idea that their knowledge was in any way
comparable to that of non-professionals. It was one thing for laymen to participate in criminal
inquests or to sit and deliberate on “matters of fact” on a jury. Indeed, lawyers understood
communal participation in law to be an essential aspect of the common law.
78
In legal treatises
and other publications, common lawyers encouraged people—nobles, statesmen, merchants,
yeomen, etc.—to answer the call of (legal) duty: the law, they knew, could not function without
them. Scholars describe this ideology of legal participation as “participatory justice,”
“communal participation,” and “popular legalism.”
79
Yet the same legal writers considered it
quite another thing for laymen to attempt to interpret the law according to their best
understanding of it.
In his study of the formation of the two “branches” of the common law profession in
early modern England, Brooks investigates the rhetorical strategies barristers employed to
distinguish themselves from the mere “mechanical” solicitor, scrivener, and law clerk. While
members of the law’s “lower” branch were clearly targeted, it is important to emphasize that
lawyers also took aim at other groups. Lawyers like Sheppard complained of the shoddy work
by non-professionals such as the village parson or weaver. These men pretend to be “apt and
able…either to judge of a Conveyance…to determine of the strength and goodnesse of a title or
estate already made, or to make a Conveyance to transferre the property of things from man to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
78
On the active participation of laymen (and women) in law, see Hindle, The State and Social Change;
Malcolm Gaskill, Crime and Mentalities in Early Modern England (Cambridge: Cambridge University Press,
2000); Timothy Stretton, Women Waging Law in Elizabethan England (Cambridge: Cambridge University Press,
1998); Cynthia B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century
England (Cambridge: Cambridge University Press, 1987); J. A. Sharpe, Crime in Early Modern England 1550-
1750, 2nd ed. (Harlowe: Longman, 1984).
79
Hindle, The State and Social Change, 13; Herrup, The Common Peace, 5.
30
man, as the most learned and best Counsellour of them all.”
80
The sorts of men Sheppard
singles out are not without technical learning. While they lack formal legal education, they
possess professional skills and expertise in their respective fields. Was it that command of
another field, divinity or weaving, which empowered them to engage in legal matters? For
Sheppard, the answer was clear. These men, though “utterly ignorant” of the law, did
“undertake with great confidence, and dispatch without any scruple any businesse whatsoever
offered to their hands.”
81

Attacks against lay “meddling” were not always so sharply worded. Fulbecke states that
“[t]he Magistrates are the ministers of Lawes, the Judges are interpreters, the people are the
Servants, that they may have true libertie.”
82
Fulbecke does not deny anyone access to law
books (he says that the “prescript” of “laws” should be known that “men may decline from that
which is forbidden, and follow that which is commanded”), but he is unable (or unwilling) to
imagine non-professionals producing any useful reading of the law. Additionally, Fulbecke
encourages laymen to allow professionals to be their guides: “if a man’s brain be no fit mould
for the law, let another man’s mouth be his teacher.”
83
While Fulbecke refrains from engaging
in the type of anti-populist prejudice commonly repeated in this period, he nonetheless rejects
the legitimacy of lay interpretation of the law. He envisions the division of intellectual legal
labor in stark binaries: some men possess the right “brain[s]” and others do not.
84
Fulbecke’s
skepticism of lay legal learning dovetails with Sheppard’s criticism: “the subject matter of Law
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
80
Sheppard, The Touch-Stone, Sig. A3v.
81
Ibid., Sig. A[3]v.
82
William Fulbecke, A Direction or Preparatiue to the Study of the Lawe (London, 1600), Sig. B[8]v.
83
Ibid., Sig. Cv.
84
I am grateful to Will Fisher for this point.
31
is somewhat transcendent, and too high for ordinary capacities.”
85
Such was the story that
lawyers told to each other and to the public.
According to lawyers, then, jurisprudential knowledge was engrained through study. To
become a jurisprudent, a student needed to attend one of the Inns of Court: the Inner Temple,
Middle Temple, Lincoln’s Inn, or Gray’s Inn. According to professional legal authors, the
study of the common law was tiring and many were not intellectually fit for the task. Legal
study required, in Coke’s words, knowledge of “many, & almost infinite particulers”—legal
cases, opinions, decisions, parliamentary statutes, acts, bills, provisions, proclamations, not to
mention unwritten legal custom. To grasp all that, a student needed to immerse himself in the
curriculum. George Buc (or Buck), the author of a popular early seventeenth-century “history”
of the Inns, argued that legal knowledge was accrued through “[s]choller-like exercises” such
as “conferences, and disputations which they call mootes, and pleadings, and putting cases, and
Lectures and readings uppon the Lawes and Statutes of England.” Out of the many “Students,
and Tyrones [sic]” who flooded the Inns, only a few had the discipline, skill, and intelligence to
make a career of the law.
86
Yet Buc promised those who could endure such “long continual,
painfull and diligent Studies” a storied career in public administration. The “sages of the law”
and “professors of the laws” would be compensated for their labor with wealth, privilege, titles,
and power.
87

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
85
Sheppard, The Touch-Stone, Sig. A4v.
86
According to J. H. Baker, “the evidence suggests that fewer than ten per cent of Inns of Court men in
the fifteenth and sixteenth centuries took to the legal profession as a career” (J. H. Baker, “The Third University
1450-1550: Law School or Finishing School?,” in The Intellectual and Cultural World of the Early Modern Inns
of Court, ed. Jane Elizabeth Archer, Elizabeth Goldring, and Sarah Knight [Manchester: Manchester University
Press, 2011], 9).
87
Sir George Buc, “The Third Universitie of England,” in The Annales, or Generall Chronicle of
England, Begun First by Maister John Stow, and after Him Continued and Augmented with Matters Forreyne, and
Domestique, Auncient and Moderne, unto the Ende of This Present Yeere 1614. by Edmond Howes, Gentleman
(London, 1615), Sig. Nnnn3r. Early modern writers employ the phrase “sages of the law” to describe jurisprudents.
32
This professional definition of jurisprudence competed with the writing of
jurisprudence in popular vernacular literature. According to writers working within the popular
tradition, the “law” signified justice. As a result, popular literature may be seen to preserve lay
legal ethos by, on the hand, satirizing the “narrow” or “mechanical” learning of lawyers as
being insufficient for jurisprudence; and, on the other, by emphasizing jurisprudence as inward,
subjective understanding of justice and equity.
88
The disavowal of lawyers’ learning drives the
plot of the tragicomedy An/The Old Law (c. 1618/9) by Thomas Middleton, William Rowley,
and (perhaps) Thomas Heywood or Philip Massinger. The play tells the story of two sons,
Simonides and Cleanthes, and their different reactions to the prince’s law of mandatory
euthanasia of the old: every male of the “decayed” age of eighty, and female, of sixty,
“shall…be instantly put to death.”
89
Simonides attempts to expose his aging parents to the rigor
of the law so that he may “flourish” financially.
90
Cleanthes, the loving son, seeks to find a
“scruple, cause, or wrested sense” to save his parents lives. When Simonides’s acquaintance, a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !
For example, Bacon (speaking on behalf of James I) instructs justices to mind, “That none shall be a Justice of
peace unless he hath a competent living, unless it be some sages of the law” (The Letters and the Life of Francis
Bacon Including All His Occasional Works, ed. James Spedding, repr. Stuttgart-bad Cannstatt: Holzboog, 1963,
vol. 6 [London: Longman, 1872], 305). The phrase “professors of the law” occurs with some frequency as well,
e.g. when Coke writes, “[i]f you observe any diversities of opinions amongest the professors of the Lawes,
contende you (as it behoveth) to be learned in your profession, and you shall finde, that it is Hominis vitium, non
professionis” (Preface to Le Second Part Des Reportes Del Edward Coke [London, 1602], Sig. [¶5]v). George
Closse’s sermon contains an ironic praise of the learning of the “professors of the lawe” (“A Looking Glasse for
Lawers, & Lawiers. A Sermon Preached before the Judges of Assize for the Countie of Devon, in the Cathedrall
Church of St Peter in Exon on the 8th Day of August:1603: By George Closse Maister of Artes, a Preacher of the
Worde of God at Blacktorrington,” 1603, Lambeth Palace Library, f.56v).
88
A good deal of research exists on the subject of legal satire, especially Elizabethan and Jacobean satires
of lawyers, Justices of the Peace, and corrupt magistrates, so I will not attempt to repeat that work. Instead, I
would emphasize that the satire, of both “ignorant sundry men” and of “wrangling” lawyers, are two sides of the
same coin. Both discourses reflect the unsettled question of what constituted legitimate legal knowledge and
authority. On legal satire, see Gieskes, Representing the Professions; Brooks, Pettyfoggers and Vipers of the
Commonwealth; Edward F. J. Tucker, Intruder into Eden: Representations of the Common Lawyer in English
Literature, 1350-1750 (Columbia, SC: Camden House, 1984).
89
Thomas Middleton, William Rowley, and Thomas Heywood?, An/The Old Law, in The Collected
Works of Thomas Middleton, ed. Jeffrey Masten (Oxford: Clarendon, 2007), 1.1.134–5.
90
Ibid., 1.1.72.
33
lawyer, overhears Cleanthes’s resistance, he questions whether Cleanthes possesses sound
knowledge of the law:
FIRST LAWYER. You understand a conscience, but not law.
CLEANTHES. Why, sir, is there so main a difference?
FIRST LAWYER. You’ll never be good lawyer, if you understand not
that.
CLEANTHES. I think then ’tis the best to be a bad one.
91

The exchange suggests that the more one “understands” the law, the less one will be able to
recognize right action from wrong. The “law” understood by the lawyer, and enthusiastically
embraced by Simonides, is associated with a destructive form of legal literalism and avarice.
The lawyer’s mistake is twofold. First, he prioritizes the “new” law—here standing for the
draconian statute of euthanasia of the elderly—above the “old” law, the divine law, which
requires that children honor their parents. For Middleton’s audience, this reasoning went
against Christian mores. Second, the lawyer makes the mistake of conceiving conscience and
law to be oppositional. Cleanthes’s response indicates that there ought to be no difference:
conscience is (or should be) interchangeable with law.
Drawing on such ancient sources as the Bible (especially Proverbs and Judges) and
classical rhetoric and moral philosophy (by Plato, Aristotle, and Cicero), writers argued that
legal wisdom was not attained through sheer intellectual effort—reading and memory—but
through spiritual, subjective experiences such as the fear of God, the attack of conscience, and
the sparking of the noble soul. Literature plays a crucial role in shaping the popular
understanding of legal knowledge. Whereas legal writing tries to demarcate the boundary
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
91
Ibid., 1.1.100–105.
34
between professional and non-professional forms of knowledge, literature tends to collapse
those distinctions. “Authentic” legal knowledge is read as versions of moral and poetic truths.
The next section explores the philosophical and rhetorical traditions which paved the
foundation for the Renaissance construction of lay legal ethos or “character.”
3. Shaping the Character of the Jurisprudent
Aristotle’s Rhetoric and Ethics form the basis of early modern popular perception of
legal knowledge and how that knowledge is tied to the moral and ethical imagination.
92

Aristotle defines rhetoric as persuasion and emphasizes the importance of the speaker’s ethos
to rhetoric:
[There is persuasion] through character whenever the speech is spoken in such a
way as to make the speaker worthy of credence….Since rhetoric is concerned with
making a judgment…it is necessary…[for the speaker] to construct a view of
himself as a certain kind of person….There are three reasons why speakers
themselves are persuasive; for there are three things we trust other than logical
demonstrations. These are practical wisdom [phronesis] and virtue [arete] and good
will [eunoia]…. A person seeming to have all these qualities is necessarily
persuasive to the hearers.
93

“Ethos” is related to “character” of the speaker—how the speaker “construct[s] a view of
himself.” It is worth emphasizing that for Aristotle, “logical demonstrations,” such as facts,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
92
In her study of Aristotle’s rhetorical and ethical work, Kathy Eden reminds us that a “fundamental
rapport between the law court and the tragic stage...developed at roughly the same time” in fifth- and fourth-
century Athens (Poetic and Legal Fiction, 7–8). Although I am greatly indebted to Eden’s analysis of Aristotelian
conception of the legal-poetic imagination, I see my project as ultimately pursuing a different question: not the
Renaissance revitalization of Aristotelian legal-poetic criticism but its engagement with Aristotle’s discussion of
legal ethos or moral character.
93
Aristotle, On Rhetoric: A Theory of Civic Discourse, trans. George A. Kennedy (New York: Oxford
University Press, 1991), 1.2.4, 2.1.2, 2.1.5. During the Renaissance, Aristotle’s Rhetoric, Nicomachean Ethics,
Poetics, and De Anima were, for the first time, available to English readers (Eden, Poetic and Legal Fiction, 4).
35
evidence, or testimony, while key, are not in and of themselves sufficient for persuasion. The
“art” of rhetoric lies in the integration of logic and ethos. Auditors are more likely to accept a
“demonstration” spoken by a speaker who combines the qualities of “practical wisdom,”
“virtue,” and “good will.” Cassandra, for example, spoke the truth but lacked the requisite
ethos.
For Aristotle, “ethos” denotes moral character developed through voluntary action.
94

According to Christy Desmet, Aristotle’s theory of speech should be read in the context of his
moral philosophy (explicated in the Nicomachean Ethics). Desmet emphasizes that in
Aristotle’s view, one is said to be “just” if one commits a just action and knows it to be so: “the
agent must have knowledge that he acts virtuously…choose to act virtuously, and behave not
accidentally but from a settled disposition toward virtue.”
95
To expand on her point,
Aristotelian ethos is linked to self-knowledge. Aristotle allows for the possibility of accidental
acts of fortitude or justice, but denies that such displays of virtue necessarily prove the agent’s
ethical character. If a good turn is not paired with a pre-mediated and fully conceived
knowledge of the virtue, the agent cannot be said to possess “virtuous” character. Conversely,
what we might call an “agentless crime” occurs when the agent lacks a sense of self-awareness:
the ox which gores his master, the tree which falls on the child, the vermin which transmits the
plague are agents of injustice—yet the particular organism cannot be said to be “unjust.” Only
humans can be just or unjust for only humans possess souls which have the potential to know
justice.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
94
On the ambiguity of the term ethos, see Kennedy’s introduction to 2.12 to Rhetoric.
95
Christy Desmet, Reading Shakespeare’s Characters: Rhetoric, Ethics, and Identity (Amherst, MA:
University of Massachusetts Press, 1992), 5. Desmet’s reading of Aristotle draws form the work of Gerald Else.
36
The discussion of action and character, knowledge and virtue, is crystallized in the fifth
book on justice. Aristotle argues that justice is an “excellence or virtue, and not an Art.”
96
The
ability to do justice is the ultimate demonstration of man’s phronesis. As scholars have noted,
Aristotle’s conception of “phronesis” is ambiguous. The Romans translated it as prudentia or
foreknowledge; early modern English writers translated it as prudence or practical wisdom.
97

Aristotle calls it a “truth-attaining rational quality, concerned with action in relation to things
that are good and bad for human beings.”
98
Yet as Joshua Scodel points out, Aristotle’s
identification of phronesis with the mean is confusing in part because the mean is defined in
relation to individual subjectivity and feeling:
In a circular argument that reveals the full—and avowed—imprecision of his
central concept, Aristotle identifies the mean in any given circumstance as what the
‘prudent man’ [phronimos], that is, the man who reasons correctly concerning what
is proper to do and feel, would determine it to be.
99

If phronesis is indeed an expression of private judgment, then the ethical character of the
“prudent man” determines what constitutes a “proper” action—what is just or unjust in a given
situation. But who figures as a prudent man? Aristotle is not clear on this question. But he does
link the prudent man with the “great-souled man.”
100
Furthermore, he describes this man as the
“best of men” whose “greatness of soul is impossible without moral nobility.”
101
These
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
96
Aristotle, The Nicomachean Ethics, trans. H. Rackham (Cambridge, MA: Harvard University Press,
1926), 6.5.7.
97
“Prudentia” is a word that operates on two levels. It means “practical understanding or wisdom,
sagacity,” “proficiency (in a particular field), practical grasp,” and “foreknowledge.” See P. G. W. Glare, ed.,
“Prūdentia,” Oxford Latin Dictionary (Oxford: Clarendon, 1973), 1509–10.
98
Aristotle, Ethics, 6.4.5.
99
Joshua Scodel, Excess and the Mean in Early Modern English Literature (Princeton, NJ: Princeton
University Press, 2002), 3.
100
Aristotle, Ethics, 4.3.11.
101
Ibid., 4.3.14, 16.
37
passages suggest that for Aristotle, knowledge of justice—jurisprudence—is impossible
without “greatness of soul” and “moral nobility.”
102

The theories examined above concerning character, knowledge, and justice shaped the
Roman understanding of jurisprudence and the representation of the jurisprudent. I am
especially concerned with Cicero’s equation of jurisprudence with philosophical knowledge
and his theory of “natural reason.” According to Cicero, knowledge of the “science of law”
grows out of philosophical knowledge, as the following passage from De legibus makes clear:
ATTICUS. Does this mean that you consider the science of law to be
derived, not from the praetor's edict (as most authorities hold
today), nor from the Twelve Tables (as our forefathers believed),
but from the deepest recesses of philosophy?
MARCUS. That’s right, Pomponious.
103

In this passage, where “Marcus” speaks on behalf of the author, Cicero rejects the idea that
legal knowledge is grounded in a study of “edicts” or man-made laws and argues, instead, that
it is derived from “philosophy.” But what is “philosophy” to Cicero? To answer that question,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
102
In positing such a tight connection between the nobility of spirit and the ability to understand justice,
Aristotle revisits Plato’s analysis of speech and ethical knowledge. According to Plato, a truly “artful” speech
expresses the speaker’s attainment of divine knowledge: knowing both the nature of the soul and the existence of
different types of souls. Socrates tells his auditors that “you must determine which kind of speech is appropriate to
each kind of soul” (277c) and insists that the “nature of speech is…to direct the soul” (Plato, Phaedrus, trans.
Alexander Nehemas and Paul A. Brand [Indianapolis: Hackett, 1995], 271d). Only the philosopher, the lover of
wisdom, possesses that philosophical knowledge. Contemplation of the eternal forms (the “real”) provides some
measure of self-knowledge because it helps the philosopher to regulate and “harmonize the three parts” of the
soul: the reasonable, spirited, and appetitive parts (Plato, Republic, trans. G. M. A. Grube [Indianapolis: Hackett,
1974], 4.443d). But there are limits to what philosophy may do. For alongside Plato’s praise of philosophy is an
idea of destiny. In Phaedrus, for example, Socrates imagines countless souls tumbling through the firmament,
pulled down to earth by the weight of their “black” horse (a metaphor for the lustful appetitive part of the soul).
During this free-fall, some souls are able to see more of heaven—the real—than others. Those which see the most
are reincarnated as philosophers and the least as tyrants.
103
Cicero, The Laws, in The Republic and the Laws, ed. Jonathan Powell and Niall Rudd, trans. Niall
Rudd (Oxford: Oxford University Press, 2008), 1.17.
38
we should look to Cicero’s De officiis (On Duties), which was widely read in both Latin and
English during the mid-sixteenth century.
104
For Cicero, philosophy or “truth” is a
contemplation of “nature,” “reason,” and “justice”:
the search after truth…[is] peculiar to man…To this passion for discovering truth
there is added a hungering, as it were, for independence, so that a mind well-
moulded by Nature is unwilling to be subject to anybody save one who gives rules
of conduct or is a teacher of truth or who, for the general good, rules according to
justice and law.
105

Cicero argues that humans possess a natural instinct to love “truth.” This instinct imbues
individuals with independence of mind for they hate to be subjected to authority except when
they recognize that authority to be “a teacher of truth…who…rules according to justice and
law.”
According to Cicero, “nothing is more vital than the clear realization that we are born
for justice, and that what is just is based, not on opinion, but on nature” and “law is a force of
nature, the intelligence and reason of a wise man.”
106
Endowed with natural reason, humans
possess an instinct for justice. It is this aspect of the Ciceronian outlook which provides
Renaissance thinkers the scaffold for theorizing universal legal knowledge. For Cicero, “nature”
is a reflection of “justice.” Thus, when Cicero talks about the orator’s “natural talent,” he
implies not only the orator’s talent for theatrical performance—diction, a good voice, an
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
104
De officiis was translated by Robert Whittington in 1534 and Nicholas Grimald in 1553; eight editions
of the latter were printed during Elizabeth I’s reign. Henry Peacham described copies of the book “tossed and
torne in every Schoole.” For discussion of the centrality of De officiis in Elizabethan literary culture, see Jennifer
Richards, Rhetoric and Courtliness in Early Modern Literature (Cambridge: Cambridge University Press, 2003),
Ch. 4. For an overview of the state of rhetoric in Elizabethan England, see Cathy Shrank, Writing the Nation in
Reformation England, 1530-1580 (Oxford: Oxford University Press, 2004); Peter Mack, Elizabethan Rhetoric:
Theory and Practice (Cambridge: Cambridge University Press, 2002).
105
Cicero, De officiis, trans. Walter Miller (Cambridge, MA: Harvard University Press, 1913), 1.4.
106
Cicero, Laws, 1.28, 1.19.
39
expansive vocabulary, memory, mastery of the various trope and schemes found in rhetorical
manuals such as the Rhetorica Ad Herennium (attributed to Cicero)—but also a holistic
understanding of justice. Although “art” may “in some cases give polish” to natural ability,
Cicero insists that no amount of study may fundamentally alter the constitution of the orator’s
soul (which, by nature, is just). To summarize, major Greek and Roman thinkers posit a
connection between legal ethos or character and philosophical wisdom. A knowledge of justice
reflects the “greatness of the soul.” Taking a philanthropic view, Cicero insisted that everyone
is born with a natural inclination for the truth, which he equates with justice. Thus, in theory,
every person, endowed with natural reason, possesses a desire for justice.
The classical theories elaborated in the foregoing discussion contain an intimation of
human rights discourse. But it should be noted that the discourse also reflects a distinctly
patriarchal orientation. The “great-souled man” is a warrior-aristocrat-magistrate. Women,
children, foreigners, or the laboring class do not feature in the classical moral-legal imaginary.
But the narrow parameters of classical legal character loosen, to a degree, in early modern
English vernacular literature. Shakespeare’s The Merchant of Venice is an illustrative example.
In place of the traditional jurisprudent, the “great-souled man,” the play offers instead a woman
acting as an expert pleader. Bellario’s letters introduces “Balthazar” as a bookish young man:
We turned o’er many books together: he is furnished with my opinion, which,
bettered with his own learning, the greatness whereof I cannot enough
commend…I never knew so young a body with so old a head.
107

But this impression is immediately dispelled by Portia’s opening speech. Instead of citing
precedent or rules—knowledge gathered from reading “many books”—she opens with lines
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
107
William Shakespeare, The Merchant of Venice, in The Riverside Shakespeare, ed. G. Blakemore
Evans (Boston: Houghton, 1974), 4.1.156–8, 163–4.
40
lifted from Tudor sermons about the “quality of mercy” being “not strain’d.” Thus, Portia pulls
off a double-act: cross-dressing as a lawyer while speaking as a preacher. Her speech contrasts
Old Testament retributive justice (represented by the “awe and majesty” of the “throne
monarch”) with New Testament justice conceived as love and forgiveness. When Portia
declares mercy is “twice-blessed” for it “blesseth him who gives and him who takes,” she
echoes words attributed to Jesus: “It is more blessed to give than to receive” (Acts 20:35). And
when she declares that “mercy is above this sceptred sway…mercy seasons justice,” she echoes
the very tropes of Elizabethan preachers.
108
In other words, tonally and thematically, her
speech is modeled after sermons and moral essays. In his sermon preached at the Sarum assize,
Bartholomew Parsons argues that judges should strike a balance between justice and mercy,
between punishment and forgiveness: “Justice without mercy, is not justice but cruelty
…Mercy without justice, is not mercy, but foolish pitie.”
109
To practice mercy and clemency is
to be, simply, a model Christian. This view is repeated in John Lyly’s Euphues: “Justice
without mercy were extreme injury.”
110
The notebook of Christopher Yelverton, a lawyer
active during the time of Shakespeare, contains excerpts of sermons by notable clergymen.
Yelverton records Richard Vaughan, bishop of Chester and later of London, declaring that
“[t]oo rigorous Justice may be termed syn” and “temperate justice is a vertue.”
111
A “Mr.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
108
Ibid., 4.1.184–197.
109
Bartholomew Parsons, The Magistrates Charter Examined, or His Duty and Dignity Opened. In a
Sermon Preached at an Assises, Held at Sarum in the County of Wiltes, on the Ninth Day of March, Last Past,
1614. By Bartholomevv Parsons Batchelour in Diuinity, and Vicar of Collingborne Kingstone in the Diocesse of
Sarum (London, 1616), Sig. E3v.
110
Lyly (aphorism 445) qtd. in Morris Palmer Tilley, Elizabethan Proverb Lore in Lyly’s Euphues and in
Pettie’s Petite Pallace with Parallels from Shakespeare (New York: Macmillan, 1926), 139.
111
Christopher? Yelverton, BL, Add. MS 48016, fo.30v.
41
Goodwyn” (possibly Thomas Godwin, bishop of Bath and Wells) states that “[c]lemency and
mercie is most to be respected / of greate men and magistrates.”
112

Adopting the guise of a student of law allows Portia to enter the court. But that is the
extent of her resemblance to a legal professional. Her legal method, if it can be termed as such,
does not conform to professional standards of jurisprudence. Instead, her legal wisdom exists
without any rational explanation; it exists because she possesses a “gentle spirit.”
113
Shylock
unwittingly anticipates Portia’s innate, transcendent wisdom when he hails her as a “Daniel
come to judgment” and a “wise young judge.”
114
The line serves a couple of purposes. First, it
foreshadows his downfall. Just as “Daniel had convicted them [the Elders] of false witness by
their own mouth” (Sus. 1:61), so Shylock will soon be convicted by his own words. Second, it
portrays Portia as a latter-day Daniel, a prophet-judge-king who receives the gift of wisdom
from God on account of his faith. God gave Daniel “understanding of all visions & dreames”
(Dan. 1:17). None of the “wise men” could interpret Nebuchadnezzar’s dream except Daniel.
Only he knew to “beseche the God of heaven for grace in this secret” and only to him was the
secret “reveiled…in a vision by night” (Dan. 2:18-19). The comparison of Portia to Daniel
transforms an otherwise straight-forwardly legal setting into a scene of divine reckoning. The
courtroom becomes not only a place for legal interpretation, but for wonder, prophecy, and
revelation. Portia’s wisdom, like Daniel’s, reflects divine knowledge.
The existence (and theatrical success) of fictional jurisprudents like Portia speaks to the
major contribution of dramatic, imaginative, religious, and moral literature to the development
of popular conception of jurisprudence. Popular authors disseminated the idea of jurisprudence
as a function of moral or religious “wisdom” and expanded the ranks of lay jurisprudents. Thus,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
112
Ibid., f.49v.
113
Shakespeare, The Merchant of Venice, 3.2.163.
114
Ibid., 4.1.223–4.
42
literature functions as more than a mere repository of ideas about legal knowledge; it is actively
engaged in the making of new legal norms. Literature becomes a site of possibility and debate.
The role of imaginative literature becomes elevated (or rather remains elevated) as an
investigation of moral, legal insight. Stories depicting lay jurisprudence, attacking the “narrow”
skills of the lawyers, and praising the native wisdom of laymen, helped to lay the groundwork
for the rise of popular jurisprudence. The chapters which follow focus on the major arguments
found in religious, moral, and philosophical texts which open the field of jurisprudence (in
theory) to all persons regardless of their class and gender.
4. The Structure of the Argument
Because I am interested in finding evidence of popular legal expressions, I have sought
texts which were marketed for mainstream audiences and which were produced and consumed
on a commercial scale. Heresy examinations, murder pamphlets, assize sermons, moral essays,
and plays are some of the genres I study. Although I devote greater attention to dramatic
texts—especially to domestic tragedy and Shakespeare’s histories—I venture beyond theatrical
criticism in an attempt to create a fuller sense of popular jurisprudence.
Each chapter explores a facet of popular jurisprudence. The investigation begins in the
1560s, in the aftermath of the Marian Counter-Reformation. Foxe’s Acts and Monuments
highlights the ability of humble people to employ their wisdom of “God’s law” to undermine
their examiners’ legal authority. That legal authority is signified through tragic affect: godly
fear and sorrow. How that “affective jurisprudence” turns up in stories featuring the informal
legal encounter between magistrates and the people is the subject of the middle chapters.
Chapters two and three focus on fictions of lay magistracy which celebrate the ability of all
sorts of people to fulfill the duties of the magistrate. The second chapter revolves around the
43
domestic tragedy A Warning for Fair Women and the representation of primal jurisprudence:
the conscience of reprobates and the heightened moral sensibility of the tragic poet. The third
chapter, centering on Shakespeare’s Henry IV, Part 2, examines the character of the feeling
magistrate who embraces “close encounters” with the people. The play, I argue, simultaneously
absorbs and critiques a body of religious and moral literature which connected moral passion
with legal wisdom. The final chapter moves from the playhouse and the pulpit to the corridors
of power. As Lord Chancellor, Francis Bacon sought an “instauration of laws” and took up the
discourse of popular jurisprudence in attempt to influence the power struggle between Coke
and James I. Blending Protestant zeal and “philanthropia”—love of mankind—Bacon’s many
legal treatises propose the reduction of the law into a series of aphorism to be accessed by all.
From jurisprudentia to popular jurisprudence to universal jurisprudence, from laborers to
merchants to aristocrats to the Lord Chancellor himself, the chapters draw ever expanding
circles around legal and literary communities to illuminate the centrality, and at the same time
the divergent interpretations, of jurisprudence in early modern English culture.

44
Chapter 1
Affective Jurisprudence in Foxe’s Acts and Monuments: Theory and Performance
*
The introductory chapter explored evolving definitions of jurisprudentia from classical
philosophy and rhetoric to early modern English literature. The Roman civil law tradition defines
jurisprudence as a form of moral wisdom. The jurisprudent possesses knowledge of all “things
human” and “divine”—both the laws and customs which govern the relations between states and
sacrosanct notions of justice and equity. No mere lawyer, the jurisprudent is a philosopher-
statesman. He derives his legal knowledge from study and practical wisdom (phronesis). The
jurisprudent slices through legal ambiguity to the heart of the matter. As a legalist, he is both
skillful and wise. The character of the jurisprudent in the classical tradition conforms to then-
dominant standards of aristocratic masculinity. Aristotle characterizes him as a “great-souled
man” in Nicomachean Ethics. Cicero describes him as a seasoned magistrate, an “orator,” in
Offices. What the classical tradition leaves out from the field of jurisprudence is the proverbial
“everyman”—and woman. Class and gender differences are assumed to be barriers to
jurisprudence.
In contrast, non-traditional legal characters, including non-aristocratic men and women,
appear with frequency in English sixteenth-century popular literature. How did it become
culturally acceptable, even fashionable to attribute legal expertise and wisdom to politically,
socially, and economically marginalized figures? To find out, I investigate the appearance of lay
legal experts in early Reformation literature. In Elizabethan England, the text which arguably
made the most impact on the public’s religious imagination was John Foxe’s The Actes and
Monuments of these latter and perillous dayes touching matters of the Church (hereafter Acts
45
and Monuments), also known as The Book of Martyrs. Few books in the period matched Foxe’s
book in terms of the scale of production and dissemination.
1
The first English edition was based
on Foxe’s Commentarii rerum in ecclesia gestarum, published in Strasbourg while the author
lived in self-imposed exile during Mary I’s reign. In 1560, following the coronation of Elizabeth
I, Foxe returned to England, expanded the book, and translated it into English, ensuring that it
reached a broad audience. In 1572, the Privy Council ordered copies of it to be placed in all
cathedrals and in select clergy houses.
2
Members of the Privy Council supervised the project.
Copies of Foxe’s drafts may be found in the working papers of Thomas Egerton, Elizabeth’s
Lord Chancellor.
3
Scholars describe Foxe’s book as the second most important religious text
after the Bible and the “most extensive book project undertaken in England in the hand press
period.”
4
In total, four editions (published in 1563, 1570, 1576, 1583) were printed during Foxe’s
lifetime.
In Acts and Monuments, Foxe is keen to demonstrate the participation of all sorts of
people in the Reformation.
5
In the preface to the first edition (1563), he remarks on the variety of
people persecuted for their Protestant beliefs:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
On the popularity of Acts and Monuments, see Thomas S. Freeman and Elizabeth Evenden, Religion and
the Book in Early Modern England: The Making of John Foxe’s “Book of Martyrs” (Cambridge: Cambridge
University Press, 2011); John N. King, Foxe’s Book of Martyrs and Early Modern Print Culture (Cambridge:
Cambridge University Press, 2006); David Loades, ed., John Foxe at Home and Abroad (Aldershot: Ashgate, 2004).
2
John R. Knott, Discourses of Martyrdom in English Literature, 1563-1694 (Cambridge: Cambridge
University Press, 1993), 4.
3
See, for example, a draft of the examinations of John Philpot found in Egerton’s papers, HEHL MS EL
6162.
4
David Scott Kastan, “Little Foxes,” in John Foxe and His World, ed. Christopher Highley and John N.
King (Aldershot: Ashgate, 2002), 117.
5
Historians have studied the social makeup of English Protestants, especially those mentioned in Foxe’s
text. The vast majority of Protestants were “gentry, professionals, yeomen farmers, and, above all, artisans” with a
distinct “socially top-heavy” emphasis on the artisan class (Christopher Haigh, English Reformations: Religion,
Politics, and Society under the Tudors [Oxford: Clarendon, 1993], 196.)
46
men and wemen, both old, yonge, chyldren, infantes, new borne, maryed, unmaryed,
wyves, wydowes, maydes, blynde men, lame men, whole men, of all sortes, of al
ages, of al degrees. Lordes, Knightes, Gentlemen, Lawyers, Merchauntes,
Archbishops, Bishops, Priestes, Ministers, Deacons, Lay men, Artificers, yea whole
householdes, and whole kyndredes together, Father, Mother and Daughter,
Grandmother, Mother, Aunt, and Chylde. &c. (Foxe [1563] 12).
6

The long list of people, “all sortes” and “al degrees,” impresses upon readers the idea of the
Reformation as “popular enlightenment.”
7
As John King observes, “unlike traditional saints,
Foxean martyrs are recognizable people from all walks of life…rang[ing] from lowly peasants to
learned bishops.”
8

In Foxe’s narrative, laypeople, men and women, rich and poor, educated and uneducated,
debate religion and law with their Catholic examiners. Forced to defend their religious
conviction under duress—a conviction of heresy could spell death by burning—Protestants claim
to believe, speak, and act according to their God-given conscience. A heresy examination blurs
the distinctions between religion and law, faith and jurisprudence. The mixing of categories
occurs at several levels: spatial, procedural, and linguistic. Historically, English heresy
examinations took place outside of the traditional courtroom. Studies, halls, and other sites
designed for informal meeting were transformed to suit the needs of the commissioners. The
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
6
John Foxe, The Unabridged Acts and Monuments Online or TAMO (HRI Online Publications, Sheffield,
2011), http//www.johnfoxe.org. The year of the particular edition followed by page information will be noted in
parenthesis in the body of the essay.
7
Peter Lake, “Anti-Popery: The Structure of a Prejudice,” in Conflict in Early Stuart England: Studies in
Religion and Politics 1603-1642, ed. Richard Cust and Ann Hughes (London: Longman, 1989), 76. Scholars remain
divided over the “popularity” of Protestantism in England. The critical debate is summarized in the introductory
chapter of Eamon Duffy, Fires of Faith: Catholic England under Mary Tudor (New Haven: Yale University Press,
2009). Duffy himself is of the view that the majority of the English remained uncommitted to Protestantism in
Marian England, reading the feverish eloquence of the Protestant polemicists as proof of the Reformers’ lack of
popular support.
8
King, Foxe’s Book of Martyrs, 9.
47
metamorphosis of domestic or semi-private spaces into legal courtrooms mirrors the mixed
nature of the heresy law itself. Under canon law, church officials were forbidden from executing
heretics. So bishops and other clergymen became interrogators and sometimes warders. If an
examiner found the defendant “obdurate” or “stubborn” (words which were used by the
examiner to signify the defendant’s refusal to recant despite multiple offers of clemency), he
could release the heretic to the secular authorities for punishment. Reviving the old heresy law
used during the reigns of her father, Mary I authorized the formation of joint commissions for
heresy detection.
9
These commissions typically included a mix of church officials, civil lawyers,
and government men.
10
These examiners relied on local magistrates, such as justices of the
peace, to initiate the investigation. The justices, in turn, relied on family members or neighbors
to report heretical behavior. Ralph Houlbrooke concludes that “nearly 60 per cent of the arrests
described in Foxe’s account were due to the initiatives of justices of the peace and constables.”
11

Church and state authorities (including lay legal officers) worked hand-in-hand to root out
heresy.
A more subtle kind of categorical mixing occurs at the level of language. “Law” takes on
different meanings during the course of an examination. Defendants, for their part, attempt to
wrestle the meaning of the word to legitimize their arguments. They draw a distinction between
two kinds of law, temporal (the positive law enacted by the state or reinforced by custom) and
divine (the commandments of God). Rejecting the charge of heresy, they claim that it is not they
who disobey the law (by which they mean God’s law), but their accusers. At the same time, the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
9
The Marian statute against heresy (1 & 2 Phil. & Mar. c. 6, “An Acte for the renueng of three Estatutes
made for the punishement of Heresies”) is based on previous statutes from the reigns of Richard II, Henry IV, Henry
V, and Henry VIII, namely, 5 Rich. 2, st. 2. c. 5 (1382), 2 Hen. 4, c. 15 (1400-1, also known as De Haeretico
Comburendo), 2 Hen. 5, st. 1, c. 7 (1414), 25 Hen. 8, c. 14 (1534).
10
Ralph Houlbrooke, Church Courts and the People during the English Reformation 1520-1570 (Oxford:
Oxford University Press, 1979), 218.
11
Ibid., 233.
48
defendants cast suspicion on their examiners’ displays of legal and religious learning. In Foxe’s
text, for example, Protestant examinees, many them lacking formal legal training, emerge as
eloquent and knowledgeable jurisprudents.
Foxe did not set out to promote the idea of lay legal expertise. In the framing, preliminary
material to the book, Foxe adopts a benignly patronizing attitude towards the people. He suspects
“the vulgare sort” or “simple flocke of Christ” of harboring an “ignoraunce of history, not
knowing the course of times, and true descent of the Church” (Foxe [1570) 2). In contrast, he
admires the commitment of elite figures such as William Tyndale and Hugh Latimer. Thus, in
his Latin epistle addressed to Christ, Foxe hails the “glory,” “courage,” and “greatness” of men
like “Cranmer, Ridley, Latimer, John Hooper, Bradford and the rest of the prize fighters in the
same company” for sacrificing themselves for the “true” religion (Foxe [1563] 1). The martyrs
who attract modern critical attention, for example, female evangelicals such as Anne Askew,
Joyce Lewys, and Elizabeth Young, receive fairly limited discussion in Foxe’s text.
12
It is worth
repeating Patrick Collinson’s observation:
nowhere does the martyrologist [i.e. Foxe] suggest that death at the stake conferred
infallibility on the mental capacities of poorly educated people. Their deaths were
edifying, their opinions not always correct.
13

Foxe’s interest in laypeople stretches only so far. In his own words, his mission is to “collect and
set forth the actes, fame and memorie of these our Martyrs of this latter tyme of the
churche…against the importunitie of the malignaunt” (Foxe [1563] 8). He documents the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
12
Over sixty female martyrs appear in Acts and Monuments. On Foxe’s representation of the female
evangelicals, see Megan L. Hickerson, Making Women Martyrs in Tudor England (Houndmills: Palgrave, 2005);
Carole Levin, “Women in the Book of Martyrs as Models of Behavior in Tudor England,” International Journal of
Women’s Studies 4, no. 2 (1981): 196–207.
13
Patrick Collinson, “Truth and Legend: The Veracity of John Foxe’s Book of Martyrs,” in Elizabethan
Essays (London: Hambledon, 1994), 168.
49
suffering of the laypeople but he is unable or unwilling to imagine them as being capable of
original thinking on either theological or legal issues.
It would be inaccurate to describe Foxe as a democratically inclined author, even though
he compiled a popular history of the Reformation. Foxe was a dyed-in-the-wool humanist. As
John King explains, “unlike Tyndale and Crowley, whose publications are wholly in the English
language, Foxe shunned the vernacular…he [Foxe] cultivated the Latinity of the learned
humanist.”
14
Indeed, with the exception of Acts and Monuments, all of Foxe’s major works are
written in Latin. These include Commentarii rerum in ecclesia gestarum (1554), Christus
triumphans (1556), Rerum in ecclesia gestarum commentarii (1559), De christo crucifixo concio
(1571), De oliva evangelica (1578), Papa confutatus (1580), Eicasmi seu Meditationes, in
Sacram Apocalypsin (posthumously published in 1587).
15

Nonetheless, a text as compendious as the Acts and Monuments has a way of eluding the
author’s plan. Because the text attempts to capture the experiences, words, and feelings of all
people, from the yeoman to the bishop, it effectively reinforces the most radical elements of the
Reformation: the idea of the brotherhood of believers, the rejection of intermediaries between the
faithful and God, the emphasis on knowledge accrued through faith alone, and the bias against
scholastic learning. As John Knott explains, Foxe could not predict let alone control the afterlife
of his text. His book “fuelled resistance to the church’s authority” on the part of “Elizabethan
Separatists, including Henry Barrow and John Greenwood, [who] identified instinctively with
Foxe’s Marian martyrs and accused bishops and other dignitaries of the church of assuming the
roles of persecutors, like ‘bloody Bonner,’ given notoriety by Foxe.”
16
Like Pandora’s box,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
14
John N. King, “Religious Dissidence in Foxe’s ‘Book of Martyrs’: Humanism or Heresy?” Religion &
Literature 32, no. 2 (2000): 142.
15
Ibid., 143–4.
16
Knott, Discourses of Martyrdom, 4.
50
Foxe’s book contains “truths” which are potentially subversive to the established authority.
Despite Foxe’s editorial interventions (seen in the introductions and printed marginalia which
frame the stories with orthodox opinions), the stories themselves, which show ordinary people
mocking their betters, contain heterodox and anti-establishment energies.
As a chronicler, Foxe’s method of composition—the exhaustive research which stems
from, first, a hyperawareness of criticism (he states that in publishing his book, he “expose[s]
myself to the hatred, hissings, ill will and censure of many people”) and second, a desire to write
a martyrology based on factual evidence (he contrasts his “true” chronicle against the “entirely
fabulous Golden Legend” which serves as the centerpiece of the Catholic hagiographical
tradition [Foxe (1563) 9])—leaves readers with a text which exceeds its original scope. The text
disseminates a powerful and subversive idea about conscience and knowledge: it is conscience,
not learned and expert knowledge, which constitutes knowledge of the law. In Foxe’s text, lay
defendants attempt to out-argue their examiners. They play the game of the heresy interrogation
as well as (if not better) than the interrogators.
Scholars are beginning to mine Foxe’s text for evidence of lay understanding of the law.
As Houlbrooke points out, with regards to the Tudor heresy documentation, “diocesan records
tell us little about the process of investigation and interrogation that commenced once a suspect
had been arrested” and the paucity of information forces scholars to use “Foxe’s eye-witness
accounts of proceedings.”
17
Most scholars agree with Houlbrooke in seeing Foxe as a fairly
credible reporter of historical facts.
18
Foxe uses authentic transcripts (many of which have been
lost to time), interviews, and autobiographical accounts.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
17
Houlbrooke, Church Courts, 234.
18
The extent to which Foxe manipulated transcripts to reflect his political views has drawn much critical
attention. See Thomas S. Freeman and Sarah Elizabeth Wall, “Racking the Body, Shaping the Text: The Account of
Anne Askew in Foxe’s Book of Martyrs,” Renaissance Quarterly 54, no. 4 (2001): 1165–96; Thomas S. Freeman,
51
What I seek to emphasize in the following analysis, however, is not the utility of Foxe’s
text for filling in the gaps in our knowledge about Tudor heresy procedures, but the radical
challenges the text poses to the classical model of jurisprudential knowledge. While scholars
have long wrestled with the book’s contribution to the establishment of the Elizabethan religious
settlement, they have devoted relatively little attention to its contribution to the question of the
development of common notions of jurisprudence. I argue Foxe’s text is a touchstone of lay
notions of legal custom or practice—and lay constructions of legal voice, authority, and
character.
My analysis focuses on the defendants’ use of “affective jurisprudence”: legal reasoning
grounded in religious passion, expressed through emotional channels, such as the performance of
godly fear and sorrow. I study both the structural logic and the performance of affective
jurisprudence in select examinations. The chapter contains two sections. The first section
examines the logic of affective jurisprudence, specifically, the origins of the idea of “fear of
God” as a catalyst for wisdom. This discussion is immediately followed by close readings of
cases in Acts and Monuments. These cases show how Protestants demonstrated jurisprudential
knowledge through the performance of physical signs (such as crying, trembling, sleeplessness)
and rhetorical ones, such as the use of proverbial language and homely metaphors. In wrestling
with their conscience, and in suffering the pain of “boiling heats” and “gush[ing] tears” (Foxe
[1583] 1910), the examinees reinforce their status as spiritually enlightened beings in possession
of greater legal ethos than their examiners.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !
“‘The Good Ministrye of Godlye and Vertuouse Women’: The Elizabethan Martyrologists and the Female
Supporters of the Marian Martyrs,” Journal of British Studies 39, no. 1 (8-33): 2000.
52
1. The Logic of Affective Jurisprudence
In this section, I examine how the phrase “fear of God” comes to be used as a shorthand
for “wisdom” in Reformation writing. My analysis focuses on Martin Luther’s reflections on
law, conscience, and fear.
19
It is true that Luther’s writing had significantly less impact on the
Elizabethan religious imagination than the works of Calvin.
20
Still, it is Luther who developed
the basis for affective jurisprudence, which features in the examinations discussed in section two.
Exploring Luther’s writing, then, familiarizes us to the essential terms and arguments which
appear in subsequent Protestant writing.
Seeking to foment mass resistance against local Catholic authorities, Luther argues that
every person possess knowledge of God’s law because it is written in the heart (lex in scripta
corde).
21
Luther claims that God “will vouchsafe to write his Law in our hearts (as hee hath
promised) otherwise we doe all come to confusion.”
22
Luther’s simple yet powerful premise
subverts both Catholic structures of religious authority and received humanist notions about the
origin and performance of wisdom. Classical authors and Renaissance humanists argued that
wisdom arose from a combination of philosophical study and worldly experience. Yet Luther
maintains that wisdom lies in the “fear of God.” Aristotle posited that wisdom was demonstrated
in action and deeds. Yet Luther answers that wisdom lies in inward affliction. Psychic discomfort
is a sign of spiritual knowledge. Emotional vivisection precedes religious enlightenment.
Luther’s radical interpretation of knowledge and wisdom produces an epistemological crisis. He
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
19
My analysis of affective jurisprudence outlined in this section is indebted to Harold J. Berman, Law and
Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Harvard
University Press, 2003) and Michael S. Whiting, Luther in English: The Influence of His Theology of Law and
Gospel on Early English Evangelicals (1525-35) (Eugene, OR: Pickwick, 2010).
20
On the decline of Lutheranism in England during the sixteenth century, see Alec Ryrie, “The Strange
Death of Lutheran England,” Journal of Ecclesiastical History 53 (2002): 64–92.
21
“I wil put my Lawes in their heart, and in their mindes I wil write them” (Heb. 10:16).
22
Martin Luther, A Treatise, Touching the Libertie of a Christian, trans. James Bell (London, 1579), Sig.
H[6]v.
53
revives ancient questions about the origin of knowledge: “[w]hence then cometh wisdom? and
where is the place of understanding?” (Job 28:20). The answer, for him, is plainly stated in the
Bible: “the fear of God is the beginning of wisdom” (Ps. 111:10). It is overwhelming and
paralyzing fear, stemming from an awakened conscience, which gives shape to wisdom.
Early leaders of the Reformation like Luther preached resistance, even if it entailed
jeopardizing life, liberty, and property. As Diarmaid MacCulloch observes, “resounding through
the Reformation” was the command from Acts 5:29 which stated “‘[w]e must obey God rather
than man.’”
23
Luther and others verbally flogged those who secretly practiced Protestantism and
outwardly conformed to Catholic articles. They claimed casuists, temporizers, Nicodemites,
equivocators, dissimulators, and liars were destined for the tortures of hell; mental reservation
was perjury in the eyes of God.
24
As “R. D.” in his preface to his translation of Wolfgang
Musculus’s The Temporysour explains to his English readers:
…the love of thy selfe, of the worlde, of thy goodes and ryches, thy landes and
possessions, thy wyfe and chyldren, thy fylthy pleasures, and fleshly delites, the
which al, thou thinking by thy dissimulate ypocrisie to save and preserve, thou shalte
most certaynly lose and forgo, as witnesseth the verytie, saying: Who soever goeth
about by any fraudulent meanes to save his lyfe, he shall most certaynly lose the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
23
Diarmaid MacCulloch, The Reformation: A History (New York: Penguin, 2003), 156.
24
Protestant polemicists rigorously attacked temporizers. On the phenomenon of casuistry during the
Reformation (and literature attacking it), see Toon van Houdt et al, ed., On the Edge of Truth and Honesty:
Principles and Strategies of Fraud and Deceit in the Early Modern Period (Leiden: Brill, 2002); Andrew Pettegree,
“Nicodemism and the English Reformation,” in Marian Protestantism: Six Studies (Aldershot: Ashgate, 1996), 86–
117; Perez Zagorin, Ways of Lying: Dissimulation, Persecution, and Conformity in Early Modern Europe
(Cambridge: Harvard University Press, 1990).
54
same: yea, even this transitory lyfe, besyde the perpetual damnation of soule and
body in the lyfe to come.
25

To avoid the “perpetual damnation of soule and body,” the Protestant must publicly declare his
allegiance to the true faith.
Luther rationalizes political resistance using biblical wisdom literature, which gave
precedence to divinely revealed knowledge over philosophical learning. Luther compares his
enemies to fools. He calls Henry VIII “the fool-king.” This is no casual insult but the premise
behind Luther’s resistance theory. For Luther, the King’s oppression of the English evangelicals
bespoke his pride and arrogance: he did not know God’s law. Consequently, none of the King’s
subject was obligated to obey him. He argues that subjects too often make the “mistake of
believing that they…are bound to obey their rulers in everything.”
26
For Luther, no one ought to
be compelled to obey rulers who act like “scoundrels…suppressing…the Christian faith.”
27
He
warns rulers of the revolution to come: “the common man is learning to think, and the scourge of
princes…is gathering force among the mob and with the common man.”
28
While civil laws serve
to constrain the behavior of the majority of men (the hopeless sinners), such laws are
unnecessary measures where the godly are concerned. Luther compares the true Christian to “an
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
25
Wolfgang Musculus, The Temporysour (that Is to Saye: The Observer of Tyme, or He That Chaungeth
with the Tyme.) Compyled in Latyn by the Excellent Clarke Wolfangus Musculus, and Translated into Frenche by M.
Vallerain Pullain. And out of Frenche into Inglishe by R. D. (Zurich? Geneva?, 1555), Sig. Aiijjr. In this book,
Musculus attacks covert Protestants. The book unfolds as a dialogue between the Temporysour and Eusebius (a
speaker modeled after Eusebius Pamphilius of Caesarea, the historian of the early Christian church). The former is
represented as a weak-willed hypocrite: he possesses a conscience, and he fully understands the sinfulness of lying,
yet he continues to dissimulate.
26
Martin Luther, “Temporal Authority: To What Extent It Should Be Obeyed,” in Selected Writings of
Martin Luther: 1520-1523, ed. Theodore Tappert, trans. J. J. Schindel and Walther I. Brandt (Minneapolis: Fortress,
2007), 273.
27
Ibid., 274.
28
Ibid., 306.
55
apple tree” which by “nature” bears fruit, not thorns, and “do right and keep the law better than
one can teach…with all manner of statutes.”
29

Luther’s analysis of law’s functions paved the way for later anti-Catholic polemical
writing. During the Counter-Reformation in Marian England, English evangelicals issued
indictments against Mary I and her council. From safe havens abroad such as Geneva and
Emden, Protestant exiles argued that Mary was encircled by a pack of bad counselors and that it
was the duty of all loyal subjects to resist their policies. The anonymous translator of A Faitfull
Admonycion (1554) laments the “state of my naturall contry of Ingland / over the which god
threateneth now his terrible wrath” and frames his pamphlet as a “cowncell” and
“advertysement” which reminds readers of the necessity of resistance:
It is not only unlawful to obey them or in any wyse to consent unto them / But
also most lawfull to stand in the defence of goddes religion and of the lawdable
and awncient state of their contry against such uncircumcised tyrannes (thei shall
never be called magistrates of me til thei shewe themselves worthy of that name)
as goo abowt study devilish enterprises.
30

While this anonymous author rejects the legitimacy of Catholic “magistrates” outright, he dances
around the issue of open rebellion. He asks readers not to interpret his book as an
“instruction…to stirre any man to unlawful rebellion” but “as an advertysement that no man
minister any aide or obedience to such tyrannes as bend them selves against god and his word
and to the subversion of their natural contry.” However, by casting Catholic “magistrates” as
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29
Ibid., 279.
30
Philip Melanchthon, A Faithfull Admonycion of a Certen Trewe Pastor and Prophete Sent unto the
Germanes at Such Tyme as Certen Great Princes Went Abowt to Bring in Alienes in to germany...Now Translated in
to Inglyssh for a Lyte Admonycyon unto All Trewe Inglyssh Hartes Whereby Thei May Lerne and Knowe How to
Consyder and Receive the Procedings of the Inglyssh Magistrates and Bisshops. With a Preface of M. Philip
Melancthon (Greenwich [?], 1554), Sig. Aijr. Melancthon’s text is a translation of text by Eusebius.
56
tyrants, even devils (they “study devilish enterprises”), he implies it would be a fine thing indeed
if Englishmen did opt for rebellion.
31

Central to Protestant resistance theory is an idea of law’s two “uses.” Luther divides
“law” into two branches: the civil (usus civilis or politicus) and the theological (usus theologicus
or spiritualis).
32
Michael Whiting explains the differences:
Luther used the formal concept of the usus legis to refer, first, to the moral Law as an
instrument of God’s providence to restrain the wickedness of the unregenerate by
means of coercion, threats, and temporal and civil punishments (the usus civilis or
politicus) for the sake of upholding social and civic order. Secondly, God uses the
Law to accuse consciences of sin and damnation so that reconciliation with God is
found by faith alone in the promise of forgiveness in the Gospel of Jesus Christ (the
usus theologicus).
33

Luther associates the civil law with “temporal authority.” He emphasizes the historical nature of
civil laws and customs. Additionally, he argues that civil law’s principle function is the
maintenance of harmonious social relations. Governors, lawmakers, and magistrates “used” the
law to constrain aberrant behavior in order to ensure the peace. (In Calvin’s formulation, the civil
law guarantees one’s “citizenship” with one’s neighbors and allows one to live “holily,
honorably, and temperately.”
34
) In contrast, divine law, God’s law, the laws mandated in the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
31
Ibid., Sig. A5v.
32
MacCulloch observes that “two contradictory impulses ran through Luther’s thinking on authority, and
he never really resolved them. On the one hand, he wanted desperately to secure the support of the princes, and on
the other, he was concerned to make sure that godly reformation was not threatened by unsympathetic princes” (The
Reformation, 157).
33
Whiting, Luther in English, 9.
34
Compare Luther’s division to Calvin’s discussion of the “two kingdoms”: “let us first consider that there
is a twofold government in man: one aspect is spiritual, whereby the conscience is instructed in piety and in
reverencing God; the second is political, whereby man is educated for the duties of humanity and citizenship that
must be maintained among men. These are usually called the ‘spiritual’ and the ‘temporal’ jurisdiction (not improper
57
Decalogue, functions to “accuse consciences of sin.”
35
Divine law acts as a reminder of man’s
fallen nature. For Luther, recognizing of one’s depravity brings fear and terror—an existential
crisis which drives the soul towards contrition.
36
Divine law forces individuals to study their sins
and imminent mortality. Reduced to an abject, almost despairing state, the individual turns to the
Gospel for comfort. For Luther, the law “lightneth the conscience that it may know sinne,” and
this process is marked by psychic distress.
37
Once the Christian gains awareness of his sin, he
looks to God for salvation. Commenting on Paul’s letters, Luther argues that:
The Chiefe and pryncipal office, or power of the law is, that she openthe originall
synne with al her frutes, and shewe unto man, how depely his nature is fallen, and
howe miserably it is destroyed.
38

As he makes clear in the passage, the “end” of God’s law is not to act as a form of deterrent (that
is the work of the civil law) but to stir the conscience and instill in individuals a dose of godly
fear. The law serves to remind individuals of their “originall synne” and this, in turn, brings
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !
terms) by which is meant that the former sort of government pertains to the life to the soul, while the latter has to do
with the concerns of the present life—not only with food and clothing but with laying down laws whereby a man
may live his life among other men holily, honorably, and temperately” (Jean Calvin, Institutes of the Christian
Religion. Vol. 1: Books I.i to III.xix, ed. John T. McNeill, trans. Ford Lewis Battles, vol. 1 [Philadelphia:
Westminster, 1960], 3.19.15.847).
35
Whiting, Luther in English, 9.
36
For further discussion of Luther’s “despair-salvation” paradox, see Thomas M. McDonough, The Law
and the Gospel in Luther: A Study of Martin Luther’s Confessional Writings (Oxford: Oxford University Press,
1963).
37
Martin Luther, A Commentarie of M. Doctor Martin Luther upon the Epistle of S. Paul to the Galathians
(London, 1575), Sig. U2r. This translation of Luther’s Galatian Commentary (1535) was reprinted seven times
between 1577 and 1644. See J. Wayne Baker, “Sola Fide, Sola Gratia: The Battle for Luther in Seventeenth-
Century England,” The Sixteenth Century Journal 16, no. 1 (1985): 116.
38
Martin Luther, The Chiefe and Pryncypall Articles of the Christen Faythe, to Holde Againste the Pope,
and Al Papistes, and the Gates of Hell, trans. Walter Lynne (London, 1548), Sig. [C5]r.
58
recognition of their depravity. To be saved, the individual is first reduced to a state of
helplessness and anxiety (“fearfull…abashed, desperate”).
39

For Luther, conversion and salvation are impossible without, first, a spiritual crisis. It is
the law which triggers this crisis:
Law in true Christian Divinitie is, to make men, not better but worse: that is to say, it
sheweth unto them their sinne, that by the knowledge thereof they may be humbled,
terrified, brused and broken, & by this meanes may be driven to seeke comforte, and
so to come to that blessed Seede.
40

Here, Luther explains that the law helps to expose the sinner’s many infractions. The law is thus
said to “increaseth” sin. Once the individual grows truly “fearfull” and “desperate,” he or she is
faced with a choice: whether to continue down the path of ruination or to seek God’s mercy. This
is the painful deliberation staged in Christopher Marlowe’s Doctor Faustus. Throughout the
play, Faustus strives to forsake evil—“I’ll leap up to my God!” (he declares)—yet falters when
he recollects his past transgressions.
41
Up to a point, Faustus’s fate mirrors that of Luther’s
construction of a conscience-stricken Protestant. Like Faustus, the Protestant grapples with his
sins. Yet unlike Faustus, the Protestant ultimately rejects despair, overcomes doubts, abandons
the wrong path (i.e. Catholic beliefs and practices), and turns to God for comfort and correction.
From sin to salvation, from fear to comfort, from darkness to light, from Law to Gospel—these
are the dynamic operations structuring Luther’s soteriological-jurisprudential imaginary.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
39
McDonough explains the paradox in Luther’s writings on the law and the Gospel: “the exigencies of the
Law reveal to him the depth and extent of his sinfulness; in falling short of the mark set by God, in failing to keep
the Ten Commandments, he becomes aware of his moral impotence and of the fact that he is hopelessly damned by
God's justice. This causes in him black sorrow and frustration of soul; he despairs totally in self, even to the point of
blasphemy; but at this very point of absolute despair, the sinner is ripe for salvation” (The Law and the Gospel in
Luther, 1–2).
40
Luther, A Commentarie...Galathians, Sig. U[2]r.
41
Christopher Marlowe, Doctor Faustus A-Text, in Doctor Faustus and Other Plays, ed. David Bevington
and Eric Rasmussen (Oxford: Clarendon, 1995), 5.2.59.
59
According to Luther, Catholics mistakenly attributes salvation to good works. This is a
misguided application of Aristotelian distributive justice.
42
Moral “perfection” may never be
achieved through human actions alone for man is a fallen creature. For Luther, “we are all born
and die in iniquity, that is, in unrighteousness, and we are righteous only by the reckoning of a
merciful God through faith in his word.”
43
Thomas McDonough observes that Luther wholly
rejects “self-reliance, personal merit, or dependence on works as means to salvation.”
44
Luther
argues that Christ’s sacrifice on the cross enables man to “enter into a gracious relationship with
God.”
45
Luther calls this the theology of the cross (theologia crucis) and explains, with reference
to Paul, that “[w]e suppose that a man is justifyed by faith, withoute the dedes of the lawe” for
they are “justified frelye withoute deserving, by his grace through the rede[m]pcion of Jesu
Christe in his bloude, &c. Roma.iij.”
46

Like Luther, Foxe recognizes law’s double functions.
47
Law exists to regulate social
relations, yet its primary function is spiritual—to make individuals perceive their transgressions.
In a passage strongly recalling Luther, Foxe argues that just as Paul was “striken downe, before
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
42
Alister E. McGrath, Luther’s Theology of the Cross (Oxford: Blackwell, 1985), 113.
43
Luther qtd. in ibid., 136.
44
McDonough, The Law and the Gospel in Luther, 2.
45
McGrath, Luther’s Theology of the Cross, 20.
46
Luther, Articles, Sig. [A7]v.
47
During the reign of Edward VI, after the passage of Act for the Repeal of Certain Statutes on 21 Dec.
1547, Foxe translated Luther’s sermon Eine Predigt von den Engeln (On the Angels), making him one of the earliest
translators of Luther. Moreover, Foxe claimed more translators were needed to promote the
readynge of many other excellent bokes in this tonge wryten & namely of Marten Luther, whose
bookes I judge very expedyent and also necessary in Chrystes churche, bothe for the most swete
consolacions in them conteyned, & farther for openynge of many mysteryes, moche convenyent to be
knowen of every christen man. (A Frutfull Sermon, Sig. Aiir).
The publication of Acts and Monuments provided Foxe another occasion to praise Luther. Luther was a “reverend
father” who helped to inaugurate the “full reformation of his [God’s] churche” (Foxe [1583] 284, 865). On Foxe’s
publications during the reign of Edward VI, see Edward J. Baskerville, A Chronological Bibliography of
Propaganda and Polemic Published in England between 1553 and 1558: From the Death of Edward VI to the Death
of Mary I (Philadelphia: American Philosophical Society, 1979), 4; John N. King, “Freedom of the Press, Protestant
Propaganda, and Protector Somerset,” Huntington Library Quarterly 40, no. 1 (1976): 1–9.
60
hee was lyfted up,” so believers should be reduced to a state of “infirmitye” by the law in order
to be “dryve[n]” to Christ (Foxe [1583] 144):

They [i.e. Catholics] erre in the cause of good works, so do they erre much more in
the ende of the lawe, and of good workes: for where Saint Paule teacheth the lawe to
be gyven to thys use and ende, to convict our transgressions, to proove us sinners, to
shewe and condemne our infirmitye, and to dryve us to Christ: they take and applye
no other ende to the lawe, but to make us perfect, to keepe us from wrath, and to
make us just before God (Foxe [1583] 49).
In the passage, Foxe argues that “they” are wrong to believe that the law exists only to curtail
immoral behavior—to “make us perfect.” Foxe concedes that Catholics correctly “assigne to
Christ the begynning of salvation, or obteyning of the fyrst grace.” Yet he argues Catholics are
wrong to assert the possibility of attaining “the perfection or co[n]su[m]mation of grace” in
“works & our own stre[n]gth” (Foxe [1583] 49). Additionally, Foxe accuses Catholic authorities
of failing to understand the full meaning of the “benefite of Christ,” specifically, that Christ died
to save man. When Catholics “attribute unto works a great or the greatest part of our
justification,” they forget Christ’s sacrifice on the cross.
In Acts and Monuments, Foxe claims Catholics persist in their perverse persecutions
because they “lacke…knowledge and true feare of God” (Foxe [1583] 49). In contrast,
Protestants follow the right path because they possess the right degree of godly fear. Indeed,
Foxe reminds readers that godly fear is indoctrinated in believers at an early age. Foxe praises
the pious Thomas Haukes (or Hawkes) for requiring his friend Clement Throgmorton to raise his
son as a good Protestant: “see hym brought up in the feare of the lord, and instructed in the
61
knowledge of his holy word, that he may thereby learne to leave the evill and know the good”
(Foxe [1583] 1618).
By classifying bashfulness and fearfulness as signs of spiritual enlightenment, Luther
equips Protestant dissenters with logics to challenge the legal legitimacy of their examiners.
Following Paul’s teachings, Luther associates Catholics with Paul’s “Jews” and “Greeks,” men
who account themselves wise but, in reality, lack understanding of the “wisdom of God.”
48
Thus,
familiar biblical passages transform into political weapons. Passages such as “the testimonie of
the Lord is sure, and giveth wisdome unto the simple” (Ps. 19:7), the “fear of God is the
beginning of wisdom” (Ps. 111:10), “[f]or that they hated knowledge, and did not choose the fear
of the Lord” (Prov. 1:29) are used by Protestants to subvert Catholic authority. They portray their
opponents as “fools” whose lack of fear, wisdom, and knowledge invalidate their right to judge
others.
The division of the “wise” and “unwise” is especially sharp in polemical treatises. In his
reply to Henry VIII, Luther explains that “when I exclaim: The Gospel, the Gospel, Christ,
Christ; they reply, The Fathers, the Fathers, use, use, statute, statute!”
49
In the treatise, Luther
depicts the scholiast or biblical commentator as the “fool” and celebrates sola scriptura:
unmediated reading of the Bible. Similarly, in his Christian Liberty, Luther views scholastic
learning a sign of spiritual corruption: “I am thereof able to treat (though not so eloquently, yet
certes more substantially) than those literall and over subtill schoolemen have hitherto yet
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
48
Paul prophesized that the wisdom of the “pagans” and the Jews would account for nothing for God
planned to “destroy the wisdome of the wise” (1 Cor. 1:19), and that “wee preach Christ crucified, unto the Jews a
stumbling block, and unto the Greekes, foolishnesse” (1 Cor. 1:23).

According to McGrath, “a new interest
developed in the writings of St Paul…due at least in part to the considerable influence of the Italian humanism of the
Quattrocento, with its celebrated intention to return ad fontes, to base itself upon the title deeds of Christendom,
rather than its later medieval expression” (Luther’s Theology of the Cross, 14).
49
Martin Luther, Luther’s Reply to King Henry VIII, trans. E. S. Buchanan (New York: Swift, 1928), 4.
62
disputed, as men altogether ignorant in the things which themselves have written.”
50
For Luther,
the origin of wisdom lies in prayer and faith.
Many heeded Luther’s call and died protesting. Yet Luther himself was not harmed
thanks in large part to royal patronage. His lack of martyrdom troubled him. In 1527, he stopped
working and suffered “deep depressions and even fainting spells.”
51
Soon after, reflecting on the
martyrdom of Kayser, a Bavarian martyr, Luther wrote, “[h]ow it shames me when I read this
story that I had not long ago been found worthy to suffer the same. After all, I was ten times
more deserving of it in the world’s eyes.”
52
There is little reason to doubt the sincerity of
Luther’s self-excoriation. Yet in publicizing his inward struggle, Luther also advances his
performance of the “wise,” penitent man. Luther’s ritual of self-examination, which he recorded
in letters to supporters or in his publications, links pain with knowledge. Out of this body of
writing emerged the logic of affective jurisprudence.
2. The Performance of Affective Jurisprudence
Having delved into the theoretical underpinning of affective jurisprudence, and having
also begun to explore the performativity which goes in hand with the theory, I now turn to
Foxe’s Acts and Monuments to examine how ordinary English Protestants employed affective
jurisprudence to undermine Catholic authority during Marian heresy trials. The themes central to
Protestant political writing—lawful obedience, justified resistance, the relationship between
knowledge (or wisdom) and authority—are dramatically staged in heresy trials. In Foxe’s
presentation of the face-to-face encounters between Protestant defendants and Catholic
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
50
Luther, A Treatise, Touching the Libertie of a Christian, Sig. Civ.
51
David Bagchi, “Luther and the Problem of Martyrdom,” in Martyrs and Martyrologies, ed. Diana Wood
(Oxford: Blackwell, 1993), 212.
52
Luther qtd. in ibid.
63
commissioners, the former put theory into practice. Defendants debate their examiners not only
on religious doctrine but also on points of legal procedure.
It goes without saying that the heresy commissioners were a learned group. Many were
trained in the civil law. Yet in Acts and Monuments, that learning is cast as “false.”
Unsurprisingly, Foxe takes the side of the Protestant examinees. He enhances the examinees’
claims through a combination of blunt and subtle rhetorical strategies. For example, he engages
in ad hominem attacks: “Papistry” is a “damnable doctrine” (Foxe [1583] 2136). But he also
steps back (metaphorically) to allow the text to unfold without obvious editorial assistance.
Acts and Monuments captures not only the physical suffering of Protestants but also the
structure of their arguments. These arguments, as many scholars observe, reveal a “determined
reliance upon Scripture.”
53
In general, the defendants construct legal defenses from biblical
parables, verses, and proverbs. The similarity among the various defenses suggests that the
responses had become conventionalized by the sixteenth century and that these conventions were
transmitted from one generation of Protestants to the next by oral or textual means. Previously, I
discussed the rhetorical strategies of laywomen such as Askew and Elizabeth Young in their
heresy examinations.
54
I concluded that their responses to potentially self-incriminating
questions followed an established formula set by earlier religious dissenters such as the Lollards
in the early fifteenth century.
A limited number of the accused heretics were professionally trained in the law. But even
these lawyer-martyrs, despite their ability to match—or, in some cases, exceed—the legal
expertise of the examiners, wore their professional ethos lightly. Indeed, John Philpot, whose
examination I will discuss in greater detail, at one point distanced himself from his professional
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
53
Knott, Discourses of Martyrdom, 50.
54
Penelope Geng, “Before the Right to Remain Silent: The Examinations of Anne Askew and Elizabeth
Young,” The Sixteenth Century Journal 43, no. 3 (2012): 667–79.
64
training: “I sayd not I was a Lawyer” (Foxe [1583] 1823). In the majority of the legal encounters
recorded by Foxe, a lack of technical knowledge of the law did not constitute a handicap. Lay
defendants claimed to understand the only law which truly mattered: God’s law.
In Foxe’s telling, even as defendants insist on the primacy of the divine law, they try to
negotiate the terms of their arrest using the temporal laws. Askew’s examinations are
illuminating in this regard. She insists on pointing out the inconsistencies in the officials’
treatment of her. For example, she argues that if her examiners have not personally witnessed
women “go into the pulpit & preach,” they should “finde no faute in poore women, except they
had offended the lawe” (Foxe [1563] 726). On another occasion, she demands that they produce
her accusers: “for I knowe not as yet” (Foxe [1563] 727). She invites them to reveal their
witnesses—“I pray you bring them furth”—and predicts that “none [is] able to prove any
dishonestie by me” (Foxe [1563] 728). In another instance, she notes that the officials fail to
release her despite the appearance of her “sureties,” or personal guarantors. Askew reasons she
should have been “put to Bayle immediatlye” (Foxe [1583] 1261). Instead, she is sent back to
prison. By her reckoning, this is done contrary to the “order of the lawe” (ibid). Askew’s
commentary displays the extent of her knowledge of the rights and privileges available to
defendants in heresy examinations.
Asked potentially self-incriminating questions, defendants counter by challenging their
examiners’ legal authority. They accuse their examiners of acting arrogantly, without godly fear,
and of fundamentally misconstruing the meaning of “God’s law.” An argument between Edmund
Bonner, the bishop of London, and his examinee, John Philpot, a former archdeacon of
Winchester, is a case in point. Philpot tells Bonner: “I perceive your law and Divinity is all
one…for you have knowledge in neither of them: and I woulde ye did know your owne
65
ignoraunce” (Foxe [1583] 1851). The bishop’s lack of knowledge, according to Philpot, is
proven by his reliance on “glosses.” Such direct refutation of Catholic authority often proved
destructive for the individual, but then saving his or her skin was not the point. The devout
Christian actively sought opportunities to suffer for his or her faith.
55

In Acts and Monuments, we witness all kids of people employing their knowledge of
“God’s law” in order to subvert their examiners’ legal authority. The performances of Foxe’s
martyrs help us to see how Protestant theology spurs a particular form of popular jurisprudence.
Foxe’s book shows ordinary people inventing their own moral (religious) authority in order to
attack what they perceive to be the false authority of the Catholics. This is a markedly different
form of parrhesia—frank speech—which appears in classical republican literature. In the
classical tradition, frank speech is linked to the male and aristocratic subject.
56
Classic examples
include Demosthenes or Cicero speaking before political assemblies (formed of male peers)
during times of political emergencies. In contrast, the “truth” witnessed by the martyrs is
religious; they are conducted through religious passions.
The passions displayed during examinations by examiners and examinees denote the
parties’ varying degrees of wisdom. To prove they possess the greater share of the understanding
of God’s law, the examinees display several kinds of affective signs: sighing, trembling, and
crying.
57
Physical symptoms such as sleeplessness, tremors, and tears also manifest inward
contrition and knowledge. Inner “wracking” by conscience ultimately produces spiritual wisdom,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
55
On the discourse and performance of suffering in Foxe’s book, see Knott, Discourses of Martyrdom, 81.
56
On the politics and representation of frank speech in early modern English literature see David
Colclough, Freedom of Speech in Early Stuart England (Cambridge: Cambridge University Press, 2005).
57
Later in the period, William Perkins’s popular The Golden Chain (1592) trains readers to associate
“worrisome” “affective symptoms” with salvation, testifying to the enduring power of Acts and Monuments and
other early Protestant literature (Lori Anne Ferrell, “Transfiguring Theology: William Perkins and Calvinist
Aesthetics,” in John Foxe and His World, ed. Christopher Highley and John N. King [Aldershot: Ashgate, 2002],
168, 175).
66
the a priori condition for all other forms of knowledge including jurisprudence. At the same
time, they draw attention to the Catholic examiners’ choler, belligerence, and other displays of
“moody violence,” which they take to be “proof” of their lack of knowledge of God.
58
Each
emotional turn, whether on the part of the examiner and examinee, reveals an excess or paucity
of knowledge.
Foxe illustrates the dialectic of fear and wisdom in the story of the martyr John Glover of
Litchfield who lived through the reign of Henry VIII.
59
After an initial taste of “knowledge of the
gospel,” and upon learning that those who “fall away” from “the heavenly gift” are damned,
Glover begins to “misdoubt hymselfe.”
60
He obsesses over the question of his redemption. Soon,
“terrors, boylings, & convulsions” afflict “his wofull brest” and his “spirit” is consumed with
“boyling heates of the fire.” Glover succumbs to a barrage of “intollerable griefes of mynd” and
he is quickly reduced to a shadow of his former self: so “worne” and devoid of “senses” that he
seems more dead than alive. Then, all of a sudden, Glover recovers his equanimity and health.
Foxe does not explain how, when, or why the wracking of conscience ceases. Foxe simply states
the “Lord” removed Glover’s “discomfort” so that he could spend the rest of his days in “godly
study” and “Saboth rest” (Foxe [1583] 1733).
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
58
Foxe gives many examples of choleric examiners. For example, “Berry,” a commissioner who examines
John Hudson, “stamped, fumed, and shewed himself as a mad man” (Foxe [1583] 2059). The bishop of Lincoln,
John Longland, “sitting upon his tribunal-seat” showed “his moody violence upon the poor flock of Christ” (Foxe
qtd. in Knott, Discourses of Martyrdom, 62).
59
Susannah Brietz Monta observes that Glover’s story imparts a “benevolent predestinarian catch-22” in
which “Foxe claims that John’s self-doubts testify to his fear of God and that his endurance despite tormenting
doubt means that he must have sometimes enjoyed that all-important comfort, election’s sure sign” (Martyrdom and
Literature in Early Modern England [Cambridge: Cambridge University Press, 2005], 18, original emphasis).
60
Foxe cites the beginning of the passage; “For it cannot be that they which were once illumined, and have
tasted the heavenly gift, &c.” ([1583] 1733). The full passage reads, “For it is impossible for those who were once
inlightned, and have tasted of the heavenly gift, and were made partakers of the holy Ghost, And have tasted the
good word of God, and the powers of the world to come; If they shall fall away, to renue them againe unto
repentance” (Heb. 6:4-6).
67
Glover’s story helps to illustrate two Protestant tenets: the mystery of God and man’s
dependence on God for succor. Neither Glover nor a priestly intercessor could have shortened
his suffering. Indeed, Foxe praises Glover for embracing such tribulation for it marks the
beginning of his spiritual renewal. To guide readers towards the “correct” interpretation of
Glover’s story, Foxe prints the following adage in the margin: “no griefe lyke to the griefe of
conscience” (Foxe [1583] 1733). By enduring—and surviving the torture inflicted by a guilty
conscience—Glover gains the title of a “double martyr” (Foxe [1583] 1733). According to Foxe,
Glover’s “manifold afflictions” and “grevous passions” endow him with a “deeper taste and
contemplation of spirituall thyngs” (ibid). This reading draws from the biblical maxim, “[f]or in
much wisedome is much griefe: and hee that increaseth knowledge, increaseth sorrow” (Eccl.
1:18).
Whereas Glover’s story is concerned with the spiritual progress of the individual in the
journey towards attaining wisdom, the story of Thomas Cranmer, the archbishop of Canterbury,
shows how entire congregations may participate in the journey through a sharing of godly
“grief.” During his trial in March 1556, Cranmer, who had earlier recanted his faith, suffers a
“greate griefe of minde” which he expresses in “outwarde shewes of hys bodye” (Foxe [1583]
1910). Cranmer raises his head heaven-ward and begins to weep uncontrollably: “[m]ore then
twentie severall times the teares gushed out aboundantly” (ibid). Next, he “lift[ed] uppe hys
handes and eyes unto heaven, and then agayne for shame letting them downe to the earth” (ibid).
Cranmer’s performance stirs the audience; soon, they begin to “cry out, yalpe, and baule” (Foxe
[1583] 1911). The outpouring of emotions is infectious. Those who are too far away to hear
Cranmer’s words are near enough, emotionally, to weep with him. Foxe’s vivid, even cinematic,
68
descriptions permit readers to imagine themselves as a member of that original audience, to feel
afresh the “grief of mind” which comes with divine knowledge.
Cranmer’s gushing tears create a discord—a rupture—between the people and the
Catholic authorities, for the crowd appears to intuit the perversion of justice by correctly
interpreting Cranmer’s lament. The story therefore not only underscores the doctrine of wisdom-
in-fear, but also the political utility of the performance of that doctrine. Like the theorized
subjects of contemporary affect criticism who resist political injustice by “not getting along,”
Cranmer and the crowd perform their dissent by unleashing a torrent of “gushing” tears. In the
Ciceronian tradition, it is assumed that political society is the natural outcome of man’s “civil”
instincts: “human beings…exercise their skill together in action and thought because they are
naturally gregarious.”
61
This ideology remains a structuring principle of the modern political
discourse. Societies require their citizens to subdue troubling emotions such as anger or
frustration—or sadness—which subvert the “end” of sociality which is communal happiness
(eudaimonia). Killjoys and malcontents are stigmatized for their seemingly antisocial behavior.
Foxe’s martyr and contemporary “affect aliens” intersect in their use of negative emotions to
score political points.
62
Cranmer and the crowd’s emotional solidarity constitutes a speechless
form of protest. The scene subverts the classical portrait of the parrhesiaste who exposes himself
to the wrath of the authority by speaking the truth. Instead of speaking their protest, Cranmer and
his supporters express it through their tears.
In teaching readers to identify godly fear with wisdom, Foxe takes care to distinguish
godly fear from natural fear or fear of harm. The former signifies spiritual enlightenment while
the latter underscores man’s animalistic instinct for survival. The division between godly and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
61
Cicero, De Officiis, trans. Walter Miller (Cambridge, MA: Harvard University Press, 1913), 1.44.
62
Sara Ahmed, “Happy Objects,” in The Affect Theory Reader, ed. Melissa Gregg and Gregory J.
Seigworth (Durham, NC: Duke University Press, 2010), 39.
69
natural fear is not unique to the Protestant tradition. For example, in the discussion of the “gift of
fear,” Aquinas defines “chaste or filial fear” as the beginning of wisdom “caused by love.”
63
In
contrast, filial fear is a “principle disposing a man to wisdom from without, in so far as he
refrains from sin through fear of punishment, and is thus fashioned for the effect of wisdom.”
64

On the “drede of god,” the fourteenth-century English divine Richard Rolle lists “thre kyndes of
drede ben moost nedefull for to knowe. The fyrst is drede of man or drede of the worlde. The
second is called drede of servage. The thyrde is called a chasted drede or a frendley drede.”
65

Despite the overlaps between the Catholic and Protestant discussion of divine and natural fear,
for political reasons, Protestant writers choose to highlight doctrinal differences.
Foxe’s description of the execution of Anne Askew exemplifies the different modes of
fear. At her execution, Askew is preternaturally calm. Asked to recant, Askew “refus[es]” to
even glance at the paper containing her pardon (Foxe [1583] 1264). Her calm demeanor stands in
contrast to the agitation of the onlookers. According to Foxe, as “Wrisley Chauncellour of
England, the old Duke of Norfolke, the olde Earle of Bedford, the Lord Mayor wyth dyuers other
moe” assemble to witness the executions, one of them gets the idea that a barrel of gunpowder
lies hidden under the fagots, which, when lit, would promptly “flieng” wood and splinters “about
their eares” (Foxe [1583] 1264).
66
Panic ensues; the nobles and officials “began to be afraid”
(ibid). Foxe implies that there is nothing spiritually enriching in the officials’ mortal fear.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
63
Saint Thomas Aquinas, Summa Theologiae, ed. Brian Davies (Cambridge: Cambridge University Press,
2006), 2.2.7.
64
Ibid.
65
Richard Rolle, Rycharde Rolle Hermyte of Hampull in His Contemplacyons of the Drede and Love of
God with Other Dyverse Tytles as It the Weth in His Table (London, 1519), Sig. [A6]r.
66
Namely, Thomas Wriothesley (1505–1550), Thomas Howard (1473–1554), Francis Russell (1526/7–
1585), and Martin Bowes (1496/7–1566). Monta observes that in the accompanying woodcut, the soldiers wear
Roman dress while thunder hovers above the spectacle as if to signify “God’s disapproval of revived Roman
tyranny” (Martyrdom and Literature, 62).
70
There is a special term to describe Askew’s affect on that day: apatheia. This word
designates the attainment of spiritual enlightenment. The apathetic martyr is liberated from the
conscience-torturing passions—fear, grief, and sorrow. To quote Collinson, apatheia signifies “a
mean between foolish temerity and despicable cowardice” in the face of torture or death.
67
In
Knott’s analysis, apatheia is the dominant trait exemplified by the first Marian “protomartyr”
John Rogers, who dies with “patience, constancy, and cheerfulness.”
68
Apatheia does not denote
a lack of emotion but a joyful expectation of the rewards of heaven. For example, moments
before her execution, Joyce Lewes (a Marian martyr) displays “a cherefulnes that…passed mans
reason, being so well colored in her face, & so pacient.” Her performance moves the onlookers,
her neighbors in Lichfield (at least, the ones with “honest hartes”) to “lament, and even with
teares bewayle the tyranny of the papistes” (Foxe [1563] 1632). It should be noted that the same
affect, when displayed by a Catholic martyr, is negatively interpreted by Protestant
commentators. Thus, in Holinshed’s Chronicles, Thomas More’s cheerfulness in the face of
death is glossed as indecorous: “God had in most bountifull sort powred his blessings upon this
man, induing him with eloquence, wisedome and knowledge: but the grace of God withdrawne
from him, he had the right use of none, no not of reason as it should be rightlie used.”
69

Thus far, I have focused on outward signs of wisdom (trembling, sleeplessness, crying,
etc.). Yet the analysis would be incomplete without an attempt to understand how godly fear is
performed at the level of language: in the use of simple, proverbial idioms, metaphors, and
images. To emphasize submission to God, Protestants employ simple and self-effacing language.
This strategy appears in the early Protestant texts. In a sermon to his congregation, Luther
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
67
Collinson, “Truth and Legend,” 174.
68
Knott, Discourses of Martyrdom, 31, 16.
69
Raphael Holinshed, Chronicles of England, Scotland, and Ireland (Oxford, 2013), 938,
www.cems.ox.ac.uk/holinshed.
71
referred to himself as a “bloke” (“kerl”), who “slept, and drank beer with Melanchthon and
Amsdorf.”
70
Luther’s homely and self-deprecating diction underscores his belief in the existence
of parity among believers. Speaking in the vernacular not only allows Protestants to
communicate revolutionary agendas to the widest possible audience, but, perhaps more
importantly, it also reinforces the theological difference between Protestantism and Catholicism:
the former adheres to God’s word, the latter, to glosses. In Acts and Monuments, those who quote
Latin dicta or boast scholastic learning are, invariably, Catholic “oppressors.” Their reliance on
scholastic learning and syllogistic reasoning are associated with tyranny and deceit.
Lay examinees are very successful at manipulating the linguistic difference. Asked by an
examiner to express her opinion on transubstantiation, Askew deflects by arguing “I was but a
woman, and knew not the course of scholes” (Foxe [1583] 1259). Yet to her sympathizers
(arguably the target audience of her text), her lack of scholastic credential actually validates her
claim to superior wisdom. Her knowledge is deep and true and the examiner’s is doctored in
every sense of the word. The responses of defendants less educated than Askew demonstrate
even more effectively the notion of wisdom-in-simplicity. For example, in her 1558 examination,
a “Deane” calls the Londoner Elizabeth Young (an illiterate smuggler of Protestant literature) a
“foole” and he asks her, “[d]oest thou thynke that I am better learned then thou?” She readily
admits that he is her superior in “learn[ing]” (Foxe [1583] 2094). However, the ensuing
conversation reveals the opposite to be the case. Like Askew, Young appears wiser than her
examiners for espousing the Pauline ideal of “simplicity that is in Christ” (2 Cor. 11:3).
From the editorial sidelines, Foxe draws attention to the piety and wisdom of the
Protestants through evocative dichotomies: the martyrs are likened to lambs and the inquisitors
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
70
Luther qtd. in Michael A. Mullett, Martin Luther (London: Routledge, 2004), 142.
72
to wolves. This comparison may be traced to biblical passages such as Ps. 44:22, “Yea, for thy
sake are we killed all the day long; we are counted as sheep for the slaughter.”
71
Foxe declares
that the martyrs of Lucerne are the “poore people [who] were alwayes as the seely sheepe in the
Woolves jawes, or as the shepe which are ledde unto the slaughter house” (Foxe [1583] 981).
The seven martyrs of Canterbury are the “simple poor lambs of the glorious congregation of
Jesus Christ.”
72
The six men of Brainford are “good poore lambes…kept them in safetie [i.e.
prison] till the daye of their deathe” (Foxe [1583] 2066). Julins Palmer, a “sometime fellow of
Magdalene Colledge in Oxford,” is “led away as a lambe to the slaughter” (Foxe [1583] 1958,
1961). In contrast, the Catholics (of Lucerne) are “Woolves” which “apprehende the poore
Christians either by night, or early in the morning, or in the high way going to the market.” This
pack is led by a “Provost de la Justice…a cruell and crafty wretch” (Foxe [1583] 981). The word
“crafty” contains the pejorative sense of “skilful, dexterous, clever, ingenious.”
73
Palmer’s
“Keeper” is likened to a “ravening Wolfe greedie of his praie” (Foxe [1583] 1961). The
wolf/lamb image becomes an established trope in the religious literature of Tudor and Stuart
England. The title page of Timothy Bright’s An Abridgement of the Actes and Monumentes, the
more accessible (and cheaper) version of Foxe’s book, features a version of the image.
74
Richard
Haklyut, the travel writer, compares Spanish conquistadors to “wolves,” “lyons,” Tigres,” who
“teare them [Indians] in peces, kill them, martir them, afflicte them, tormente them and destroye
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
71
The Bible qtd. in Margaret Aston and Elizabeth Ingram, “The Iconography of the Acts and Monuments,”
in John Foxe and the English Reformation, ed. David Loades (Aldershot: Scolar, 1997), 76.
72
Foxe qtd. in Ramona Garcia, “‘Most Wicked Superstition and Idolatry’: John Foxe, His Predecessors and
the Development of an Anti-Catholic Polemic in the Sixteenth-Century Accounts of the Reign of Mary I,” in John
Foxe at Home and Abroad, ed. David Loades (Aldershot: Ashgate, 2004), 85–6.
73
“Crafty, adj.,” OED Online, March 2013.
74
Timothy Bright, An Abridgement of the Actes and Monumentes (London, 1589). Bright explains that his
abridgement serves the needs of cash-strapped readers: the “largnes of the volume, and great price” of Foxe’s text
prevents many readers from receiving the promised “benefite” of the “large Booke.”
73
them by straunge sortes of cruelties.”
75
Nearly a century later, Milton utilizes the trope to
commemorate the slain Waldensian martyrs, the “Sheep” whose “blood and ashes” plant the seed
for revolution in “th’Italian soil” against “Babylonian woe.”
76

In Protestant polemical literature, one of the most reviled figures during and after Mary’s
reign was Stephen Gardiner, the bishop of Winchester.
77
A theologian and lawyer, Gardiner was
attacked for his eloquence. In The Lambe Speaketh, why do you crucifie me (engraved sometime
between 1553 and 1555 and first printed in Germany), Gardiner is depicted as a wolf garbed in
clerical clothing, biting the neck of a sacrificial lamb (Fig. 1). At his feet lie six lambs, identified
by the artist as Thomas Cranmer, Nicholas Ridley, John Hooper, Hugh Latimer, John Bradford,
and John Rogers.
78
In the anti-Gardiner pamphlet The Huntyng of the Romyshe Wolfe (1555), the
author and “doctour of phisik” William Turner interprets the proverb, “Homo homini Lupus, a
man is a Wolfe unto a man,” as speaking to Gardiner’s persecution of English Protestants: “he
that is a killer of his brother, as Gardiner is, may wel be called a wolfe.” Turner predicts the
doom of England if Gardiner continues to serve on the Queen’s privy council. Finally, Turner
concludes with the following warning: “[t]he propertie of a Wolfe is, that if a man se the Wolfe
afore the Wolfe se the man, that then a man shall not be dumme.”
79

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
75
Hakluyt (following an original text by Bartolomé de las Casas) qtd. in Francisco J. Borge, “‘We (Upon
Peril of My Life) Shall Make the Spaniard Ridiculous to All Europe’: Richard Hakluyt’s ‘Discourse’ of Spain,” in
Richard Hakluyt and Travel Writing in Early Modern Europe, ed. Daniel Carey and Claire Jowitt (Farnham:
Ashgate, 2012), 171. I am grateful to Felicity Stout for this reference.
76
John Milton, The Riverside Milton, ed. Roy Flannagan (Boston: Houghton, 1998), 255.

On April 24,
1655, an army of French and Irish troops commanded by the Duke of Savoy slayed a number of Waldensians (alt.
Vaudois) in the Piedmont region of Italy.
77
One of his Protestant critics, John Bale, calls Gardiner the “Great Caiaphas of Winchester” qtd. in Basil
Hall, “The Early Rise and Gradual Decline of Lutheranism in England (1520-1600),” in Reform and Reformation:
England and the Continent c.1500-c.1750, ed. Derek Baker (Oxford: Blackwell, 1979), 103.
78
For an analysis of the history of this image, see Rowena J. Smith, “The Lambe Speaketh...An English
Protestant Satire,” Journal of the Warburg and Courtauld Institutes 61 (1998): 261–67.
79
William Turner, The Huntyng of the Romyshe Vuolfe (Emden, 1555), Sig. [E5]r. Turner’s words were
heeded by at least one reader; the Huntington Library’s copy (RB 45282) is lightly marginalized.
74

Fig. 1. Anonymous, The Lambe Speaketh, c. 1554-5. British Museum.
75
According to Foxe, the lambs, though “silly,” are wise; the wolves, though cunning, are
benighted. When Foxe calls Protestants “silly”—as he does in his description of Eulalia, an early
Christian martyr and the aforementioned young Julins Palmer—he links a lack of rhetorical art to
spiritual wisdom and innocence. The OED defines “silly” as “deserving of pity,” “defenceless;
esp. of women and children,” “of animals, esp. as a conventional (poetic) epithet of sheep,”
“unlearned, unsophisticated,” “of humble rank or state,” as well as “lacking in judgement or
common sense; foolish, senseless, empty-headed.”
80
Foxe activates all the senses of the word
except the last.
Foxe’s sheep/wolf, silly/cunning binaries connect his text not only to the biblical tradition
and Protestant polemical treatises but also to ancient folk traditions. In Aesop’s fables, wolves
personify the malicious and specious tyrant. In Caxton’s retelling of the “fable…of the wulf and
of the lambe,” a wolf and a lamb find themselves drinking from the same river. The wolf is
hungry and wants to eat the lamb. He invents a reason. “Why hast thou troubled and fowled my
water / whiche I shold now drynke,” he asks. When the lamb points out that he is drinking at a
spot down the river and therefore does not technically drink the wolf’s water, the wolf concocts
another claim, which the lamb (again) disarms with simple yet irrefutable logic. After several
rounds of this, the wolf grows impatient: he “toke the lambe and ete hym.” The moral of this
tale, according to the narrator, is that “the evylle man retcheth not by what maner he may robbe
& destroye the good & innocent man.”
81
It is futile for the lamb to dispute with the wolf because
the latter is “evyll”—beyond the realm of rational discourse. When Foxe characterizes the
Catholics as wolves, he reduces them to the hellish monsters foretold in Revelations and, at the
same time, to the character of the tyrant found in the folk tradition. The wolf-tyrant is known
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
80
“Silly, adj., n., and adv.,” OED Online, December 2013.
81
R. T. Lenaghan, ed., Caxton’s Aesop (Cambridge, MA: Harvard University Press, 1967), 74.
76
primarily for his linguistic treachery and specious reasoning. Like Aesop’s wolf, the Catholic
inquisitor—Gardiner or someone very much like him—says one thing while meaning another,
uses false logic to split simple truths into complex lies, and, when his cunning is exhausted,
employs brute force to subdue the innocent.
Finally, when he compares Catholics to wolves, Foxe signals their foreign status.
According to the popular tradition, wolves did not exist in England. They had been common
during Anglo-Saxon times (January was known as “wulf-monath”), but men had hunted to
extinct in the fifteenth century.
82
John Fortescue states in De laudibus (written between 1468-
1471), “there are neither wolves, bears, nor lions, so the sheep lie by night in the fields without
guard in their cotes and folds.”
83
In his Description of England, William Harrison notes that
England is “void of noisome beasts, as lions, bears, tigers, pardes, wolves, and such like” so that
“our countrymen may travel in safety, and our herds and flocks remain for the most part abroad
in the field without any herdman or keeper.”
84
William Camden adds,
Wolves…were thought…to have beene ridde quite out of all England and Wales,
when King Eadgar imposed upon Ludwall Prince of these Countries to present three
hundred wolves yeerly unto him by way of Tribute. For, when, as William of
Malmsbury writeth, hee had for three yeeres performed this, at the fourth yeere, he
gaue over, upon his proteststation, that hee could finde no more. Yet long time after
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
82
“The abundance of wolves throughout England in pre-Norman days is borne witness to by the Saxon
name for January, namely, the wolf-month...The best authorities (such as Harting and Lydekker) consider that
wolves did not die out in England until the time of Henry VII, 1485-1509. The last wolf was killed in Scotland in
1743. Packs of Irish wolves were not exterminated until 1710, and the last solitary survivor was killed in 1770”
(John Charles Cox, The Royal Forests of England [London: Methuen, 1905], 31).
83
John Fortescue, De Laudibus Legum Angliae, ed. S. B. Chrimes (Cambridge: Cambridge University
Press, 1942), 69 (ch. 24).
84
William Harrison, Description Of Elizabethan England (London, 1577), 3.7, 12. Accessed 13 May 2013,
http://www.fordham.edu/halsall/mod/1577harrison-england.asp.
77
this, there remained some still, as appeereth for certaine, by irreprovable testimonies
of Record.
85

As these English writers are keen to point out, wolves existed on the continent and in the
hinterlands of Scotland and Ireland. According to Camden, wolves “haunt” and “annioy” parts of
Scotland and Ireland such as Strath-navern, “the utmost and farthest coast of all Britaine,” where
“the soile [is] nothing fertile.”
86
Harrison also points out that on the other side of the “Tweed,”
the land is populated with “greevous wolves” and “cruell foxes.” Shakespeare alludes to this
popular belief in having the Third Witch of Macbeth call for “tooth of wolf.”
87
Clearly then, the
semiotics of the lamb/wolf image in Acts and Monuments is rich and multi-dimensional. Foxe
activates religious, ethical, and moral discourses to achieve his political agenda.
As an editor, Foxe is able to accentuate details so they conform to his stark, apocalyptic
vision. Yet the individual cases themselves do not always fall neatly into his paradigmatic
imaginary. In these final pages, I explore how the issue of jurisprudential wisdom is complicated
by the presence of the lawyer-martyr. In Acts and Monuments, non-professional defendants—
artisans, yeomen, craftsmen, laborers, etc.—easily fit the paradigm. (An examiner is left
speechless when Elizabeth Young tells him she can read neither Latin nor English.) In contrast,
we see professionals, such as lawyers and churchmen, possessing ample education, having a
harder time performing “simplicity.” The examination of the civil lawyer John Philpot (1515/6–
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
85
William Camden, Britain, or a Chorographicall Description of the Most Flourishing Kingdomes,
England, Scotland, and Ireland, and the Llands Adioyning, trans. Philemon Holland (London, 1610), Sig. Kkk[1]r
(original emphasis).
86
Ibid., Sig. Eeee3v.
87
William Shakespeare, The Tragedy of Macbeth, ed. G. Blakemore Evans (Boston: Houghton, 1974),
4.1.22–34.
78
1555) offers insight into the learned defendants’ dilemma.
88
Throughout the examinations,
Philpot tries to hide his elite training. He is not always successful in this and his slippages reveal
the challenge of trying to balance two identities, the simple martyr and the silver-tongued lawyer.
John Philpot was an archdeacon of Winchester and civil lawyer educated at Oxford (like
John Wycliffe). After his arrest, Philpot was transported from Winchester to London. On 2 Oct.
1555, Philpot was summoned for the first of fourteen examinations. Edmund Bonner was
Philpot’s main examiner.
89
Like some of the other examinees in Foxe’s book, Philpot prepared
an autobiographical account of his trials and found a way to smuggle them out of prison (early
modern prisons being notoriously porous spaces).
90
At times, the lawyer in Philpot recedes to the
background. Yet, at other times, the reverse is true.
Philpot knew canon, civil, and common law. Friends and enemies alike acknowledged his
superior education and professional expertise. According to Foxe, “[i]n wit he was pregna[n]t
and happy,” and “[w]hat his learnyng was, hys owne examinations penned of hys owne hand can
declare” ([1583] 1819). After exchanging a few words with him, Edmund Bonner, bishop of
London, admits, “I perceive you are learned” (Foxe [1570] 2001). Another of Philpot’s
examiners, John Story, also trained in the civil law, recounts the jailer’s remark about Philpot—
“he was…one of the best learned in England.”
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
88
Knott calls Philpot’s story the “richest example of the drama of the examination” (Discourses of
Martyrdom, 63). For a detailed analysis of Philpot’s narrative, see Sarah Covington, “The Heresy Examinations of
John Philpot: Defiance, Bold Speaking, and the Making of a Martyr,” Reformation 7 (2002): 79–133.
89
Aside from Bonner, Philpot’s examiners include John Story, Sir Roger Cholmley, William Roper,
William Wyseman, William Cooke, Robert Johnson, Henry Cole, John Harpsfield, Edmund Cosin, Gilbert Bourne
(bishop of Bath), Richard Pate (bishop of Worcester), and James Brookes, bishop of Gloucester.
90
See the articles in William H. Sherman and William J. Sheils, eds., Prison Writings in Early Modern
England, Huntington Library Quarterly 72, no. 2 (2009). As Thomas S. Freeman observes in the introductory article
to the issue, some religious or political early modern English prisoners “enjoyed organized support” (“The Rise of
Prison Literature,” 135). And like other examinees, Philpot sought to control his posthumous image—he wanted to
be remembered as an exemplary Protestant and not as a lawyer. The line dividing “Philpot” the historic person and
“character” is ambiguous.
79
In 1553, after the ascension of Mary I, Philpot spearheaded a disputation against
transubstantiation at a convocation arranged by the Queen.
91
At his examination, Philpot argues
that the Queen and her council had given “liberty” to “every man of the house to utter hys
conscience, and to say hys minde freely of such questions in religion” (Foxe [1583] 2000).
Bonner dismisses this claim. While “Parlament house” indeed functioned as a “place of free
speech,” a man may still “be imprysoned for, as in case he speake wordes of hygh treason,
agaynst the king or Quene” (Foxe [1583] 2003). In response, Philpot argues that his actions are
fully sanctioned by “God’s law”:
In deede by the civill law I know it is not lawfull, but by Gods [sic] law we may
reason thereof. For S. Peter sayth: Be ye ready to render accompt unto al men of that
hope which is in you, that demaund you of the same” (Foxe [1583] 2003).
For Philpot, Apostolic mandates, proverbs, and examples have as much legal authority as
statutes, bills, acts, and custom.
To the consternation of his questioners, Philpot moves between two interpretations of the
law: law established by the English state, manifested in statutes, customs, and rules, and law
mandated by God, manifested in the “Word,” and accessed through conscience. Philpot initially
tries to defend himself on legal grounds. Philpot uses his knowledge of the common law to
criticize the proceedings: “M. Doctor, you know that the common law is other wise: and besides
this, the statutes of this Realme be otherwyse, which geveth this benefit to every person, thogh
he be an heretike, to enjoy his livyng untill he bee put to the death for the same” (Foxe [1583]
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
91
Philpot’s arguments against transubstantiation were printed in The trew report of the dysputacyon had
and begonne in the convocacyon hows at London the XXVIII daye of Octobre MDLIIII (Emden, 1554). This book
was used as evidence to convict Philpot of heresy (Foxe [1583] 1853).
80
1821). Also, when Philpot reminds his examiners he has been retained without due process, he
cites the “laws of this Realme”
92
:
…if I ca[n]not be charged with any particuler matter done contrary to the lawes of
this Realme, I desire your maisterships that I may have the benefit of a subject, and
be delivered out of my long wrongfull imprisonment, where I have lyen this
twelvemonth and this halfe, without any calling to answer before now, and my livyng
taken from me without all law (Foxe [1583] 1820).
Later, Philpot cites the principle of “exceptio fori” (exception against the court) with reference to
both common law and God’s law.
93
He argues that he ought to appear before his ordinary (i.e.
the bishop of Winchester) and not the bishop of London:
My L. of London is not myne Ordinary in this behalfe, and I have already answered
unto myne Ordinary in this matter: and therefore (as I have sayd before) you shall do
me great wrong, to vexe me twise for one matter, since I have sustained this so long
imprisonment, besides the losse of my livyng (Foxe [1583] 1821).
In these passages, Philpot portrays himself as dutiful subject to the laws of the realm,
legitimizing the laws in passing. Although Philpot insists that he, like “many,” is only obligated
to “abide in the true faith of Christ,” he nonetheless engages his examiners on specific points of
temporal law, which effectively reinforces the legitimacy of their structure (Foxe [1583] 1846).
But Philpot, at other times, rejects the validity of the laws. He tries to have it both ways.
For example, in the midst of a particularly heated debate about the law, to one examiner’s
comment that “[t]he common lawes are but abstractes of the scriptures and Doctors,” Philpot
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
92
John Bradford in his examination makes a similar argument: “if giltles, then geve me the benefit of a
subject, which hytherto I could not have” (Foxe [1583] 1631).
93
Philpot claims, “Sir, you know by the law, that I may have ‘Exceptionem fori:’ and it is against all equity
that I should be twice vexed for one cause, and that by such as by the law have nothing to do with me” (Foxe [1583]
1820).
81
responds, “[w]hatsoeuer you do make them, they are no grounde of my fayth, by the which I
ought to be judged” (Foxe [1583] 1827). He demands that his examiners judge him by his “faith”
alone; the common law should not be used as an instrument of punishment for religious dissent.
When his examiners accuse him of being rebellious, Philpot defends his words and actions,
saying they are motivated by his devotion to “Gods manifest word” (Foxe [1583] 1845). He asks,
rhetorically, how he could be in the wrong when “it is my whole desire…to follow that which is
good…and to cleave to gods truth” (Foxe [1583] 1842).
Philpot builds his narrative towards a climactic moment (in the fourth examination) in
which he publicly rejects his training. When Bonner declares, “[t]his man tolde mee the last time
I spake with him, that he was a Lawyer,” Philpot corrects the bishop: “I sayd not I was a
Lawyer” (Foxe [1583] 1823). Philpot’s rejection of his professional identity epitomizes the
tension between his two selves: the public and professional self (lawyer) and the private and
spiritual self (martyr). When Philpot quits the legal sphere, he opens a space for another to fill.
Bonner tries to catch Philpot on a point of law. But his zealousness with legal subtleties serves to
reveal his pride. According to Foxe,
Then the Bishop delivered unto Philpot two books, one of the civill law, and the
other of the Canon, out of the which, he would have proved that he had authority to
proceede agaynst him in such sorte as he did. M. Philpot then perusing the same, and
seeing the small and slender proofe that was there alledged, sayd unto the Bishop…I
perceive your law and Divinity is all one: for you have knowledge in neither of them:
and I woulde ye did know your owne ignoraunce: but ye daunce in a net, and thinke
that no man doth see you. Hereupon they hadde much talke, but what it was, is not
yet knowne (Foxe [1583] 1851).
82
Bonner’s knowledge of law is limited for his books are “embrued” with “dust” (Foxe [1583]
1827). Philpot is trained to construct complex legal arguments but he downplays his legal
learning in order to demonstrate his commitment to a higher law. He lays a trap for Bonner and
the “ignorant” bishop fulfills the role of the fool. He shows himself to know neither law nor
divinity. Furthermore, he misunderstands that earthly law and divinity should not be one and the
same. Weaving through different understandings of “law,” Philpot leads his examiners down
rhetorical labyrinths. One by one, his examiners are subdued by Philpot’s gymnastic wit.
Conclusion
In Foxe’s narrative, all forms of wisdom—including jurisprudence or wisdom of the
law—derives from God. Foxe illustrates this tenet in the terminal woodcut of the first volume of
the 1583 edition of Acts and Monuments (Fig. 2). One side of Justice’s balance is loaded with
“Verbum Dei” (the Bible) and the other, the “Decretatis,” hosts, cups, beads, crucifixes, rosaries,
images, and other objects of Catholic ritual. Not even the additional weight of a devil tips the
balance towards the Catholics’ side. The woodcut simultaneously captures Protestants’ emphasis
on sola scriptura and their equation of “law” with God’s law. Equipped with knowledge of the
divine law, Protestant defendants boldly challenge their examiners on points of law. Rather than
citing legal rules and principles, the martyrs claim to know the law through their godly fear. At
the same time, they denigrate the legal reading, commentary, and other forms of specialized
learning so valued by scholastic and, later, legal professional communities. In Acts and
Monuments, knowledge of divine law is all that matters. By the same logic, a lack of professional
training in the law does not prevent defendants from arguing their case. On the contrary, Foxe
shows less educated martyrs quoting “God’s law” to thwart their examiners. Examinees assert
83
that the law written in their hearts contains greater authority than the laws invented by human
endeavor. They claim all virtues, including jurisprudence, hinge on spiritual knowledge.

Acts and Monuments offers hundreds of portraits of lay jurisprudents. It relates the words,
actions, even feelings of the examiners and examinees. Formally, the text is not consistent with
any single genre. In an effort to prove the historicity of his narrative, Foxe layers the
examinations with official documents such as legislations, proclamations, and letters exchanged
between monarchs and heresy commissioners. As a result, the text is partly a church history and
Fig. 2. John Foxe, “Justice,” Acts and Monuments, 1583. The Huntington Library.
84
partly a legal abridgement. Acts and Monuments offers readers, then and now, insight into how
legal, political, and theological changes affects ordinary people. By both sixteenth century and
modern scholarly accounts, Foxe achieved what he set out to do: to write a comprehensive
history of the Reformed church. Yet he also went beyond that chief objective. The book outgrew
the writer’s plan. Like a Brueghel painting or a Dickensian novel, Foxe’s narrative is
crisscrossed with a seemingly inexhaustible variety of characters who, empowered by their
conviction of the “truth,” confidently debate their examiners on points of legal procedure and
theory. The book provides not only a record of the persecution of “all sorts,” but also a catalogue
of examples of lay legal ingenuity. In the text, laypeople craft religious and legal arguments to
subvert their “betters.” Thus, Foxe’s encyclopedic approach to history results in a narrative
which, in some ways, exceeds the author’s original vision.
At the heart of Foxe’s narrative lies a powerful claim about the origin of knowledge,
including jurisprudential knowledge. Knowledge derives from faith. The resulting affective
jurisprudence claims that godly fear is the first and final source of knowledge. This emphasis on
revealed knowledge destabilizes the professional definition of jurisprudence as a skill learned (or
perfected) through reading and experience. Medieval theologians (integrating classical
philosophy with Christian religion) defined synderesis, “a faculty of apprehension,” as a superior
“cognitive and intellectual faculty” to conscience (conscientia), “a faculty of application.”
94
But
this discussion of knowledge and wisdom had little purchase with the Protestant community.
In his publications, Luther challenges the humanist doctrine regarding the power of
human reason to discover moral principles. Luther characterizes reason as a subordinate faculty
to faith. Furthermore, Luther equates humanist, Aristotelian notions of distributive justice with
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
94
Berman, Law and Revolution II, 75.
85
the Catholic doctrine of good works. For Luther, Foxe, and the Marian martyrs, wisdom—
including legal wisdom—can not be gained through rational measures. Wisdom comes from
grace, which is by definition beyond human understanding. Godly fear and sorrow mediate all
that is known or knowable. This conception of wisdom undermines not only the authority of the
Catholic examiners but also the humanist tradition. Through his account of the wisdom of the
“true” Christian, Foxe destabilizes the class-based criteria of the classical discussion of
jurisprudentia. Acts and Monuments paves the way for a truly popular jurisprudence which
proclaims that every person possesses heartfelt knowledge of the law.
86
Chapter 2
Law and Conscience in
A Warning for Fair Women and Elizabethan Crime Literature
*
The previous chapter studied the impact of the Reformation on the discourse of popular
jurisprudence. Specifically, it looked at the political uses of Protestant jurisprudence by heresy
defendants as represented in John Foxe’s Acts and Monuments. Claiming to have direct
knowledge of God’s law, Foxe’s martyrs challenge the foundation of their inquisitors’
jurisprudential knowledge. They argue that “true” learning resides in faith; God’s law is
inscribed in the heart (lex in scripta corde). According to this logic, legal wisdom may not to be
viewed as an outcome of professional learning or experience, but of religious feeling. In this
way, Protestant jurisprudence complicates the classical understanding of jurisprudential
knowledge as phronesis or moral wisdom—wisdom which emerges from a life devoted to both
philosophical study and political action.
The narratives in Acts and Monuments show how the performance of religious passions
such as godly sorrow and fear not only undermine Catholic authority but also trouble the
humanist conception of wisdom as an intellectual virtue. Foxe’s martyrs are feeling
jurisprudents. They do not acquire legal wisdom through reading, practice, and other kinds of
“learning,” but through contrition, self-abnegation, and a “fear of god.” Furthermore, the martyrs
demonstrate their legal wisdom through affective performances or “outwarde shewes of…bodye”
such as “boiling heats” and “gush[ing] tears” (Foxe [1583] 1910). Each tear, tremor, and
downcast gaze acts as a signifier for the believer’s inner wisdom. Tears, such as the ones emitted
87
by Cranmer before the judges, signal spiritual and legal enlightenment. Foxe’s narrative helps to
invert the humanist prioritization of cool reason (ratio) over warm feeling (affectio).
Furthermore, Foxe’s stories posit an opposition between academic legal knowledge,
expressed by way of fluency in the written law (legal principles, procedures, glosses), and lay
legal knowledge, pronounced through “simple” legal formulations grounded in Scripture. In
Foxe’s universe, although Catholic inquisitors possess formal training in the scholastic tradition
of glosses and commentaries, they lack “true” knowledge of God’s law, a deficit which is
manifested in their choleric outbursts and “arrogant” speech. The examinations of plebeian
defendants (especially women) in the text powerfully underscore the radical nature of affective
jurisprudence by de-coupling considerations of class and gender from jurisprudence.
Historically, Acts and Monuments reached a large audience, leaving an indelible mark on
Elizabethan culture.
How was the radical rewriting of jurisprudence sustained during the latter decades of the
sixteenth century? According to Foxe and other writers, godly martyrs possess special insight
into the law by virtue of their spiritual election. What about the unwashed masses? Could the
“middling” sorts—or indeed reprobates—attain legal wisdom?
1
To answer these questions, I
shift to an analysis of late sixteenth-century and early seventeenth crime pamphlets and domestic
tragedies.
2
As critics have observed, these stories of adultery, crime, and conspiracy operate on
########################################################
1
On the language of and idea of “sorts” see Keith Wrightson, “‘Sorts of People’ in Tudor and Stuart
England,” in The Middling Sort of People: Culture, Society, and Politics in England, 1550-1800, ed. Jonathan Barry
and Christopher Brooks (Houndmills: Macmillan, 1994), 28–51, 227–233. The “middling sort” refers to tradesmen,
yeomen, and husbandmen.
2
Often, the same story narrated in a crime pamphlet or play also circulated in a broadside ballad, scaffold
speech, or criminal confession. Because pamphlets and domestic tragedies usually provide fuller accounts of the
story than ballads and confessions, I have chosen to focus on the former genres. For examples and critical analysis
of early modern English ballads, see the English Broadside Ballad Archive, http://ebba.english.ucsb.edu/ modern
popular culture, and the critical essays in Patricia Fumerton, Anita Guerrini, and Kris McAbee, eds., Ballads and
Broadsides in Britain, 1500-1800 (Aldershot: Ashgate, 2010).
88
multiple levels: they share news, they provide entertainment, and they convey religious and
political doctrine.
3
They also theorize the “proper” responses to crime, both on the procedural
and emotional level. The theorized responses are shaped by the common law tradition of
participatory justice and by religious, increasingly Calvinist, ideas about the importance of
confession and the inescapability of God’s punishment. Against their will, sinners in these stories
are betrayed by their guilty conscience to spontaneous confession. Conscience acts as a primal
form of jurisprudential knowledge etched into the soul. It is a “[c]andle in the darke” revealing
right and wrong action.
4
These stories rarely follow the structure of a Victorian “whodunit”
detective novel. The mystery does not reside in finding out who committed the murder; that
information is typically revealed in the paratextual devices framing the narrative—in the very
title. Instead, the narrative tension is located in the pivotal moment of confession: when will the
felon turn against himself or herself? When will his or her guilty conscience become activated?
During the later half of Elizabeth’s reign, contemporary commentators regularly
lamented the weakening of traditional social bonds such as “neighborliness” and “charity.”
Historical research reveals the complex social and economic causes which stimulated that
discourse of distress. The Elizabethan “golden age” was tarnished by periodic famine, plague,
enclosure of common lands, urbanization, inflation, not to mention religious tension and foreign
wars.
5
The state faced numerous political crises both foreign and domestic. Additionally, the
religious settlement was threatened by periodic “discoveries” of Catholic plots and a rise in non-
########################################################
3
It has been argued that crime pamphlets operated as vehicles for Puritan propaganda. See Peter Lake and
Michael C. Questier, The Anti-Christ’s Lewd Hat: Protestants, Papists and Players in Post-Reformation England
(New Haven, CT: Yale University Press, 2002).
4
Sir John Dodderidge, “His Charge to the Grand Inquest of Middlesex” (1620), BL, Harl. MS 583, fo.13r.
Dodderidge explains that “The knowledge Wee have is but guides by the Law of nature and soe like to a dym Candle
in the darke, is yett sufficient to lay before our eyes and make manifest our weakenesses, imperfeccions, corrupted
Wills and wicked ways.”
5
Steve Hindle, The State and Social Change in Early Modern England, 1550-1640 (Houndmills: Palgrave,
2002), esp. chapter 2.
89
conformist Protestant groups such as the Familists, Brownists, and Puritans.
6
These “converters
in divinity,” according to Ben Jonson, disturbed the peace “like swaggerers in a tavern, that catch
that which stands next them, the candlestick or pots; [that] turn everything into a weapon.”
7

During these decades of increased political, religious, and social fracturing, the
government used the legal system itself to measure and mend social discontent. In jury charges,
the law officers of the crown ordered justices of the peace and assize judges to monitor local
reactions to political or religious policies. Assize judges were asked to determine “whether
Recusants and Sectaryes doe increase in their Circuits or not,” “whether there bee any Division
or factions among the Gentry,” “[o]ff what grievances the

people complaine of,” and “[w]hether
there bee any neglect in the

Kings Officers.”
8

At the same time, the crown sanctioned the publication of religious and moral literature
which emphasized the themes of harmony, order, and obedience. For example, the state
authorized preachers to deliver sermons at the beginning of assizes to impart the lesson of the
inescapability of the law—both the temporal law and God’s law.
9
In assize sermons, preachers
speak of man’s “natural” propensity for sin. They argue that the cycle of evil does not end with
the discovery and execution of criminals; rather, it reinserts itself at any moment. An evil
thought begets an evil word; an evil word precipitates an evil action. Hence, it is the
########################################################
6
On the Tudor and Stuart governments’ reactionary responses to conspiracy and treason, see Rebecca
Lemon, Treason by Words: Literature, Law, and Rebellion in Shakespeare’s England (Ithaca, NY: Cornell
University Press, 2008).
7
Ben Jonson, “Explorata: Or Discoveries,” in The Complete Poems, ed. George Parfitt (London: Penguin,
1996), 406.
8
Francis Bacon, “A Charge,” n.d., BL, Harley MS 583, f.12v.
9
Recent analysis of early modern assize sermons include Hugh Adlington, “Restoration, Religion, and
Law: Assize Sermons, 1660-1685,” in The Oxford Handbook of the Early Modern Sermon, ed. Peter McCullough,
Hugh Adlington, and Emma Rhatigan (Oxford: Oxford University Press, 2011), 423–459; Arnold Hunt, The Art of
Hearing: English Preachers and Their Audiences, 1590-1640 (Cambridge: Cambridge University Press, 2010);
Barbara J. Shapiro, “Political Theology and the Courts: A Survey of Assize Sermons c1600-1688,” Law and
Humanities 2, no. 1 (2008): 1–28; Juliet Amy Ingram, “The Conscience of the Community: The Character and
Development of Clerical Complaint in Early Modern England” (Ph.D. diss., University of Warwick, 2004).
90
responsibility of all persons to stand on guard day and night. Even if a sinner manages to evade
the secular authorities, he or she would be punished by the faculty of conscience. There would be
no escaping God’s wrath.
Similar themes occur in murder pamphlets. The authors of these pamphlets call on
readers to maintain a program of inward and outward vigilance, watchfulness, scrutiny, and
observation. They paint everyday life as a particularly trying time for the good Christian: rogues,
thieves, and recusants lurked around every corner.
10
In the character of Zeal-of-the-Land Busy,
Jonson offers a comically exaggerated version of the obsessive hunter-of-sins. Busy’s
zealousness causes him to mistake a stack of gingerbread men for an “Idolatrous Grove of
Images.”
11
Despite the fun Jonson has at the expense of the Puritan, Busy’s zealous vigilance is
precisely the “godly” habit promoted by religious and moral authors. Such is the shape of the
religious-legal discourse. The depiction of actual or attempted murder, treason, and rebellion
reflect more or less an orthodox religious and political agenda.
Imaginative literature offers evidence of how the unofficial or popular response to social
change closely followed, without exactly duplicating, the official dicta. In the late 1580s,
professional playwrights, who constituted an emergent professional class, seized the opportunity
to capitalize on the popular obsession with crime and criminality. Domestic tragedy—sometimes
called bourgeois or homiletic tragedy—was a genre which did the most (at the very least, the
most explicitly) to combine religious, namely Calvinist, doctrine with tragic action. As Subha
########################################################
10
Arthur F. Kinney observes that “it was the age of the Tudors that produced, for the first time, the fairly
extensive body of literature on criminal life. Some twenty-five works are still extant” (Rogues, Vagabonds, & Sturdy
Beggars: A New Gallery of Tudor and Early Stuart Rogue Literature Exposing the Lives, Times, and Cozening
Tricks of the Elizabethan Underworld (University of Massachusetts Press, 1990).
11
Ben Jonson, Bartholomew Fair, in Works, ed. C. H. Herford, Percy Simpson, and Evelyn Simpson, vol. 4
(Oxford: Clarendon, 1938), 3.6.98.William Hunt comments that “a puritan who minds his own business is a
contradiction in terms” (William Hunt, The Puritan Moment: The Coming of Revolution in an English County
(Cambridge, MA: Harvard, 1983), 146.
91
Mukherji observes, domestic tragedies depict “household catastrophes” befalling “ordinary
middle-class people” and often serve as vehicles for the doctrine of “Calvinistic
providentialism.”
12
Domestic tragedy offered audiences both the thrill of a tragic spectacle and
the comfort of a religious moral. That combination proved irresistible to many audiences.
There is well over a hundred years of literary and historical scholarship on the genre.
13

Only a handful of printed domestic tragedies exist out of what may have been several dozens.
The ones which have drawn the most critical attention include A Warning for Fair Women,
Arden of Faversham, Women Beware Women, A Yorkshire Tragedy, Two Lamentable Tragedies
(a play with a double plot, one set in England and the other in Italy).
14
Although it is difficult to
boil down the diversity of critical readings, it may be said that, in the wake of feminist historicist
criticism, scholars have largely focused on the themes of female subjectivity or subordination in
these plays.
15
For example, Randall Martin has recently argued that murder pamphlets, with their
########################################################
12
Ibid., 127.
13
The term “domestic tragedy” is attributed to John P. Collier. On the Victorian invention of the term
“domestic tragedy,” see Lena Cowen Orlin, Private Matters and Public Culture in Post-Reformation England
(Ithaca: Cornell University Press, 1994), 9. See also Lena Cowen Orlin, “Domestic Tragedy: Private Life on the
Public Stage,” in A Companion to Renaissance Drama, ed. Arthur F. Kinney (Malden: Blackwell, 2002), 369–372.
Sometimes, scholars call the same set of plays “realistic tragedies,” “domestic plays,” or “bourgeois drama.”
Shakespeare’s contemporaries made no such distinction. Henslowe’s Diary lists Friar Francis, a lost play, as a
“play.” Reading from the evidence in Henslowe’s Diary, it appears that the vogue for the genre lasted from the late
1570s to the early 1620s; domestic tragedies continued to be written and performed until the closing of the theaters.
Catherine Richardson argues that the Elizabethans had developed a taste for mimetic drama, and that domestic
tragedy arose in part from this new trend: “In this new kind of commercial theatre, grown immeasurably in
confidence by the close of the sixteenth century, the portrayal of the domestic environment and the pull of local and
contemporary narratives seem particularly intended to invite comparison with experience outside the theatre”
(Domestic Life and Domestic Tragedy in Early Modern England: The Material Life of the Household [Manchester:
Manchester University Press, 2006], 10).
14
An annotated list of “lost” domestic tragedies is found in Andrew Clark, “An Annotated List of Sources
and Related Material for Elizabethan Domestic Tragedy, 1591-162,” Research Opportunities in Renaissance
Drama 18 (1974): 25–33; Henry Hitch Adams, English Domestic Or, Homiletic Tragedy, 1575 to 1642 (Columbia
University Press, 1943). See also the Lost Plays Database, http://www.lostplays.org.
15
Important studies include Richardson, Domestic Life; Richard Helgerson, Adulterous Alliances: Home,
State, and History in Early Modern European Drama and Painting (Chicago: University of Chicago Press, 2000);
Viviana Comensoli, “Household Business”: Domestic Plays of Early Modern England (Toronto: University of
92
sometimes humane representation of the female felon, inspired officers of the law to treat their
female prisoners with greater leniency.
16

In focusing on the issue of female subjectivity, critics have paid relatively little attention
to the other bodies on stage, namely, the lay investigators who contribute to the resolution of the
crime. I argue that some of the plays are very much interested in the lay investigators,
specifically, their “perceptual competence” in law.
17
The subject of domestic tragedy, as its
name suggests, was the English home. But the dramatic action typically unfolds around moments
of “discovery.” These discoveries, however, are not what we might call Aristotelian. Instead, the
discovery often centers on the growth of jurisprudential knowledge, which runs the gamut from
neighbors’ discovery of providential signs to the sinners’ inward discovery of guilt and
conscience. Discovery in domestic tragedy occurs in theatrical shocks and thrills as well as quiet,
religious reflection.
In addition to promoting the notion that every person possessed a capacity for legal
investigation and moral commentary, the plays busily plot their own social value by positing the
###################################################################################################################################################################################
Toronto Press, 1996); Orlin, Private Matters; Frances E. Dolan, Dangerous Familiars: Representations of Domestic
Crime in England 1550-1700 (Ithaca: Cornell University Press, 1994). In her recent article Marissa Greenberg
explores the cityscape and “spatial semiotics” of domestic tragedies, using A Warning as a primary example (“Signs
of the Crimes: Topography, Murder, and Early Modern Domestic Tragedy,” Genre 40, no. 1–2 [2007]: 1–29).
16
Martin Randall argues that “printed crime news generated a paralegal culture of equitable perspectives”
which inspired “early modern jurors, judges, and other officials to conceptualize the rational options of leniency
extended towards female suspects in the many arraignments and trials ending in dismissal or acquittal” (Women,
Murder, and Equity in Early Modern England [New York: Routledge, 2008], 11). Although Randall presents
compelling evidence of formal changes in crime news over the course of the seventeenth century, he does not
sufficiently explain the causal relationship between these formal changes and changing legal practices.
17
I borrow the phrase “perceptual competence” from Barbara Shapiro’s work on lay legal epistemology. In
a response to Steven Shapin’s discussion of the “culture of gentlemanly veracity,” Shapiro argues, “all normal men
were deemed to be perceptually competent in the legal context, and there was no suggestion that either ‘sense’ or
memory, key elements in matter of fact, were less acute or accurate in those of lower status. Jurors, men of the
middling classes, were entrusted to evaluate witness testimony for reliability and credibility” (Steven Shapin, The
Social History of Truth: Civility and Science in Seventeenth-Century England [Chicago: University of Chicago Press,
1994], 6; Barbara J. Shapiro, A Culture of Fact: England, 1550-1720 [Ithaca: Cornell University Press, 2000], 26).
93
existence of a “natural” kinship between legal and tragic (or poetic) knowledge. According to the
anonymous author of A Warning for Fair Women, the plays, whose plots derive from actual
historical events, help to sharpen the moral and legal sensibilities of the audience, transforming
them into better judges of human behavior. The play’s realistic representation of legal procedures
(the pre-trial investigation, witness-questioning, and interpretation of evidence) is crucial to its
argument about its own social worth. Using meta-theatrical techniques, such as framing the main
action with dumb shows and chorus-like expositions by Tragedy, the play seeks to generate legal
epistemological ambiguity concerning motive and “malice” (mens rea) of the wrong-doers. As a
result, the play tries to pay a double dividend to the playgoers: first, to entertain them with a
sensational tale of seduction, murder, and conspiracy; second, to cast the theatrical experience
itself as inspiring sound legal and moral doctrine. The play renders theater as an occasion for
making legal and moral understanding. That process, in turn, elevates theater audiences from the
subject-position of mere spectators to important actors—lay legal professionals. Advancing a
populist notion of lay legal wisdom, the play portrays those who participate in the tragic theater,
the writer and the audience, as pivotal members of a legal community. The tragic poet teaches as
well as delights, transforming the playhouse into a trial space, the playgoers into witnesses,
jurors, and judges. What enables the playwright to speak persuasively about the law is not his
legal experience but his artistic sensibility: his tragic “passion.”
1. Criminal Subjects
A generic overlaps exists between hagiography, murder pamphlets, and domestic
tragedies. All these texts examine the inner “grief” of sinners as their wrestle (in vain) to justify
their conscience. Criminal subjects, like martyrs, display aspects of what Katharine Eisaman
94
Maus’s calls an “inwardness of mind.”
18
Additionally, all these stories include a popular
audience. Murder pamphlets and domestic tragedies narrate the lives and deaths of the lesser
gentry, townsmen, merchants, apprentices, and laborers.
19
Hagiography illuminates patterns of
godly behavior; murder pamphlets and domestic tragedies publish “warnings” of sinful action.
They are, in essence, complementary genres. Like the martyrs, reprobates struggle with the
faculty of conscience. Like the martyrs, they tremble, cry, and faint when confronted by the
magnitude of their sins.
Writers of murder pamphlets and domestic tragedies claim to reveal the habits,
languages, and thought processes of criminals in order to “warn” audiences away from vice.
Their texts explicate a connection between seemingly minor (and certainly ubiquitous)
transgressions such as gambling, drinking, and prostitution and major (but rarer) crimes such as
homicide, conspiracy, and treason. According to these authors, an invisible chain of vice
connects the common sins of the flesh—greed, gluttony, and lust—with more serious, capital
crimes of murder and treason.
20
Writers portray themselves as light keepers who illuminate the
righteous path. For example, the author of the pamphlet Two notorious murders (1595) claims to
“imitate” the “wisedome of our fathers in elder ages” who “sought to warne the living” by
“publishing…detested crimes.”
21

2. Interpretation and Reception
########################################################
18
Katharine Eisaman Maus, Inwardness and Theater in the English Renaissance (Chicago: University of
Chicago Press, 1995), 20.
19
Crime pamphlets occasionally feature noble characters, but typically such characters are legal officers
peripheral to the main action, for example, the “Knight” in A Yorkshire Tragedy.
20
Golding quotes Solomon’s proverb, “the steps of a harlot leade downe unto death, and hir feete perce
even unto hell” (228). On the relationship between drunkenness and treason, see Rebecca Lemon, “Compulsory
Conviviality in Early Modern England,” English Literary Renaissance 43, no. 3 (2013): 381–414.
21
Anon, Two Notorious Murders One Committed by a Tanner on His Wiues Sonne Nere Horne-Church in
Essex, the Other on a Grasier Nere Ailsburie in Buckinghamshire!: With These Is Intermixt Another Murdrous
Intending Fellonie at Rislip in Middlesex, All Done This Last Month (London, 1595), 3.
95
The reception history of the murder pamphlet and domestic tragedy reflects strong and
continuing interest among literary scholars and historians in early modern popular legal cultures.
Scholars recognize that to study law a variety of perspectives—above, below, sideways—it is
necessary to explore archives produced by popular, in addition to institutional-legal professional,
authors. Texts such as murder pamphlets and domestic tragedies prove extremely fruitful for that
agenda. But how should we read these genres in meaningful and productive ways? Over the
years, critics have practiced several interpretive approaches. Early criticism of murder pamphlets
tended to treat the texts as early manifestations of news reporting.
22
Such an association gives
the impression that the authors were mainly interested in selling factual information. Soon
enough, however, critics became more suspicious of the material. Sandra Clark, for example,
points out that in many of these pamphlets, the author “cannot possibly have witnessed
personally” the scene, rendering the report an instance of “imaginative reconstruction.”
23
In The
Anti-Christ’s Lewd Hat (2002), Peter Lake employs a pointedly political (and deeply suspicious)
reading of murder pamphlets, reading them as state-sanctioned propaganda spreading “puritan
hot Protestantism.”
24

More recently, scholars approach the texts as both historical and literary texts. They study
the texts for what they reveal about legal, political, and social practices. They also explore the
literary nature of these seemingly historical documents. For example, critics such as Barbara
Shapiro, Lorna Hutson, Subha Mukherji, and Frances Dolan look at the contribution of these
########################################################
22
See, for example, Matthias A. Shaaber, Some Forerunners of the Newspaper in England 1476-1622
(Philadelphia: University of Pennsylvania Press, 1929).
23
Sandra Clark, The Elizabethan Pamphleteers: Popular Moralistic Pamphlets, 1580-1640 (Rutherford:
Fairleigh Dickinson University Press, 1983), 108.
24
Lake and Questier, The Anti-Christ’s Lewd Hat, xxv.
96
texts to evolving notions of fact and fiction, witnessing and testimony.
25
Hutson, for example,
studies the ways forensic drama is shaped by a “judicial oratorical tradition” and argues that
Shakespeare and other Elizabethan authors demonstrate a sensitivity to the duality of narratio;
they recognize it as both a “statement of fact”—a legal narration of the kind spoken by an
advocate at trial—and an occasion for fiction-making.
26
Dolan argues popular legal fictions from
the seventeenth century display a “heightened sense of urgency and self-consciousness regarding
the contingency of truth claims” caused, in part, by political, economic, and religious crises.
27

My approach reflects the shift in the critical interpretive strategies. In my discussion of
murder pamphlets, I analyze their political and historical trajectories. Yet, like Hutson and Dolan
and others, I am interested in the authors’ literary agenda. The playwrights of domestic tragedy,
in particular, show a deep investment in the questions of genre, mimesis, authorship, and the
ethics of their art. They exploit the social capital of the law to develop their cultural status by
proclaiming their art as heuristics for inspiring legal knowledge.
In prefaces to the reader, dedicatory epistles, prologues, epilogues, interludes, and asides,
pamphleteers and dramatists routinely pause the narrative to explain their interest in staging
violence.
28
Their explication dwells on the didactic value of their work. Sometimes, authors
betray anxiety about the impropriety of their writing. The Bible teaches to let bygones be
bygones: “Remember ye not the former things, neither consider the things of old” (Isa. 43:18)
########################################################
25
Frances E. Dolan, True Relations: Reading, Literature, and Evidence in Seventeenth-Century England
(Philadelphia: University of Pennsylvania Press, 2013); Lorna Hutson, The Invention of Suspicion: Law and
Mimesis in Shakespeare and Renaissance Drama (Oxford: Oxford University Press, 2007); Mukherji, Law and
Representation; Dolan, Dangerous Familiars: Representations of Domestic Crime in England 1550-1700; Shapiro,
A Culture of Fact.
26
Hutson, The Invention of Suspicion, 123.
27
Dolan, True Relations, 5.
28
These moments of literary reflection (or self-fashioning) occur in the paratexts: in printed source
prefaces, letters to the readers, dedications, and conclusions, and in dramatic ones prologues, interludes, dumb
shows, epilogues, and intermittent commentary by choric characters.
97
and “For if ye forgive men their trespasses, your heavenly Father will also forgive you” (Matt.
6:14). Pamphlets and plays do precisely the opposite by disinterring the dead. The victims are
resurrected, hunted, and killed. Cases which have been, in the eyes of the law, concluded are
once more opened for public speculation. Speaking uneasily on this issue, the author of a 1581
murder pamphlet declares, “I am…loath…to laie open unto the view of the whole worlde, that
late foule murder…I would not speake much of them which be gonne.” But then he claims
readers will excuse his action once they perceive his true intentions. He picks at “scabbes” in
order to set vice “upon a Stage to be beheld of all men, to give all good Christians warning.”
29

Other authors express concerns about the possibility of inspiring copycat crimes. According to
the author of a conspiracy pamphlet, “a man ought to make scruple to…infect mens cogitations
with the repetition of it … [that] they should provoke an imitation.” Still, he too insists on the
social benefits of his report: “there is more danger, that they should be unrevealed or unbeleeved,
then that being brought to cleare light.”
30
I will explore these kinds of tensions in the chapter.
My discussion explores two texts which are significant examples of their respective
genres: Arthur Golding’s A brief discourse of the late murther of master George Sanders (1573)
and A Warning for Faire Women, containing the most tragicall and lamentable murther of
Master George Sanders (published in 1599). Golding’s pamphlet has the distinction of being the
first printed murder pamphlet. The pamphlet serves as the chief source-text for the play.
31

########################################################
29
Anon, A True Report of the Late Horrible Murther Committed by William Sherwood, Prisoner in the
Queenes Benche, for the Profession of Popery, the 18. of Iune. 1581 (London, 1581), Sig. A2r–v.
30
Francis Bacon, A Letter Written out of England to an English Gentleman Remaining at Padua,
Containing a True Report of a Strange Conspiracie, Contrived Betweene Edward Squire, Lately Executed for the
Same Treason as Actor, and Richard Wallpoole a Jesuite, as Deviser and Suborner against the Person of the
Queenes Majestie (London, 1599), Sig. A2r. Critics have attributed the pamphlet to Bacon. However, the imprint
reveals no author making the attribution guesswork.
31
While the murder of Thomas Overbury received more press coverage (fifteen publications in all), the
Sanders case did not lag far behind at eleven publications. Between 1573 and 1632, numerous authors commented
on the Sanders case. In addition to Golding’s pamphlet and A Warning, there was a ballad entitled “The Wofull
98
Comparing them reveals where the playwright deviates from Golding’s “facts.” As suggested by
the titles, both texts depict the story of the murder of George Sanders (also spelled Saunders in
some texts), a London merchant, by his wife’s lover, George Browne. Although A Warning
derives much of its plot from Golding’s pamphlet, it offers a different take on the issues of lay
legalism and lay legal knowledge. In the play, the conspirators and the bystanders are credited
with a strong working knowledge of the law. Hence, whereas jury charges or other official texts
theorize the existence of primal jurisprudence, plays like A Warning illustrate the phenomenon at
work. In the play, the common people, the townsmen, merchants, yeomen, and laborers, all
demonstrate a capacity for legal labor. They take up the burden of hue and cry and observe and
report forensic evidence. Moreover, they provide well-timed and rhetorically moving moral
commentary. The sinners, too, demonstrate a remarkable degree of autonomy in their ability to
distill moral lessons from their transgressive actions. In an act of self-doctoring, Anne Sanders
whips out a copy of John Bradford’s sermons to self-condemn. Finally, the play depicts the
tragic artist as one who perfects the discovery and critical analysis of guilt. By drawing a tight
connection between literature and law, A Warning sets in motion a conversation about its own
legal utility.
3. The George Sanders Case
###################################################################################################################################################################################
Lamentacon of Mrs. Anne Saunders, Which She Wrote with Her Own Hand, Being Prisoner in Newgate, Justly
Condemned to Death” (c.1596?). Anthony Munday incorporated the story into his anthology A view of sundry
examples (1580); that Munday’s titlepage advertises the text as containing “all memorable murthes since the murther
of Maister Saunders by George Browne to this present” illuminates the historical importance of the Sander’s case.
Additionally, John Stow (Annals, 1592) and Raphael Holinshed (Chronicles, 1577 and 1587) mention the case in
their respective chronicles. Joseph Marshburn believes the pamphlet A Cruell murder donne in Kent (c.1577)
recounts the Sanders case, but the text is lost. The murder is mentioned in Sundry Strange and Inhumane Murders
Lately Committed (1591). Brief allusions to the murder appear in Thomas Lodge’s Wit’s Misery (1596) and T. I.
(Thomas Johnson?)’s A World of Wonders. Mass of Murders (1595). Interest in the case wanes in the seventeenth-
century. The case is briefly mentioned in Thomas Heywood’s Troia Britanica (1609) and T. E. (Thomas Edgar?)’s
The Lawes Resolutions of Womens Rights (1632).
99
Before proceeding, it is helpful to review the facts of the case as told in Golding’s
pamphlet and, more recently, in historical scholarship. According to Golding, on 25 March 1573,
George Browne ambushed George Sanders and Sander’s traveling companion, John Bean, near
Shooter’s Hill in Kent (Fig. 1). Sanders was “striken quite and cleane through at the first blowe”
(217).
32
Believing both men to be dead, Browne departed for the royal court which had taken up
residence at Greenwich (218). Later that day, two locals found the bodies of Sanders and Bean.
Bean was alive despite his “ten or eleven deadly wounds” (218). The locals raised hue and cry
and London officials promptly issued a writ for the arrest of Browne. Browne sought help from
Anne Sanders and Anne Drury in London. The women gave Browne £20 that day and an
additional £6 the next day (218). On 28 March, before he could “shifte…by flight,” Browne was
arrested in Rochester, Kent, “by the Mayor of the towne” (218).
33

########################################################
32
Arthur Golding, “A Briefe Discourse,” in A Warning for Fair Women: A Critical Edition, ed. Charles
Dale Cannon (The Hague: Mouton, 1975), 216–233. Because of the need to include numerous citations to Golding’s
text, I shall embed parenthetical citations in the body of this chapter.
33
Note that Alan H. Nelson dates the arrest to 30 March (Monstrous Adversary: The Life of Edward de
Vere, 17th Earl of Oxford [Liverpool: Liverpool University Press, 2003], 90).
100

Browne was arraigned at the Queen’s Bench—perhaps on account of the Sanders’
family’s court connections (see the fourth section)—on 17 April (219).
34
Three days later, he
was executed at Smithfield and his body was carried to the scene of the crime and left there to rot
in chains (219).
35
By the penal customs of the time, this exemplary form of lex talionis was a
fitting punishment for felons. For murdering Lord Boorke (or Burke), Arnold Crosby was taken
to the foot of a “high hill” at the top of which stood a gibbet: “there hanged till he was dead, and
########################################################
34
The original indictment against Browne is contained in LMA MJ/SR/0179/21, see Martin, Women,
Murder, and Equity, 222 n.3.
35
On the location of Shooter’s Hill and the “semiotics” of this particular location, see Greenberg, “Signs of
the Crimes,” 14, 16.
Fig.%1.%Detail%from%“Map%of%Essex%and%Kent,”%The$Environs$of$London:$volume$4:$Coun5es$of$
Herts,$Essex$&$Kent%(1796),%2.%URL:%hFp://www.briJshKhistory.ac.uk/report.aspx?
compid=45459.%
101
nowe remaineth in the placed [sic] hanged up in chaines.”
36
The Victorian historian William
Lennox de Ros explains what gibbetting entailed.
37
As for the women and Roger, on 14 April,
Anne Drury was arrested and taken to the Tower and around the same time, or shortly after,
Anne Sanders was arrested.
38
On 6 May, the women were arraigned at Guildhall (219). Two
days later, Roger Clement, Drury’s servant, was arraigned at Newgate (220).
39
All three were
hanged on 13 May in Smithfield. According to Golding, “so great a number of people” gathered
to watch the executions that “windows & walles were…beaten down” for better viewing (220).

4. Golding’s A Briefe Discourse
In A Briefe Discourse, Golding uses the case to highlight the efficacy of the state and the
church to contain murder. The heroes of the text are the legal and religious officers. This is not to
say that Golding erases the presence of the common people. The Mayor of Rochester is
mentioned as the person who arrests Browne (218); an “old man and his mayden” are noted as
the ones who raised the initial hue and cry (218). But they appear as mere background figures.
As for the public, they are effectively erased from the narrative. Golding depicts the masses as
########################################################
36
Anon, The Manner of the Death and Execution of Arnold Cosbie, for Murthering the Lord Boorke, Who
Was Executed at Wanswoorth Townes End on the 27. of Ianuarie 1591. With Certaine Verses Written by the Said
Cosby in the Time of His Imprisonment, Containing Matter of Great Effect, as Well Touching His Life as Also His
Penitencie before His Death (London, 1591), Sig. A2v.
37
Gibbetting was a multi-step process: “The man was in the first instance hanged in the ordinary way, with
a hempen cord, and, after he was dead and cut down from the gibbet, a stout canvas dress was put on the body, well
saturated with tar; the face, hands, and feet were likewise daubed with it, and then a light frame of hoop- iron was
fitted round the legs, body, and arms, with the object of causing the ghastly remains to hang together as long as
possible. At the top of this framework, was an iron loop, which went over the head, and to this was secured the
chain, by which the corpse was finally suspended to a lofty gibbet made of oak, and studded with tenterhooks, to
prevent any one from climbing up to remove the body” (William Lennox de Ros, Memorials of the Tower of London
[London: Murray, 1866], 88).
38
Joseph H. Marshburn, “‘A Cruell Murder Donne in Kent’ and Its Literary Manifestations,” Studies in
Philology 46, no. 2 (1949): 137.
39
Marshburn cites the Middlesex County Record which confirms the date of Roger’s trial (see ibid).
102
being observant but not perceptive, sentimental but not pious. Let us explore how the process of
marginalization is achieved through language and form.
In his opening statement, Golding declares that “many delight to heare and tell newes,
without respect of the certentie of the truth” (216). This opening will become a standard trope in
the genre. Subsequent writers of murder pamphlets will refer to a “swirl of prurient rumour”
surrounding the cases on which they report.
40
In addition to representing the people as a rumor-
mill, Golding imagines them becoming overwhelmed by powerful, conflicting emotions:
Some do justly detest the horriblenesse of the ungratious facte, some lamente the
greevous losse of their deare friends, some rejoice at the commendable execution of
upright justice, the godlye bewayle the unmeasurable inclination of humane nature to
extreame wickednesse. (216)
“Detest,” “lament,” “rejoice,” “bewayle” and “delight” imply a potentially toxic mix of
emotions. What is needed, Golding suggests, is someone who is able to chart a via media
through the emotional chasms of detestation and delight, to convert the public’s “inordinate
Passions” into wholesome and productive emotional states such as godly fear and sorrow.
41

Golding positions the author (himself) as just that guide. He promises not only to disseminate the
“true” facts about the case but also to model for readers the correct emotional responses.
Golding’s opening gambit sets the stage for his subsequent intervention as a gatekeeper of
information and interpretation. He begins to rationalize the necessity of a hierarchical model of
jurisprudence.
########################################################
40
Lake and Questier, The Anti-Christ’s Lewd Hat, 5.
41
Thomas Wright, The Passions of the Minde in Generall. Corrected, Enlarged, and with Sundry New
Discourses Augmented (London, 1604), Sig. A3r.
103
In his particular depiction of the public, Golding echoes established prejudice against the
demos. Without leadership, the people are nothing but a “many-headed monster.”
42
This bias
appears in a range of works, literary and political, from the period. Golding’s near-contemporary
Pierre de Charron, for example, comments that in any large assembly of “common people” there
will appear a “Rout and vulgar Croud, the Dregs and Rubbish of the Common-Wealth…a many-
headed Monster…Inconstant and Changeable, Restless and Rolling, like the Waves of the
Sea.”
43
Shakespeare’s mobs, such as the one which follows Jack Cade in Henry VI, Part 2, the
one which falls under the thrall of Antony in Julius Caesar, or the one which banishes
Coriolanus, adhere to a pattern of unruliness and fickleness.
44
For Ben Jonson, there can be no
ambiguity: the “vulgar are commonly ill-natured.”
45
Although Golding does not characterize the
public using quite the antagonistic language of Jonson, his disapproval of the crowd’s high
spirits is clear; the worst are full of passionate intensity, he might have said.
The officials in the text are rewarded Golding’s praise. He highlights the work of the
clergymen who care for the prisoners before their execution, in particular, “Mr. Macwilliams,”
“Mr. Cole,” the “Dean of St. Paul,” “Mr. Charke,” and “Mr. Yong.”
46
According to Golding,
Anne Sanders’s stubborn insistence on her innocence causes the “Dean of Paules” (Alexander
########################################################
42
See the classic essay by Christopher Hill, “The Many-Headed Monster in Late Tudor and Early Stuart
Political Thinking,” in Change and Continuity in Seventeenth-Century England (New Haven, CT: Yale University
Press, 1974).
43
Pierre de Charron, Of Wisdom. Three Books, trans. George Stanhope (London, 1697), Sig. Hh2r.
44
On an analysis of the demos in Coriolanus see Steve Hindle, “Imagining Insurrection in Seventeenth-
Century England: Representations of the Midland Rising of 1607,” History Workshop Journal 66 (2008): 21–61;
Oliver Arnold, The Third Citizen: Shakespeare’s Theater and the Early Modern House of Commons (Baltimore:
Johns Hopkins University Press, 2007), chap. 5.
45
Jonson, Explorata: Or Discoveries, 403.
46
Martin identifies Mr. Yong as Matthew Yonge (Women, Murder, and Equity, 92). The scene described
by Golding is characteristic of the collaboration between legal and religious authorities. Lake explains that “it was
the job of the magistrate and secular courts to investigate the crime, bring the felon to book and then convict,
condemn and execute him or her…the ministers of God were to concern themselves with the salvation of his or her
soul, by producing, in the very face of certain death, a full repentance and conversion” (The Anti-Christ’s Lewd Hat,
135).
104
Nowell) acute distress: he was “not without great griefe and indignation of mind to see hir
stubborne unrepentauntness” (228). Additionally, Cole “laboured very earnestly with hir to bring
hir to repentance” (229). After accomplishing their task of persuading Sanders to confess, the
churchmen lavish her with “spirituall comfort and councell.” As a team, the men “laboured very
painfully to instruct them [i.e. the prisoners] aright” (230). In the text, the officers of the church
and law, such as a master “Geffry the Queenes majesties Serjeant” (220) and the “Lordes of the
Counsell” (222), maintain law and order; the former are tireless and humane, the latter persistent
and efficient.
After outlining the work of these officers, Golding raises his central theme of obedience.
The people should not question the opinion of the judges because the latter, by virtue of their
office, possess superior knowledge of the facts. Golding criticizes readers who attempt to
confuse legal decisions:
When lawe hath once passed upon them [the guilty ones]…christian charitie willeth
men eyther to burie the faults with the offendours in perpetual silence, or else so to
speak of them, as the vices and not the parties themselves may seeme to be any more
touched. (217)
47

By this logic, public legal chatter constitutes unchristian conduct. Golding’s thesis of “perpetual
silence” dovetails with the professional legal discourse on jurisprudential knowledge. Previously,
we heard common lawyer William Fulbecke arguing that “magistrates are the ministers of laws,
the judges are interpretors [sic], the people are the servants.”
48
By characterizing the people as
“servants,” Fulbecke suggests they lack the authority (and knowledge) to offer useful legal
########################################################
47
Stressing the virtue of forgiveness of one’s fellow man, Golding tells readers to “represse our hastie
judgementes and uncharitable speeches, that we myght both detest wickednesse with perfect hatred, and rue the
persons with christe[n] modestie” (217).
48
William Fulbecke, A Direction or Preparatiue to the Study of the Lawe (London, 1600), Sig. C4r.
105
commentary or analysis. Fulbecke’s institutional bias is cemented in Edward Coke’s many
Reports and Institutes, two works to be examined in further detail in the final chapter.
49

According to Golding, because the judges have already passed sentence, any discussion
of the “parties themselves” constitutes a legal transgression. He cautions
all persons to refrayne from any devises or practises to deface or discredite the
honorable proceedings of Counsellors, and publike and lawfull forme of trialles and
judgementes according to Justice, or to hinder the beneficiall course of so good
examples. (222)
To underscore his point, Golding recounts the story of George Mell. According to Golding, Mell
was minister of Newgate, a “foolish” man who tried to free Sanders (222).
50
Instead of providing
her with spiritual counsel, Mell “f[e]ll in love wyth hir” and worked to exonerate her (221). He
was so convinced by her “solemne asseverations and protestations of innocencie” that he asked
Anne Drury to “take the whole guilt upon hir selfe” (221). When she refused, he sought the help
of “an honest Gentleman.” Mell offered the man a bribe if he would take up the case (221). The
unnamed gentleman rejected Mell’s money and turned him in. As punishment, the
Lordes of the Counsell…adjudged him to stand upont he pillorie, with apparent
notes and significations of his lewde and foolishe demeanour…a paper pinned
upon hys breast, wherein were written certain wordes in great Letters conteyning
the effecte of his fact, to his open shame: videlicet, For practising to colour the
detestable factes of George Sanders wife. (222)
########################################################
49
For now, it is sufficient to quote Richard Helgerson’s reading of Coke’s jurisprudence: the “common law
has its own arcana…empower[s]…a professional community of learned lawyers” (Forms of Nationhood: The
Elizabethan Writing of England [Chicago: University of Chicago Press, 1992], 100).
50
On 22 July1566/7, a certain George Mell published A Proper New Balad of the Bryber Gehesie. Taken
Out of the Fourth Booke of Kinges, the V. Chapter; to the Tune of Kynge Salomon (London, 1567). Marshburn
believes this author is the same Mell mentioned by Golding (“‘A Cruell Murder,’” 132). Given the theme of anti-
bribery in ballad, the arrest of Mell for attempted bribery seems particularly ironic.
106
The pillory exposes Mell to the public’s scorn. Fastened to the stocks with a “paper pinned upon
hys breast” containing “wordes in great Letters,” Mell resembles an emblem. His contorted body
forms a pictura and the judges’ sentence a subscriptio. Yet the image is also less emblem-like
than it might at first appear. A typical emblem exploits the tension between picture and text;
frequently, the picture contains symbols which exceed the gloss, prompting the viewer to supply
the missing logical connections.
51
The judges present Mell’s body to the public as a riddle for
interpretation. The paper pinned to his chest hints at his crime, his foul “practice.” Yet Golding’s
commentary, which frames the entire story, effectively quashes the mystery. Golding states that
the moral of Mell’s story is patently obvious: his “doting affections” blurred his judgment and
caused his ruin (222).
In tandem with his overarching thesis of obedience, Golding suppresses potential legal
controversies, including the issue of Anne Sanders’s foreknowledge of her husband’s murder.
Acting like a prosecutor in a courtroom, Golding briefly rehearses the evidence against Anne
Sanders, recounts her reaction, and concludes that her claim to innocence cannot be credited in
light of the facts, which includes the “avouchement of Mistresse Drewries man face to face, and
the great probabilities of the evidence given in against hir by master Geffry the Queenes
majesties Serjeant” (220). Golding acknowledges the power of Sanders’s performance, noting
that some people (like Mell) were persuaded to believe that “she was not giltie at all, or else had
but brough hir selfe in danger of lawe through ignorance.” But he argues that these supporters
harbor a “blinde beliefe” and he reminds the reader that “bare denial is no sufficient barre to
discharge manifest matter” (ibid). Golding detects no ambiguity at all in the proceedings—no
residuum of meaning.
########################################################
51
I am grateful to Jane Grogan for this point.
107
For Golding, the authority of the law must be preserved and the people must be
conditioned to stand in reverence of the judges’ decisions. These arguments are repeatedly
emphasized in the pamphlet. Even the form of the pamphlet (with its many glosses and
digressions) communicates Golding’s interventionist policy. Of the nineteen paragraphs forming
the narrative, fourteen pertain to the case. The others contain moral, religious, and social
commentary. By degrees, Golding attempts to lure readers’ attention away from legal
ambiguities to familiar theological (Calvinist) themes of repentance, confession, and salvation.
5. Politics of Pamphleteering
To understand Golding’s hostility towards popular legal commentary, it is helpful to see
the pamphlet within a particular political context. Golding authored the pamphlet at the behest of
the Privy Council, specifically, at the request of William Cecil, Lord Burghley, his relation by
marriage.
52
As historian Alan Nelson explains, Edward de Vere (1550-1604), the seventeenth
earl of Oxford, was Cecil’s son-in-law and Golding’s nephew by marriage. Golding’s text
reflects the twin pressures of patronage and familial obligation. In a letter to Francis Walsingham
written shortly after the murder, Cecil states: “Here hath been a murther committed about
Shooters-hill, somewhat to the reproof of this place, and herein I have used such care, as the
party is taken, being one Brown an Irishman, who had served, and is put from my Lord of
Oxford’s service.”
53
The “care” of which Cecil speaks is code for “damage control.”
54
At stake
were the reputations of key players at court—including that of his son-in-law.
########################################################
52
Nelson, Monstrous Adversary, 90.
53
Cecil qtd. in ibid., 89. Nelson notes that Browne was not Irish but had temporarily served in Ireland as a
“Captain” (ibid. 90)
54
Ibid., 90.
108
George Sanders had further familial connections to the upper echelons of the Elizabethan
government.
55
Anne Sanders was possibly one of Francis Newdigate’s sisters. Newdigate was
the second husband of Anne Stanhope, Duchess of Somerset.
56
Also, Anne Drury had been a
one-time member of the household of Henry Stanley (1531–1593), fourth earl of Derby. In 1570,
Stanley separated from his wife and entered a common-law marriage with Jane Halsall. The
separation is alluded in Golding’s pamphlet: on the day of her execution, Drury “turns” to her
former master to deny the “report” that she had “bene the cause of separation betwixte him
and…his wyfe” (225).
57

To control the narrative and dispel rumor, the government published an official statement
on the crime. The publication also allowed the state to emphasize its ability to maintain law and
order, to track and contain crime, and, finally, to look after the welfare (caritas) of the citizens—
even of the sinners. To understand how this publication came to pass, we may examine a similar
and better documented example. In 1616, John Bertram shot and killed Sir John Tyndall, a
########################################################
55
E. St. John Brooks, “A Pamphlet by Arthur Golding. The Murder of George Saunders,” Notes and
Queries 174, no. 11 (1938): 183. On the family connections, Marshburn explains that George Sanders “was first
cousin to Sir Edward Sanders, Chief Baron of the Exchequer, and the same relation to Alice Sanders, mother of Sir
Christopher Hatton, who later became Lord Chancellor. Sanders’ father, William, married the mother of the
celebrated legal scholar, Walter Haddon, the friend of Cheke and Ascham; Walter Haddon and George Sanders were
therefore stepbrothers” (“‘A Cruel Murder,’” 136). Golding alludes to these family members when he describes how
on her day of execution, Anne Sanders “sent for hir husbands brothers and their wives and kinsfolke that were in the
towne…in whose presence she kneeling…with abundance of sorrowful teares, desired them of forgivenesse” (224).
In response, “Master Saunders the Lawyer in the name of them al answered, that they…heartily forgave hir” (224).
56
Ibid., 183–4.
57
These familial connections aside, the case may have required special “care” from the state because of its
inauspicious timing. The murder was committed during a particularly holy time of the year. 25 March, Lady Day,
was the first day of the year according to the old style of dating. Also called the Annunciation of the Blessed Virgin
Mary, it marked the end of Lent and the beginning of the civil and legal year. The day commemorates the Nativity
and it would have been celebrated with fast and worship. By ambushing Sanders on the first day of the new year,
Browne disrupts the scheduled period of rest and rejuvenation promised to the community by both church and state.
The play amplifies the sense of taboo by depicting a romance between the second victim, John Bean, and a country
maid named Joan. When Bean is killed, Joan loses her potential spouse. Browne interrupts the lovers’ ability to
uphold God’s commandment to “be ye fruitful, and multiply; bring forth abundantly in the earth, and multiply
therein” (Gen. 9:7). For all these reasons, and perhaps for ones we cannot fully realize, the government had a
powerful stake in ensuring a swift conclusion.
109
master in Chancery, for ruling against his financial interests. Before he could be tried, Bertram
committed suicide. Among those who took an interest in the case was Francis Bacon. In a letter
to George Villiers, the Duke of Buckingham, Bacon lamented Bertram’s death for it stymied the
course of “public justice.” But Bacon saw a way to recoup some of the lost value of a public trial
by pre-emptively publishing an account of the story:
So that there may be otherwise some occasion taken, either by some declaration in
the King’s Bench upon the return of the coroner’s inquest, or by some printed book
of the fact, or by some other means (whereof I purpose to advise with my Lord
Chancellor), to have both his Majesty’s royal care, and the truth of the fact, with the
circumstances, manifested and published.
58

Bacon’s superiors evidently supported this idea, for in a subsequent letter to Villiers, Bacon
reported that he has “set on work a good pen (and myself will overlook it) for making some little
pamphlet fit to fly abroad in the country.”
59
Bacon’s correspondences help us to flesh out the
skeletal publication history of Golding’s text. Once a decision was reached to publish an official
and “true” account of the events, Cecil likely surveyed his extensive household for a suitable
“pen,” someone with the requisite eloquence and political sensibility to write a pamphlet that
could simultaneously dispel rumor and broadcast comforting messages about right overcoming
wrong, murder will out, blood will have blood, and so forth. Golding, with his impeccable
publication record (he was the translator of Ovid, Caesar, Pompeiius, Calvin, Bucer, Beza, and
Bullinger) was judged suitable for the task.
60

########################################################
58
Francis Bacon, letter dated 21 Nov. 1616 “To the King,” in Francis Bacon, The Letters and the Life of
Francis Bacon Including All His Occasional Works, ed. James Spedding, vol. 6, (London: Longman, 1872; repr.
Stuttgart-bad Cannstatt: Holzboog, 1963), 100.
59
Ibid., 6:106.
60
On Golding’s life and works, see Louis Thorn Golding, An Elizabethan Puritan: Arthur Golding (New
York: Smith, 1937).
110
6. Participatory Justice in A Warning
Whereas Golding’s pamphlet uses the Sanders case to advance a strict hierarchy of legal
knowledge (motivated at least in part by court politics), the play inverts Golding’s division of
intellectual labor. The locals who investigate the case and the laborers who aid the investigation
are portrayed as having laudable “natural” legal abilities. The positive portrait of the people is
perhaps related to the commercial nature of the text. Performed in the Globe theater by the Lord
Chamberlain’s Men, and conceived from the first as public entertainment, the anonymous
playwright was free from the chains of political obligations and patronage which bound Golding.
Whereas Golding’s text conveys an elite idea about justice—justice is that which is determined
by the judges or “Lordes of the Counsell”—the play stages a more inclusive concept of justice as
that which is generated, in part, by the people. Indeed, the play uses the Sanders case to advance
the idea of participatory justice. Furthermore, the play opens an imaginative space for the
audience to identify with the lay investigators on stage. The lay legalists on stage are avatars for
the playgoers. Observant, inquisitive, and principled, these theatrical doppelgangers are what the
people could (or should) be. In his attempt to be inclusive, the playwright even provides a
complimentary representation of working class subjects, such as the yeoman Old John and the
anonymous waterman who rows Browne down the river. This is an atypical artistic choice. In my
reading, authors tend to import a conservative ideology of rigid class relations into their
narratives. Sometimes, authors use humor to emphasize the poorer sort’s limited legal wit. For
example, in The Tragedy of Merry (one of the two plays featured in Two Lamentable Tragedies),
the tragic rhythm is interrupted by a comic interlude between two watermen. Walking by the
river, one of them trips over a sack. When the severed head and “one of the legs” of Master
Beech falls out, the watermen exclaim:
111
1 WATERMAN. Good Lord deliver us, a mans legges, and a head with
manie wounds.
2 WATERMAN. Whats that so much, I am indifferent, yet for mine owne
part, I understand the miserie [mystery] of it, if you doe,
why so, if not, why so.
1 WATERMAN. By my troth I understand no other mistery but this,
It is a strange and very rufull sight,
But prethee what doost thou conceit of it.
2 WATERMAN. In troth I am indifferent, for if I tell you, why so, if not why
so.
61

A sorry pair of lay detectives! The comic deliberation between the two watermen, and the second
waterman’s “indifference” to “mistery,” act as a foil to the self-starting lay investigators in A
Warning. The scene featuring the watermen momentarily releases the dramatic tension—even as
it extenuates narrative resolution—at the expense of working class characters.
Similarly, in a murder pamphlet recounting the murder of William Storr (or Storre), a
minister of Market Raisin in Lincoln, the anonymous author makes a point of contrasting the
people’s “noise” (upon the discovery of the victim) to the pragmatic response of the “constable”
and those possessing “more discretion”:
A maide coming that way by occasion of busines cried out, wherupon he
[Cartwright] fled, and many of the neighbors came presently to the place, and
behoulding this woefull spectacle, their Minister thus wallowed in the mire, and his
bloude to extreamely, gushing out, ranne some of them into the towne with such a
########################################################
61
Robert Yarrington, Two Lamentable Tragedies, ed. John S. Farmer (London: Tudor Facsimile Texts,
1913), Sig. F4v.
112
confused noyse, and outcrie of murther, that others hearing it, supposed on the
sudden there had beene fire, and went with all speede to towle the bells. Thus was all
suddenly in an uproare, yet fewe, or none could tell what the matter was. The rest of
more discretion tooke up the wounded man, carried him to the next house, where one
of the constables dwelt, and made very good, and speedy meanes to bind up his
wounds, and to stanch his bloud.
62

While the author notes the diligence of neighbors or bystanders with respect to crime prevention
or investigation—it was, after all, a “maide” who alerts the “neighbors” in the first place—he is
careful to distinguish the people’s reactions, one of “confused noyse” and the other of “good, and
speedy” intervention. Those with “more discretion” conduct the rescue (taking the victim to a
safe location, the constable’s house, binding his wounds, finding surgeons, etc.). The rest
manage to create such an “uproare” that they frighten the townspeople into thinking a fire had
occurred.
In contrast, A Warning credits the middling and poorer sorts alike with legal “discretion.”
Everyone contributes to the detection and investigation of the murder. The dramatis personae
contains a mixed cast of urban and rural characters: Masters James, Master Barnes, Old John,
Joan, a Waterman, several Lords, and a Lord Justice: all contribute to the case’s resolution. The
country characters raise the initial hue and cry. They rescue the half-expired John Bean from the
roadside. They coordinate with the Queen’s officers to arrest Browne. Some of them continue to
be vigilant even after Browne’s sentencing. Master James thwarts an attempt by a “Minister”
(i.e. a character based on George Mell) to liberate Anne Sanders and he briefly assumes the role
########################################################
62
Anon., The Manner of the Cruell Outragious Murther of William Storre Mast. of Art, Minister, and
Preacher at Market Raisin in the County of Lincolne: Committed by Francis Cartwright One of His Parishioners,
the 30. Day of August Anno. 1602 (Oxford, 1603), Sig. A3r–v.
113
of a magistrate when he sentences the Sanders’s would-be helper to stand in the stocks: “Upon
their day of execution…upon a pillory / There shall you stand that all the world may see / A just
desert for such impiety” (5.3.32-35).
63
While going about their legal work, these lay figures
supply a steady stream of moral, social, and legal commentary. Old John, preacher-like, laments
the decline of human compassion in present society, “what an age live we in? when men have no
mercy of men more than of dogges” (3.3.143).
In studying the actions and reactions of the people, the playwright transforms the Sanders
case into a textbook example of participatory justice: the practice of distributing the legal work
among all people. According to authors of legal treatises spanning the fifteenth to seventeenth
century, participatory justice is one of the elements of the English legal system which makes the
system “superior” to that of other countries, such as France or Spain. The jurist John Fortescue
summarizes this argument in the following passage which compares law to the “nerves” which
run through the body-politic:
The law, indeed, by which a group of men is made into a people, resembles the
nerves of the body physical, for, just as the body is held together by the nerves, so
this body mystical is bound together and united into one by the law, which is derived
from the word ‘ligando,’ and the members and bones of this body, which signify the
solid basis of truth by which the community is sustained, preserve their rights
through the law, as the body natural does through the nerves.
64

Cynthia Herrup explains that early modern English criminal law was structured around a series
of mutually reinforcing legal obligations in which the “Privy Council relied on the judges; the
########################################################
63
A Warning for Fair Women, ed. Gemma Leggott, Sheffield Hallam University: 2011,
http://extra.shu.ac.uk/emls/iemls/resources.html.
64
Sir John Fortescue, De Laudibus Legum Angliae, ed. S. B. Chrimes (Cambridge: Cambridge University
Press, 1942), 33.
114
judges relied on the justices; and the justices waited upon the constables who served as grand
jurors and upon the men who served as petty jurors.”
65
Participatory justice was more than an
ideology (perpetuated through the common law tradition); it was a duty reinforced by
parliamentary legislation. The statute 27 Eliz. c. 12 & 13 (1584-5) defines hue and cry and spells
out the penalty for failure to report it.
66
Such legislation suggests people were misreporting or
underreporting crime, providing us with a glimpse of the gap between legal ideal and reality.
In presenting scenes of a community efficaciously engaged in legal work—the “[s]trait
inquisition and search” (4.3.31), the “discovery” of the offenders “where they thought to be
unseene” (4.3.33), and finally, the indictment, trial, and execution of the felons—A Warning
accomplishes a feat of theatrical politicking: it accommodates both an official version of events,
as told in Golding’s pamphlet, and it utilizes its scenes of participatory justice to celebrate the
ability of laymen for various aspects of legal work, including the preliminary investigation,
witnessing, and even judgment. So immersed is the play in that populist vision that it imagines a
seamless transition of jurisdictional power from the London-based officials to the country ones
and vice-versa. In the play, Browne attacks Sanders and his traveling companion John Bean near
Shooter’s Hill in Kent.
67
It falls to the London authorities to issue an arrest for Browne but they
rely on the locals for information. One the Lords predicts (presciently) that there is no need to
send special messengers “[f]or hew and cry may take the murtherers” (4.2.10). And indeed, the
first to arrive at the scene of the crime are Old John and Joan who promptly “rayse all Wolwich
to fetch home this man, and make search” (3.3.149). The scene enacts one of the aspirations of
participatory justice: every person will do the right thing, follow their “natural” instinct for
########################################################
65
Cynthia B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century
England (Cambridge: Cambridge University Press, 1987), 57.
66
Statutes of the Realm: 1547-1624, Vol. 4 (London, 1819), 720-722.
67
J. H. Gleason further observes that Kent is “very much within the London metropolitan region even in
1558, yet also essentially rural” (The Justices of the Peace in England, 1558 to 1640 [Oxford: Clarendon, 1969], 6).
115
justice (an instinct which is honed through custom), regardless of whether they have been so
instructed.
Deviating from Golding’s narrative, the play makes a point of incorporating the voices of
marginalized people. Laborers contribute critical information to the investigation. For instance, it
is on account of the waterman’s affirmation that Browne tried to hide his “bloody” hose with a
hat, moreover, that he “sighed and stared as one that was afraid” (4.2.24, 26), that the Lords
declare action:
Get warrants drawn and messengers attend,
Call all your fellows, ride out every way,
Post to the ports, give charge that no man pass
Without our warrant; one take boat to London,
Command the Sheriffs make wise and speedy search
Decipher him by all the marks you can;
Let blood be paid with blood in any man. (4.2.39-45)
It goes without saying that England in this period lacked a police force in the modern sense.
Even so, scenes such as the one above reveal how policing was envisioned by a popular author
for a common audience. In place was a network of messengers who could deliver messages to all
the ports. In place were sheriffs and other lesser officers of the law who could make “speedie
search.” As the play unfolds, we witness that the arrest, like the detection, lies in the hands of the
people themselves. It is Master James and Mayor of Rochester who confront and arrest Browne.
It is Old John, Joan, and the Waterman who, in their own limited but crucial ways, propel the
investigation.
116
In a further reversal of the top-down ideology found in both Golding’s pamphlet and
some legal professional literature, characters who represent the state or church enter and exit as
relatively peripheral figures. We recall that in Fulbecke’s formulation the people are “servants”
to the magistrates. A Warning deviates from this discourse. The people work closely with the
London officials to resolve the case; they do not appear in the capacity of “servants” but as
collaborators. They share the legal work and commentary. Collaboration is dramatically signaled
in the letters exchanged between the different groups. When news of the murder spread,
characters make a point of describing the types of letters they receive. For example, the Mayor of
Rochester exclaims: the Queen’s “Council’s warrant lately came to me / About the search for
one Captain George Browne” (4.4.99-100). In another scene, the “Lords” (no names are given to
distinguish them) receive a pair of letters about the murder. The first letter contains a brief
mention of the “very bloody act” (4.2.1). The second details the “manner, and the marks of him, /
(By likelihoode) that did the impious deede” (4.2.16-17). Unlike Golding’s pamphlet, A Warning
shows the people in a positive light as, first, steady and composed, and second, careful and
diligent investigators.
7. The Assize at Home
Alongside the images of participatory justice, which show the community coming
together to execute a swift and effective investigation, the play explores the role of conscience in
propelling individuals (against their conscious will) to internalize the logic of the law. Post-
Reformation religious treatises claimed the very existence of law was proof of man’s broken
covenant with God. Because of original sin, man was fundamentally fallen. He was a criminal in
the eyes of God. The daily pricking of his conscience was a reminder of his ontological distance
from the divine. Conscience acted as both a record of transgressions and a mark of shame
117
attesting to his depravity. I have already explored the political uses of this discourse in the
context of heresy examinations. Now I discuss another application: the indoctrination of a habit
of self-accusation or the “assize at home.”
Religious authors, particularly assize preachers, integrated the theory of conscience with
the daily practice of law. The Bible stated that men were “convicted by their own conscience”
(John 8:9) and that even people without benefit of God’s law (i.e. the Gentiles in Paul’s text) had
access to “conscience” which “bears witness” (Rom. 2:15) to their acts. Religious authors
exploited that idea by comparing conscience to an “assize at home” complete with a judge, jury,
accuser, and witness.
68
In an assize sermon entitled The Assize at Home, Robert Abbot explains
conscience using the following metaphor:
God hath established an assize for judgement within our selves. Hence is it that we
are said to be Judges. To conceive therefore aright of it, consider that there is the
Judgement seat, or Court Hall, within a mans selfe; the partie to be tried, man
himselfe; the Judge, witnesse, Jurie, the conscience which shall proceed according to
true allegations and proofes; and all these sweetly inwrapped in these reasoning
thoughtes. Yea and that all things may be carried the more fairely, there is the law
impose upon the reasonable creature, as apprehended by him to be the rule and
records.
69

Abbot assumes knowledge of God’s law on the part of all. He emphasizes the ability of a
“reasonable creature” to recognize justice: “our understandings, either by the light of reason, or
by the light of faith, should have the law of God presented unto them.”
70
The day of the assize
########################################################
68
Robert Abbot, A Hand of Fellowship, to Helpe Keepe out Sinne and Antichrist. In Certaine Sermons
Preached upon Severall Occasions (London, 1623).
69
Ibid., Sig. E8r.
70
Ibid., Sig. E8v.
118
becomes an opportunity to celebrate every man’s ability to “give judgement according to
reason.” Abbot uses the first person plural “we” to reinforce his central theme: “we are said to be
Judges.” The metaphor of the “assize at home” is not merely a pun on the occasion of the speech
(the assize trial). The device actually encourages auditors to identify with different members of
the legal system, to see themselves as “Judges,” even if their jurisdiction is limited to their own
persons and souls.
Abbot’s treatise is a drop in the ocean of commonplaces. The notion of conscience acting
as a legal instrument appears in drama, sermons, moral treatises, commonplace books, and jury
charges. For example, Shakespeare’s Richard III declares,
My conscience hath a thousand several tongues,
And every tongue brings in a several tale,
And every tale condemns me for a villain.
71

Richard assumes multiple parts (defendant, accuser, judge, witness) and effectively conducts an
“assize at home.” In his sermon from 1597, George Macey states, “your accuser is within you,
every mans owne conscience.”
72
William Perkins compares conscience to “a little god sitting in
the middle of mens hearts.”
73
Joseph Hall compares conscience to a “stern sergeant” who
“catch[es] thee by the throat and arrest[s] thee upon God’s debt.”
74
Legal professionals had their
own take on the metaphor. The civilian lawyer Julius Caesar’s commonplace book contains a
maxim (from Erasmus): “Conscientia mille testes” (“conscience is as a thousand witnesses”).
75

########################################################
71
William Shakespeare, Richard III, in The Riverside Shakespeare, ed. G. Blakemore Evans (Boston, MA:
Houghton, 1974), 5.3.193–5.
72
George Macey, A Sermon Preached at Charde in the Countie of Somerset, the Second of March 1597.
Being the First Day of the Assises There Holden (London, 1601), Sig. A3v.
73
William Perkins, A Discourse of Conscience Wherein Is Set Downe the Nature, Properties, and
Differences Thereof: As Also the Way to Get and Keepe Good Conscience (Cambridge, 1596), Sig. A6v.
74
Joseph Hall, Heauen Vpon Earth, or Of True Peace, and Tranquillitie of Minde (London, 1606), C5r.
75
Julius Caesar, Commonplace Book (c.1600?), BL, Add. MS 6038, fo.113r.
119
And John Dodderidge proclaims, “[e]very mane[s] conscience will bee his Judge and Accusor
which God hath placed in him the which will ever bee a great comfort unto him if hee doe well
but will contrarywise checke and trouble him if hee doe ill.”
76
Finally, the preacher Samuel
Smith argues that every individual possesses knowledge of two books: “the Booke of the Law,
and the Book of Conscience: the one shewing a man what hee should doe, the other what he hath
done.”
77
Commenting on Rev. 20:12, “the dead were judged out of those things which were
written in the books, according to their works,” Smith reminds his auditors, “thy conscience is
the booke that shall be opened and that shall bee as good as ten thousand witnesses” and in this
book “are written all our thoughts, words and deeds, so as none shall escape.”
78
This discourse is
not limited by the legal genre or occasion. Philip Sidney writes that “the inward light each mind
hath in itself is as good as a philosopher’s book.”
79

One of the most arresting images of the metaphor is found in Thomas Fella’s
commonplace book (written some time before 1622) which features the effects of a guilty
conscience (Fig. 2).
########################################################
76
John Dodderidge, “Le Charge al grand Jury apud Reading Termino Mich…1625,” BL, Harl. MS 583,
fo.55v.
77
Samuel Smith, The Great Assize or Day of Jubilee (London, 1617), Sig. E5r–v.
78
Ibid., Sig. E4v.
79
Philip Sidney, The Defense of Poetry, in Brian Vickers, ed., English Renaissance Literary Criticism
(Oxford: Clarendon, 1999), 357.
120

Presented in the form of an emblem, the picture depicts the felon’s flight. He strikes a frightening
pose yet it is clear that it is he who is afraid for every follicle of hair on his head is raised; the
medical term for this is phenomenon is “piloerection” (from the Latin “pilus” or hair). Below the
image, the verse intones the lesson of the inescapability of conscience. In the top left corner, dark
clouds unleash what appears to be rain, suggesting that nature itself (under the providence of
God) turns against the villain. Like the Ancient Mariner, he is all alone. The felon’s
conscience—his “troubled” and “guiltie minde”—punishes him with “inwarde greifes.”
80

In citing these examples, my purpose is not to prove that early modern culture was awash
with the language of conscience—surely that is to be expected—but to open a discussion about
########################################################
80
Thomas Fella, “A booke of diverse devices and sorts of pictures with the alphabets of letters,” Folger
Shakespeare Library Digital Image Collection, digital image file name 23670.
Fig.%2.%Thomas%Fella,%Commonplace*book,%c.158541622,%Folger%MS%V.a.311,%f.
66v.%From%the%Folger%Digital%Image%CollecAon,%image%23670.%%
121
how this idea promotes a subjectivity of self-exploration and governance. I argue that the
discourse endows common people with the capacity for jurisprudence. It anticipates the
discourse of natural reason which will become increasingly important, politically and
philosophically, in the seventeenth and eighteenth centuries. The conceit of the “assize at home”
is double-edged. On the one hand, it could be seen to be enmeshing individuals in a retributive
and paranoid legal imaginary in which all misdeeds, however slight, are recorded in a moral
account book. In this sense, the concept of “assize at home” could be viewed as a technique of
subordination. On the other hand, the same conceit could be seen to engender individualistic
sovereignty. Its language of inwardness, even solipsism, could be seen to cultivate (rather than
erase) inwardness and subjectivity.
A Warning advances the already established understanding of the policing nature of
conscience or the mind testifying against itself. The play explores the inward operation of the
law. The sinners (George Browne, Anne Sanders, and Anne Drury) accuse themselves and, at
times, each other, of sin. The chorus-like figure of “Lady Tragedy” declares these sinners
experience “ghastly thoughts and loathing discontents: / So that the rest was promised now
appears / Unrest and deep affliction of the soul” (4.3.12-14). Their expressions range from Anne
Sanders’s “excessive grief” (4.1.95) to Anne Drury’s measured calm on the eve of her execution.
The felons’ inward meditations constitute the narrative tension in the latter half of the play.
Golding remarks that Browne felt “terror and agonie of heart” (218) after the murder. The
play greatly expands on this point. Browne is troubled by remorse, grief, fear, and self-pity.
Upon killing Sanders, Browne hears a “sound,” the “name of Jesu.” He attributes this event to
his guilt-stricken conscience:
Doubtless ’twas my conscience
122
And I am damned for this unhallowed deed.
O sin how hast thou blinded me till now,
Promising me security and rest,
But givest me dreadful agony of soul?
What shall I do? Or whither shall I fly?
The very bushes will discover me.
See how their wounds do gape unto the skies. (3.3.80-87)
Browne’s self-condemnation contains words typically found in sermons and moral treatises. In
place of Golding’s expert lawmen or clergymen who extract confession and provide spiritual
counsel, it is the criminal himself who speaks. Browne’s self-reflective habits continue into the
final scene. Just before jumping to his death (by hanging), Browne accuses himself of
overweening “pride”:
…I held no man once worthy to be spoke of
That went not in some strange disguised attire,
Or had not fetched some vile monstrous fashion
To bring in odious detestable pride. (5.2.80-83)
81

This self-accusation appears to be modeled after moral treatises such as Anthony Munday’s A
View of Sundry Examples (1580), which contains an extensive retrospective on the Sanders
story.
82
Munday claims that Browne had “more respected a vaine pride and prodigall pleasure”
########################################################
81
In Thomas Trevelyon (or Trevillian)’s commonplace book, pride is drawn as a man dressed in green with
the text: “pride is the originall of sinne, and he that hath it shall powre [i.e. pour] out abomination, till at last he be
overthrowen” (“Miscellany,” 1608, Folger Shakespeare Library, MS V.b.232, f.208r). On Trevelyon’s fascination
with that color, see Bruce R. Smith, The Key of Green: Passion and Perception in Renaissance Culture (Chicago:
University of Chicago Press, 2009), 49–50.
82
Anthony Munday, A View of Sundry Examples. Reporting Many Straunge Murthers, Sundry Persons
Periured, Signes and Tokens of Gods Anger towards vs. What Straunge and Monstrous Children Haue of Late
Beene Borne: And All Memorable Murthers since the Murther of Maister Saunders by George Browne, to This
123
than good sense, and he is typical of the “couragious cutter…Sim…swashbuckler…and…
desperate Dick” who corrupt “good and honest company.”
83
According to James Sharpe, early
modern scaffold speeches “help to assert the legitimacy of the power which had brought them
[i.e. the felons] to their sad end.”
84
Browne’s speech could be read as an example of just such a
speech. But these speeches, pace Sharpe, are also live performances which have the potential to
deviate from the official script. As Rebecca Lemon has argued, a scaffold speech might lead to a
“failure of didacticism” if the speaker uses the occasion to exert his or her heterodox agenda.
85

When Browne condemns himself, he exerts his ability as a speaking subject. His
eloquence (even if it seems to mimic orthodox views) allows him to assert himself once more
into the moral-legal universe. According to Renaissance political theory, social belonging
depends on the “bond” of language. According to Cicero, “the principles of fellowship and
society” are discoverable in “reason and speech” and are exemplified in “communicating,
discussing, and reasoning.”
86
Browne’s self-analysis at the gallows emphasizes his capacity as a
reasoning creature and helps to establish his place in a community—even though his tenure in
that community is soon to be cut short by his execution. Had he said little or nothing, he would
have affirmed his status as an outlaw. Instead, he speaks, eloquently, and in so doing, re-asserts
###################################################################################################################################################################################
Present and Bloody Murther of Abell Bourne Hosyer, Who Dwelled in Newgate Market. 1580. Also a Short
Discourse of the Late Earthquake the Sixt of Aprill. Gathered by A.M [London, 1580), B2r.
83
Ibid., Sig. B2r.
84
J. A. Sharpe, “‘Last Dying Speeches’: Religion, Ideology and Public Execution in Seventeenth-Century
England,” Past and Present 107 (1985): 156. Sharpe emphasizes that printed criminal confessions “must have
played a vital role in spreading official ideas about crime and punishment, and about the whole nature of authority
and disorder, down to the lower orders" (162).
85
Rebecca Lemon, “Scaffolds of Treason in Macbeth,” Theatre Journal 54, no. 1 (2002): 28–29. Lemon
argues that “imaginative texts…produced fractured conceptions of the crime of treason and, as a result, supported an
emerging conception of subjects’ rights, based on rights of liberty, law, and conscience” (Treason by Words, 5). On
further instances of subversion in the scaffold speech genre, see Simon Devereaux and Paul Griffiths, eds., Penal
Practice and Culture, 1500-1900: Punishing the English (New York: Palgrave, 2004). See also Lorna Hutson,
“Rethinking the ‘Spectacle of the Scaffold’: Juridical Epistemologies and English Revenge Tragedy,”
Representations 89 (2005): 30–58.
86
Cicero, De Officiis, trans. Walter Miller (Cambridge, MA: Harvard University Press, 1913), 1.16.
124
himself into the common fold. Is this an orthodoxy-affirming scene? Is it a scene affirming the
social contract of language and civility? Yes, indeed, but not exclusively in the way it is
conceived in the Foucauldian tradition. The speech is a manifestation of popular jurisprudence:
even reprobates possess the language of condemnation and accusation.
As previously discussed, several clergymen are specifically named and praised in
Golding’s pamphlet. Yet in the play, the clergy are given little dramatic presence. Drury signals
the presence of a Doctor of divinity when she declares that “I am bound to you…by your counsel
/ I am as well resolved to go to death / As if I were invited to a banquet” (5.4.104-8), and Anne
Sanders remarks she has “been seriously instructed” by the same doctor (5.4.80), yet we do not
actually witness him counseling either women. Instead, the dramatic attention is focused on the
criminals. In prison, Anne Drury advises Anne Sanders to purge her guilty conscience by giving
a full confession:
We have been both notorious vile transgressors
And this is not the way to get remission
By joining sin to sin. (5.4.51-2)
Initially, Sanders resists but then loses her resolve on the day of execution. In the final scene,
Sanders bequeaths her children a “book / Of holy meditations, Bradford’s works” (5.4.168-9).
This text is probably either John Bradford’s translation of Philip Melancthon’s A Godlye treatyse
of Prayer (first published in 1550) or his A frutefull treatise and ful of heauenly consolation
against the feare of death (1564). The latter warns readers of a “spirituall deathe,” the state of
living whilst the “soule is dead.” Bradford illustrates this point by citing the example of the
merry widow: “the Apostle maketh mencio[n] in speaking of winddowes which livyng daintely,
125
being a live in body, are dead in soule.”
87
The parable echoes Sanders’s own spiritual
deprivation. It is a powerful inversion of Aristotelian poetics. For Aristotle, “plot…is the first
principle and…soul of tragedy, while character is secondary.”
88
But in this play, the climax
occurs in Sanders’s eleventh-hour confession. These last scenes strictly evolve around character.
The play achieves a climactic moment when the felon discovers sin and law on her own accord.
8. Legal Wisdom and Tragic Passion
The language of self-accusation and participatory justice are mutually reinforcing: the
former claims every person has a natural ability to discern principles of justice and the latter
mandates (through parliamentary legislation) participation in law because it is “natural” for
people to yearn for law and order. The previous sections analyzed the legal knowledge of the
community and criminal characters. This last and final section considers how writers of crime
literature invent their cultural authority by fashioning themselves as harbingers of legal wisdom.
A recurring theme in the literature examined here is the idea that individuals possess innate
knowledge of “justice.” This knowledge, however, waxes and wanes depending on the company
they keep. Thus, Golding tells readers that “when men regarde not to know God…God giveth
them over to their own lustes“ (225). Golding uses Anne Sanders’s story to strengthen his case.
Through her friendship with Anne Drury, the self-declared occultist-procuress, she loses sight of
the godly path. By the same logic, however, conscience may be rekindled when individuals are
########################################################
87
“But the widow who lives for pleasure is dead even while she lives” (1 Tim. 5:6). Compare this to
Erasmus’s, “when dead words proceed from the heart, a corpse must lie within” (Erasmus, “The Handbook of the
Christian Soldier: Enchiridion Militis Christiani,” in Collected Works of Erasmus: Spiritualia, Enchiridion, De
Contemptu Mundi, De Vidua Christiana, trans. Charles Fantazzi and John W. O’Malley [Toronto: University of
Toronto Press, 1988], 29).
88
Aristotle, The Poetics, trans. W. Rhys Roberts and W. Hamilton Fyfe (London: Heinemann, 1927),
1450b.
126
exposed to positive influences. A Warning presents the tragic poet as just such an intermediary
who perfects the moral sensibility of the audience.
In the opening scene, Lady Tragedy, a choric figure who makes intermittent appearances
throughout the play, contemplates the transformative power of her art:
I must have passions that must move the soul,
Make the heart heavy, and throb within the bosom,
Extorting tears out of the strictest eyes,
To rack a thought and strain it to his form
Until I rap the senses from their course;
This is my office. (38-43)
Extort, rack, strain, rap. This is the language of affliction and torture. Tragedy claims to be able
to pound the audience’s senses from their normal “course” in order to “move” their souls. The
passage not only describes the affective nature of tragedy, but it also introduces an argument
about the potential function of drama in a post-Reformation spiritual economy in which fear and
sorrow are understood to be signifiers of godly wisdom. According to preachers and other moral
writers, the path to spiritual salvation is paved with pain. By causing audiences to suffer and to
grieve, tragic drama instills a dose of godly fear, ultimately bringing audiences closer to the
divine. But Tragedy’s argument about her art and its potential ability to inspire spiritual
transformation comes under attacked. Comedy observes that all the popular tragedies are more
invested in staging spectacle than moral matter. According to Comedy, far from challenging
audiences to stretch their intellectual and emotional capacities—to “rack a thought and strain it to
his form”—tragic drama titillates audiences with such sensational scenes as the “whining
ghost…screaming like a pig half stickèd” (1.1.48) and “two or three like to drovers…stabbing
127
one another” (1.1.54-5). These are references to blood-soaked revenge tragedies such as Thomas
Kyd’s The Spanish Tragedy (c.1587). The opening quarrel between Comedy and Tragedy signals
the playwright’s awareness of the existence of a gap between the theoretical aim of his art and
the actual outcome. Yet he does not abandon the idea of tragedy’s ethical potential for the theme
is revisited in a later scene—and this time, the analysis flows without any interruption.
The scene in question precedes the arrest of Browne. It begins with Master James, Master
Barnes, and the Mayor of Rochester trading tales of murder and detection. Many of their
examples are miraculous or providential in nature. For example, they cite instances of
spontaneously bleeding corpses (cruentation or bier-rite) and other providential “signs” which
lead to the discovery of murder.
89
By modern standards, the characters’ understanding of
forensic evidence appears irrational. But in fact it is consistent with writings on the subject found
in contemporary legal literature. For example, The Countrey Justice (1618), a popular handbook
for Justices of the Peace, instructs justices to observe “Markes or Signes” by which “Felons &
other like offendors” may be identified including “The change of his countenance, his blushing,
looking downewards, silence, trembling,” “The measure of his foote, or horse foote,” and “The
bleeding of the dead bodie in his presence.”
90

########################################################
89
For an additional reading of cruentation in this play, see Mukherji, Law and Representation, 113–116.
Additional examples are presented in Steve Hindle, “‘Bleedinge Afreshe?’: The Affray and Murder at Nantwich, 19
December 1572,” in The Extraordinary and the Everyday in Early Modern England, ed. Angela McShane and
Garthine Walker (London: Palgrave, 2010), 224–45; John G. Bellamy, Strange, Inhuman Deaths: Murder in Tudor
England (Westport: Praeger, 2005), 83; David Atkinson, “Magical Corpses: Ballads, Intertextuality, and the
Discovery of Murder,” Journal of Folklore Research 36, no. 1 (1999): 1–29. Recently, historians have begun to
point to a curious disconnection between literary and historical accounts of criminal detection. Popular literature
tended to emphasize miraculous modes of discovery. Yet medical forensics was becoming more scientific and
empirical. A Warning is not quite so advanced that it depicts medical forensics on stage, yet it is not so disconnected
from forensic science that it presents only miraculous discoveries. See Malcolm Gaskill, Crime and Mentalities in
Early Modern England (Cambridge: Cambridge University Press, 2000), esp. ch. 7.
90
Michael Dalton, The Countrey Justice, Conteyning the Practise of the Justices of the Peace out of Their
Sessions (London, 1618), Sig. Aav.
128
The last of Master James’s stories is of special interest to me. After giving several
examples of miraculous discoveries, Master James recounts a story of a woman at King’s Lynn
who confesses to murdering her husband after watching a play whose plot featured a murderous
wife:
I’ll tell you sir one more to quit your tale:
A woman that had made away her husband,
And sitting to behold a tragedy
At Lynn, a town in Norfolk,
Acted by players travelling that way,
Wherein a woman that had murthered hers
Was ever haunted with her husband’s ghost.
The passion written by a feeling pen
And acted by a good Tragedian,
She was so moved with the sight thereof,
As she cried out the play was made by her,
And openly confessed her husband’s murder.
The play in question was identified by Thomas Heywood (writing in the 1610s) as Friar
Francis.
91

########################################################
91
Thomas Heywood in An Apology for Actors (1612) retells a similar story in the context of his defense of
dramatic poetry (against attacks such as Stephen Gosson’s The Schoole of Abuse, 1579):
At Lin in Norfolke, the then Earle of Sussex players acting the old History of Fryer Francis, &
presenting a woman, who insatiately doting on a yong gentleman, had (the more securely to enjoy his
affection) mischievously and secretly murdered her husband, whose ghost haunted her, and at divers
times in her most solitary and private contemplations, in most horrid and fearefull shapes, appeared,
and stood before her. As this was acted, a townes-woman (till then of good estimation and report)
finding her conscience (at this presentment) extremely troubled, suddenly skritched and cryd out Oh
my husband, my husband! I see the ghost of my husband fiercely threatning and menacing me. At
which shrill and u[n]expected out-cry, the people about her, moov’d to a strange amazement, inquired
129
Master James’s story contains two interrelated claims about the social value of plays. The
first one is specifically concerned with establishing the value of the genre of the domestic
tragedy. Domestic tragedy functions as a moral-legal instrument, not unlike a sermon, which
pricks the conscience of the audience. In its true-to-life depiction of the transgressions committed
by ordinary people (characters that closely resemble the audience in dress, action, and speech), a
domestic tragedy momentarily erases the audience’s sense of fiction and reality. This confusion
is catastrophic for those who harbor or try to suppress guilt—as proven by the example of the
woman at King’s Lynn. These plays thus serve as extensions of the law: to reveal sin, to heal
breaches of conduct, and to restore order by eliminating the bad seed. Spoken shortly before the
arrest of Browne, Master James’s story foreshadows the final act which features the arraignment,
sentencing, and execution of the murderers.
###################################################################################################################################################################################
the reason of her clamour, when presently un-urged, she told them, that seven yeares ago, she, to be
possest of such a Gentleman (meaning him) had poysoned her husband, whose fearefull image
personated it selfe in the shape of that ghost: whereupon the murdresse was apprehended, before the
Justices further examined, & by her voluntary confession after condemned. That this is true, as well by
the report of the Actors as the records of the Towne, there are many eye-witnesses of this accident yet
living, vocally to confirme it” (An Apology for Actors [London, 1612], Sig. G1v–G2r).
Unfortunately, it is impossible to locate the “recordes of the towne” to which Heywood alluded. In an e-mail
response to my inquiry dated 15 May 2013, Susan Maddock, Principal Archivist of the Norfolk Record Office,
explains that “no Lynn Sessions records are now known to survive from earlier than 1620.” On the anti-theatrical
debate and Heywood’s particular contribution to it, see Jonas B. Barish, The Antitheatrical Prejudice (Berkeley, CA:
University of California Press, 1981).
When did that performance of Friar Francis at King’s Lynn occur? Knowing the answer to that question
would help greatly to set a date for the composition and performance of A Warning—yet there is a lack of evidence.
According to G. R. Proudfoot, the Earl of Sussex’s Men visited King’s Lynn on two occasions: in 1586 (along with
the Queen’s Men) and in 1592/3 (ed., Records of Plays and Players in Norfolk and Suffolk [Oxford: Malone Society,
1980], 65). It is unknown whether Sussex’s Men performed Friar Francis on either of these occasions. What is
known, thanks to Philip Henslowe’s diary, is that Sussex’s Men performed Friar Francis in January 1593/4 at the
Rose theater (R. A. Foakes, ed., Henslowe’s Diary, 2
nd
ed. [Cambridge: Cambridge University Press, 2002], 20).
Henslowe’s receipts read: “Rd at frier frances the 7 of Jenewary 1593…iij
li
js,” “Rd at frier frances the 14 of
Jenewary 1593…xxxvj
s
,” “Rd at ffrier ffrances the 20 of Jenewarye 1593…xxx
s
.” It seems the play attracted enough
audience interest to be staged thrice (on 7, 14, and 20 Jan.). This strongly suggests, but by no means proves, Friar
Francis had a successful performance at King’s Lynn in 1592/3 or that the January performances were a direct result
of the King’s Lynn performances.
130
The second argument, more ambitious than the first, posits a hierarchical relationship
between aesthetic and legal knowledge. Whereas the knowledge of the officers of the law is
determined by the physical evidence—coroners investigate forensic clues when they can detect,
measure, and compare them—the tragic poet possesses secret insight into people’s concealed,
inward “passions.” A poet’s knowledge is a “feeling” reason and it allows him to create fictions
which stir the hearts of audiences. If this logic sounds familiar, then it is likely because the
playwright is drawing inspiration from “defenses” of poetry and drama which were then popular.
In Defense of Poetry (c.1586), Philip Sidney argues that “[t]ragedy openeth the greatest wounds,
and showeth forth the ulcers that are covered with tissue.”
92
Furthermore, Sidney said that a poet
was a “right popular philosopher” who opened the “gates of popular judgment” and used his
“wit,” “invention,” and “heart-ravishing knowledge” to penetrate mysteries, to see beyond
phenomena to noumena.
93
Our playwright was versed in the defense of poetry and was tying to
advance the cause in his own fashion.
The King’s Lynn story does not appear to be grounded in historical fact. But the story
nonetheless enjoyed a rich literary afterlife. In addition to the reference in A Warning and
Thomas Heywood’s An Apology, the story is alluded to, albeit in a roundabout fashion, in
Shakespeare’s Hamlet (1602). In a passage echoing Master James’s speech, Hamlet states:
I have heard that guilty creatures sitting at a play
Have by the very cunning of the scene
Been struck so to the soul that presently
########################################################
92
Sidney, A Defence of Poetry, 363. Kathy Eden explains that in his comparison of poetry and law, Sidney
assimilated Aristotle’s Poetics, Rhetoric, and De Anima and integrated classical poetics with ideas of law drawn
from the New Testaments, which “not only instills in its audience amor virtutis [love of virtue], but does so
precisely by moving their will” (Poetic and Legal Fiction in the Aristotelian Tradition [Princeton: Princeton
University Press, 1986], 162).
93
Sidney, A Defence of Poestry, 353, 340.
131
They have proclaimed their malefactions. (2.2.591-4)
94

Inspired by that example, Hamlet mounts his own “cunning” scene and stages the Mousetrap to
“catch the conscience of the king” (2.2.606-7). To set his trap, Hamlet invents a “speech of some
dozen or sixteen lines” which he adds to the play (2.2.543). But it seems Hamlet has been
preparing for theatrical work for a while. Addressing the players, Hamlet reveals he has long
been observing their work; he claims to have discerned “excellence” in their performances even
though “the play…pleased not the million; ’twas caviar to the general” (2.2.439). Hamlet, we
might say, is a version of Sidney’s kind of “right popular philosopher” whose poetic sense equips
him to excel in both aesthetic and legal judgment. Hamlet’s rehearsal with the players occurs
before the staging of the Mousetrap. And this sequence helps to emphasize the idea of the
connection between aesthetic discernment—taste—and legal knowledge. Hamlet not only acts
the part of the amateur playwright and theater manager, he also performs the part of the
exemplary audience member for he declares he will “observe his [Claudius’s] looks; / I'll tent
him to the quick: if he but blench, / I know my course.” Here, Hamlet cues audiences to similarly
scrutinize Claudius’s face for telltale signs of guilt. If Claudius blinks or flinches, Hamlet will
have proof of his guilt. Can all the audience members detect Claudius’s “blench”? Perhaps not.
Even so they are spurred by Hamlet’s directions to imagine it. Hamlet’s question, “[d]idst
perceive?” is directed at both Horatio and the audience. Did we perceive it? Horatio’s affirmative
answer, coupled with the audience’s tacit agreement, concludes the exercise in collective
discernment, which began with the staging of the play-within-the-play and ends with Hamlet’s
discovery of Claudius’s manifest guilt. His time among the actors has sharpened Hamlet’s
########################################################
94
William Shakespeare, Hamlet, in The Complete Works, ed. Stanley Wells and Gary Taylor, 2nd ed.
(Oxford: Clarendon, 2005), 681–718.
132
instincts for detection. Might the same be said of the audience? Shakespeare, like the playwright
of A Warning, makes a strong case for the beneficial moral “return” of theater.
In The Passions of the Minde (1604), Thomas Wright catalogues those who “perfitely
understan[d] the natures and proprieties of mens passions.” His list comprises “godly
preacher[s],” “Embassadours,” “Lawyers,” “Magistrates,” and “Captaines.”
95
These men know
how to “stirre a Passion or Affection in their Hearers.” Curiously, there is no mention of poets or
dramatists. Perhaps this is as good a reminder as any of the still-uncertain social status of
theatricalists. The author of A Warning reacts to the question of play’s value by locating his
chosen genre, the domestic tragedy, in the law. But instead of a magistrate taking center stage in
the judicial universe, it is the tragic poet.
At the same time, the play attempts to transform the audience from passive viewers to
active evaluators of evidence by recreating the kinds of epistemological hurdles encountered by
jurymen or magistrates. Barbara Shapiro describes the courtroom as a “site of knowledge
making…setting where a variety of participants engage in creating or determining the ‘truth’ of
something by a set of site-specific rules.”
96
In A Warning, similar epistemological conditions
occur through the introduction of nuanced, even conflicting, pieces of the evidence about the
accused, which allow audiences to virtually play the part of trial jurors at an assize. For example,
the play tests the judgment of the audience with regards to the question of Anne Sanders’s
“malice.”
97
Lay participation in the law, enacted by the fictional community on stage, is reified
in the theater during the time of the performance.
########################################################
95
Wright, The Passions of the Minde, Sig. B1v.
96
Shapiro, A Culture of Fact, 30.
97
The play’s apparently ambivalent representation of Anne Sanders has inspired recent critics to shift the
blame from Browne and the women to George Sanders himself. It has been argued that Sanders’s love of money
indirectly causes his downfall. Thus, Mihoko Suzuki argues “Sanders...focuses his energy...on his own economic
advancement, spending most of his time at the Royal Exchange...[t]he husband's absence, and specifically his
133
The play raises the issue of Anne Sanders’s malice only to immediately cast doubt on it.
In some scenes, Anne Sanders’s words and actions fit the “character” of a guilty conspirator as
envisioned by Golding. When the Lord Justice reads the indictment to her, she vehemently
denies her part in the murder: “Not guiltie” (5.2.196). When a second Lord asks her why she
wears a “white rose in [her] bosome,” she explains that the rose is a “token of my spotless
innocence” (5.2.210). But a telltale sign contradicts her denial: the rose transforms its color from
white to “another hue” (possibly red or black) signaling her guilt (5.2.270).
98
This trick of
theater—cruentation of an object rather than a body—exploits the audience’s local legal
knowledge. Still, she insists her “soule is…As free from murther as it was at first” (5.2.212).
Since the audience has already heard her private confession (in her asides), her public denial to
the judge sounds not merely disingenuous but perjured.
Yet Sanders’s malice is called into question in a dumb show presentation by Tragedy.
99

In this show, Drury “thrusts” Chastity from Sanders. The mirroring of the embrace between
Drury and Roger and that of the Furies forces an analogy between the two parties. As for Anne
###################################################################################################################################################################################
excessive interest in monetary gain, draws his wife out of his house and makes her, and ultimately Sanders himself,
vulnerable to predators like Browne” (“Gender, Class, and the Social Order in Late Elizabethan Drama,” Theatre
Journal 44, no. 1 [1992]: 35). This is perhaps an overstatement. The play takes pain to show Sanders in an
exemplary husband and caring father. For instance, despite his frequent trips into the city, Sanders returns at midday
to share a meal with his family. Sanders’s movement around the city is not necessarily to be understood as a fatal
flaw of character. Despite my disagreement with this particular interpretation, I support this and other critical
attempts to study the play’s multilayered and at times contradictory analysis of Sanders’s (and Browne’s) motives
for killing.
98
The colors are suggested in Cannon’s “Introduction” to A Warning for Fair Women: A Critical Edition,
54.
99
The dumb show consists of the following: “The Furies go to the door [to] meet [Anne Sanders, George
Browne, Mistress Drury, Roger, Lust and Chastity. Enter] Lust [who leads Browne onto the stage and then leads]
Mistress Sanders [who is] covered with a black veil. Chastity [enters dressed] all in white [and tries to pull Anne
away from Lust] by pulling her softly by the arm. Drury [enters and thrusts] Chastity away. [Roger then enters the
stage]. They [all] march about, and then sit [at] the table. The Furies fill [the mazers with] wine. Lust drinks to
Browne, he drinks to [ Anne and ] she pledgeth him. Lust embraceth [Anne and] she thrusteth Chastity from her:
Chastity wrings her hands and departs. Drury and Roger embrace one another, the Furies leap and embrace one
another.”
134
Sanders, Tragedy calls her a “poor deluded soul” (2.2.31) who “drinkes that poysoned draught, /
With which base thoughts henceforth infects her soule, / And wins her free consent to this foule
deed” (2.2.43-45). The “draught” refers to the wine given to her by Browne, which implies that
she is drunk beyond her senses. The dumb show therefore appears to mitigate Sanders’s
culpability.
Each of the central characters is associated with a central image that illuminates some
aspect of their character: George Saunders is compared to “a great tree” (5.2) and Browne is a
“ravenous wolfe” (3.2.17). For Anne Sanders, it is wax. According to Drury, “she is young and
fair, / And may be tempered easily like wax” (1.4.29-30). The palm-reading scene between
Drury and Sanders confirms the impression that the latter is easily manipulated. When Drury
declares that Sanders will soon become a widow, Sanders quietly submits herself to her
“destiny”; in her words, “I must submit my selfe, / To that which God and destenie sets downe”
(2.1.188-9). Like a wax figure, Sanders is shaped into several forms—the adulteress and the
accomplice—by Drury and Browne. Sanders’s swayable nature is highlighted once more in the
market scene in which she claims to doubt the lastingness of a “perfume” but nonetheless
consents to buy it because she believes in the merchant’s “word”: “But trust me, the perfume I
am afraid will not continue, yet upon your word I’ll have them too” (2.1.31-5).
100
These scenes,
taken together, portray Sanders as an indecisive person; she doubts her own judgment and allows
herself to be persuaded by others to do things which are against her best interest. Yet this very
weakness in her character serves to dilute her guilt; she appears to lack the qualities, the pre-
meditated “malice,” of a hardened criminal.
########################################################
100
The primary literature attacking the “evils” of cosmetics is numerous. See, for example, Thomas Tuke,
A Discourse against Painting and Tincturing of Women. Wherein the Abominable Sinnes of Murther and Poysoning,
Pride and Ambition, Adultery and Witchcraft, Are Set Forth and Discouered. Whereunto Is Added The Picture of a
Picture, Or, the Character of a Painted Woman (London, 1616). I am grateful to Emma Whipday for this reference.
135
In the play, the audience enjoys a privileged, perhaps superior, position to the Lord
Justice character on stage; it sees more of the characters’ private interactions than he does. But
the position also entails risk for the audience is exposed to uncertainties about the characters’
motives. Deviating from the official version of the Sanders story, the one which exists in the
legal documents and in Golding’s pamphlet, the play develops several ways of reading Anne
Sanders’s moral corruption. Thus, while the fictional judge may declare that Sanders
“maliciously conspired” to kill her husband, the audience watching the play may entertain
doubts. The audience has witnessed Sanders’s manipulation by Drury and Browne and it has
heard her heartfelt remorse. Anne Sanders’s malice or mens rea is a far less certain conclusion in
the play than in Golding’s pamphlet.
In the epilogue of A Warning, Tragedy appears again and asks audiences to “bear with
this true and home born Tragedy / Yielding so slender argument and scope / To build a matter of
importance on” (5.4.191-3). A similar scene occurs at the end of Arden of Faversham (1592)
when Franklin, an authoritative figure who has acted throughout the play as an investigator and
moral commentator, concludes with an apology: “Gentlemen, we hope you’ll pardon this naked
tragedy.” The tragedy is “naked” in the sense that it lacks the pyrotechnic embellishments of
revenge tragedies, the “whining ghost…screaming like a pig half stickèd.” But the apology is
soon qualified with a claim about the benefits of such simplistic representation. Franklin states,
“simple truth is gracious enough, / And needs no other points of glozing stuff.”
101
In both cases,
the self-deprecating apology barely disguises the naked ambition of the playwright. Supported by
a wave of “defenses” of poetry and drama popularized by Sidney and other critics, playwrights
of domestic tragedies were forthright about asserting the plays’ ethical and legal value. Hence,
########################################################
101
Anon., Arden of Faversham, ed. Martin White (London: Norton, 1982), Epilogue ll.14, 17–18.
136
the “apologies” function more like manifestoes marking the revolutionary objectives of the
genre: the fusion of classical principles of tragedy with early modern Protestant (especially
Calvinist) notions of virtue and morality, the development of a mythology about the existence of
a symbiotic relationship of law and literature, and the assertion of a connection between moral-
legal and aesthetic judgment.
By embracing its “vulgar” (in the sense of common) subjects—both the characters
depicted on stage and the audience off stage—A Warning strengthens the notion of popular
jurisprudence or lay legal knowledge. The essence of domestic tragedy is that it is based on
documented events, a “subject too well known” and “not feigned” (1.1.88-9). Yet it is the
particularity of domestic tragedy which makes it so relevant to the ordinary playgoer for it
speaks to his or her own condition, the “here and now.” Whereas Plato viewed the “feigning”
poets as threats to the republic (for they represent not truth but a version of it), Elizabethan
playwrights defended their art by aligning it with the law. The anonymous author of A Warning
even tries to exceed Aristotle’s defense of drama. Instead of faithfully repeating Aristotle’s
arguments about the purgative effects of drama—as a release of pent-up negative emotions
(catharsis)—he claims his work has the potential to inspire greater, fuller, more rigorous legal
engagement on the part of the public, whether it is through a strengthening of participatory
justice or self-accusation. Tragedy hones legal wisdom, action, and instinct. Tragedy “discovers”
the moral truths which elude the ken of law.
#
137
Chapter 3
Imagining Magistracy in Shakespeare’s Henry IV, Part 2
*
Sixteenth- and seventeenth-century fictions concerning popular jurisprudence placed
great value on self-accountability and judgment. Preachers routinely compared conscience to a
book into which every transgression was recorded. They reminded audiences that tyrants, great
or petty, would get their just deserts on the Day of Judgment.
1
They claimed that every person,
from the experience of communal life and tradition and from the seed of knowledge implanted
by God, possessed access to legal knowledge. Their legal characters speak and act quite
differently from “professors of law.” Instead of citing rules and exceptions, they evoke notions of
universal justice. From a procedural standpoint, there appears to be little method behind their
actions—but that is precisely the point. Instead of relying on lawyers’ “logic” developed through
textual study, these lay legalists discover the solution through providential intervention, such as a
miraculous “sign” manifested in nature or a flash of moral knowledge produced through
conscience.
One of the goals of this project is to illustrate the contribution of religious and moral
writers to the dissemination of popular jurisprudence. Instead of mirroring the top-down scheme
of legal knowledge (found in lawyers’ writing) which envisions legal knowledge trickling down
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
1
In the words of the preacher Richard Carpenter, common sorts of tyrants plaguing contemporary society
include “mercilesse prejudicate bribe-taking Magistrates, mercenary illiterate soule-starving Ministers, usurarious
extorting State-spoyling money-mongers, sacrilegious Church-polling Patrons, and rent-racking Land-lords and
oppressors, covetous time-serving Court-officers, and unconscionable Lawyers, with that contagious crue of brothel-
hunters, Alehouse-hunters, and all other blasphemous Sabbath-breaking ruffians, revellers, and scornefull mock-
Preachers” (The Conscionable Christian: Or, The Indeuour of Saint Paul, to Haue and Discharge a Good
Conscience Alwayes towards God, and Men: Laid Open and Applyed in Three Sermons. Preached before the
Honourable Judges of the Circuit, at Their Seuerall Assises, Holden in Chard and Taunton, for the County of
Somerset. 1620. By Richard Carpenter, Doctor of Diuinity, and Pastor of Sherwell in Deuon [London, 1623], Sig.
D1v).

138
from the “professors” to the “students” and finally to the “people,” preachers and moral authors
argue that knowledge of the law (by which they meant God’s law or the divine law) enters the
hearts of men through the spirit. Hence, every person could know the law and follow it. This
populist notion of universal legal knowledge is accompanied by attacks on the narrow learning of
lawyers. Tapping into their audience’s frustration with the legal professional class, religious and
moral writers claim that a lack of professional training is not a disadvantage. Untutored legal
knowledge is a purer form of jurisprudence. Preachers use various metaphors for conscience—
such as the “assize at home”—to emphasize that all people, including sinners, have access to
knowledge of God’s law. Just as an assize court metes judgment on the guilty party, so
conscience “testifie[s] in respect of things to be done, either to excite and incourage, or to
restraine and bridle; in respect of things done well, or wickedly, to excuse and comfort, or accuse
and terrifie.”
2

The suspicion against professional legal learning is evident in Foxe’s Acts and
Monuments. The book portrays all kinds of people, from learned bishops and lawyers to illiterate
laborers, claiming personal knowledge of God’s law. In Foxe’s text, the elect argue that godly
fear was a precondition for wisdom and they signal their wisdom through “gushing tears” and
humble, idiomatic speech. Crime literature, as well, shows how legal wisdom exists
independently of a professional education. Popular jurisprudence moves from the pulpit to the
playhouse to the press for ever-wider distribution. Every person is a magistrate. The law is
known through the heart. Legal wisdom is indistinguishable from conscience or moral wisdom.
Religious and poetic feeling shape legal understanding.
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
2
Ibid., Sig. B1v.
139
So far, the research has centered on the language and subjectivity of legal characters who
appear at legal events: the heresy examination or the criminal trial. The previous chapters
explored the ethos of laypeople as they sought to justify their transgressions (whether real or
invented) to their judges. This chapter expands the focus to take into account what non-
professionals say about their legal superiors. Popular jurisprudence, in this respect, transgresses
social and economic barriers as it directs advice, and warnings, at the ruling class: judges and
magistrates. In this chapter, I show how a gap opens between popular and professional
discourses on the issue of magistracy. In assize sermons and moral treatises, genres which
address common readers, authors place a good deal of emphasis on the use of Christian feeling in
judgment. They imagine magistrates as loving “fathers” of the people. They argue that it is this
love which endows judges with wisdom. Legal professionals, in contrast, conceive magistracy in
terms of the performance of majesty and the deployment of reason.
In Tudor England, the topic of magistracy drew a continuous stream of commentary from
popular and professional authors. Many offered prescriptive ideas about how a magistrate should
behave, how he should speak, how he should feel, and, finally, how he should present himself
before the people he came to judge. What accounts for Elizabethan culture’s great fascination
with magistracy? There are several ways to answer the question. First, the literature on
magistracy served as a pretext for political debate. “Magistracy” encompassed all degrees of
governance. The word stems from the Latin “magister” which signifies “master.” Kings, chief
justices, judges, local justices, and heads of households were all, in a sense, masters. As the
preacher Henry Smith explains, “[t]here is difference betweene Kings & inferior Magistrates: for
the Prince is like a great Image of God, the Magistrates are like little Images of God.”
3

""""""""""""""""""""""""""""""""""""""""""""""""""""""""
3
Henry Smith, “The Magistrates Scripture,” in The Sermons of Henrie Smith, Gathered into One Volume.
Printed according to His Corrected Copies in His Life Time (London, 1593), Sig. Yy7v.
140
Consequently, authors used magistracy to talk about potentially dangerous issues like
sovereignty and kingship.
4
Second, it could be argued that because the writing on magistracy
was so well established, the genre offered writers a way to develop their cultural capital. This is
especially true for writers who lacked political or poetic authority. Writing a sensational murder
pamphlet, while potentially lucrative, did not build an author’s literary prestige. But writing a
piece on magistracy could put the author on the moral high ground, a position which could be
parlayed into another advantage in the future. The third possibility, and the one which I elaborate
below, looks at magistracy literature (at least, the popular kind) as an outgrowth of a general
disenchantment with England’s mediated legal system.
Mediation occurred at multiple points in the legal system.
5
To quote Cynthia Herrup, in
criminal law, the “Privy Council relied on the judges; the judges relied on the justices; and the
justices waited upon the constables who served as grand jurors and upon the men who served as
petty jurors.”
6
Furthermore, the legal system exerted its power, not always through spectacular
violence, but through a “medley of ventriloquized abstractions.”
7
This is especially true of the
civil law courts which were tasked with overseeing the disputes of private parties. Within such a
system, ordinary people had fleeting contact with the officers of the central courts. Most of the
legal business, especially pertaining to litigation, occurred through documents. Andy Wood
observes that in this period, “litigation snowballed documentation: it validated the growing
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
4
Examples include Thomas Elyot’s The Boke of the Governor and A Mirror for Magistrates, based on John
Lydgate’s Fall of Princes (1431-39).
5
For a concise description of the “delegation of authority” and “embodied mediation” in law, see Holger
Schott Syme, Theatre and Testimony in Shakespeare’s England (Cambridge: Cambridge University Press, 2012), 6.
6
Cynthia B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century
England (Cambridge: Cambridge University Press, 1987), 56.
7
Cynthia B. Herrup’s comments for the panel on “Publicizing Magistracy in Early Modern Britain: Image,
Performance, Text,” North American Conference on British Studies, Portland, OR, 2014.
141
power of the written word while simultaneously generating increased documentation which later
generations would then mobilize in further litigation.”
8

Recently, Holger Schott Syme has argued that the sixteenth and seventeenth century “did
not…witness a crisis of representation, but rather relied thoroughly on deferral, mediation, or
representation as engines of authority.”
9
In other words, Tudor subjects took for granted the
existence of a “common structural logic” about mediation and representation which they
confronted daily in “legal, historiographical, and political modes of authorization.”
10
This
understanding, however, does not quite account for the vociferous complaints (heard in sermons,
moral treatises, plays, and other popular genres) against the practice of legal deferral. It is true
that people were accustomed to having mediated legal experiences. But they were unhappy with
that reality. Their disgruntlement was heard—and given lasting textual form—by the literary
community. The popular literature on magistracy captures the pervasive animus against “law’s
delay.”
11

Occupying a middle position in the legal structure, magistrates attracted a certain amount
of popular suspicion. Was the suspicion warranted? That the Star Chamber existed, in part, to
investigate, to quote J. H. Baker, “alleged perversion of justice, by corruption, extortion,
maintenance, champerty, perjury, subornation, embracery, and other abuses of legal procedure,”
surely speaks volumes.
12
William Lambarde’s discussion of partiality and bribery (in “The
Offences of publike persons” in Archeion and in his manuscript “Against Auricular Information
of Judges”) substantiates the idea that legal corruption was widespread in Elizabethan
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
8
Andy Wood, The Memory of the People: Custom and Popular Senses of the Past in Early Modern
England (Cambridge: Cambridge University Press, 2013), 257.
9
Syme, Theatre and Testimony, 2.
10
Ibid., 19.
11
William Shakespeare, Hamlet, in The Riverside Shakespeare (Boston, MA: Houghton, 1974), 1135–97,
3.1.71. This phrase comes from Hamlet’s “To be or not to be” speech.
12
J. H. Baker, An Introduction to English Legal History (London: Butterworths, 2002), 118.
142
jurisdictions. After comparing what Lambarde printed and what he wrote in manuscript, Wilfrid
Prest concludes that Lambarde was particularly sensitive to the “subtle ways in which a case law
can be prejudiced: ‘by resuming it to a private hearing, by drawing it into Long and tedious
prosequution, by commiting it to a partial reaporte, by referring it to some Unequal
arbitrement.’”
13
It is important to add here that Lambarde’s reflections connect him, rhetorically,
to similar complaints found in popular writing. The “bad judge” is a common character in Tudor
and Stuart drama—and the analysis of his venality was often more biting in the dramatic sources
than in Lambarde’s writing.
14

Lower order magistrates like justices of the peace mediated disputes between local
parties. Meanwhile, the judges of the central courts represented royal authority during their
twice-yearly assize visits. In addition to their customary duties of passing legal judgment, these
assize judges were also expected to “embod[y] the majesty of the sovereign.”
15
Thomas Elyot
defines “maiesty” as the source or “fountaine of all excellent maners” for the “governour.”
16
A
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
13
William Lambarde qtd. in Wilfrid Prest, “William Lambarde, Elizabethan Law Reform, and Early Stuart
Politics,” Journal of British Studies 34, no. 4 (1995): 471–2. Archeion, or Commentaries on the Courts of England
first circulated as a manuscript beginning in 1591. On the history of Lambarde’s book, see Prest’s article as well as
the “Introduction” and “Appendix” in William Lambarde, Archeion Or, a Discourse Upon the High Courts of
Justice in England, ed. Charles H. McIlwain and Paul L. Ward (Cambridge: Cambridge University Press, 1957).
There is evidence that Lambarde’s book was popular among law students. The Huntington Library copy belonged to
an “Isaac. Preston, Lincoln’s Inn.” No such person can be found in the DNB. But one Isaac Preston of Lincoln’s Inn
was “called to the bar” on 24 January 1732 during the reign of George II (William Paley Baildon, The Records of
the Honorable Society of Lincoln’s Inn: 1660-1775, vol. Vol. 3 [London: Lincoln’s Inn, 1899], 299).
14
Ben Jonson presents judicial corruption as a fact of (urban) life. Wellbred tells Ned Knowell that if the
latter is at all dissatisfied by the divertissement of London (which he promises to provide), then “draw your bill of
charges, as unconscionable as any Guildhall verdict will give it you, and you shall be allowed your viaticum”
(1.2.79-81) (Every Man in His Humor, in The Complete Plays of Ben Jonson, ed. G. A. Wilkes, Vol. 1 [Oxford:
Clarendon, 1981], 176-273). In “Epitaph on an Honest Lawyer,” Jonson rhymes that “God works wonders now and
than, / Here lies a Lawyer an Honest Man (The Poems, The Prose Works, C. H. Herford, C. H. and P. Simpson. Ben
Jonson. Vol. 8 [Oxford: Clarendon, 1947], 444). On the subject of early modern judicial satire, see E. F. J. Tucker,
“Intruder into Eden: Representations of the Common Lawyer in English Literature, 1350-1750. Columbia: Camden,
1984.
15
Herrup, The Common Peace, 51.
16
Thomas Elyot, The Boke Named the Gouernour (London, 1531), Sig. N[8]r.
143
governor may express his “majesty” through his face and body, his “beautie or comelynesse in
his countenance.” But more importantly, he must be eloquent, which entails, for Elyot, the
proper use of “langage / & gesture apt to his dignite / and accommodate to time / place / &
company.” Such a performance of majesty “caste[s] on the beholders and herers a pleasaunt and
terrible reverence” like the “sonne” which shines its “beames” on the earth.
17
Judges of the
assize on the king or queen’s commission were expected to replicate the “pleasaunt and terrible
reverence” of their sovereign. But judges, it hardly needs to be said, were not sovereigns. They
could never fully project the sacred aura associated with the monarch. Thus, judges (and lesser
magistrates such as justices of the peace) were betwixt and between rulers and the ruled.
Socially, they occupied a nebulous space between the aristocracy and the citizenry. Spatially,
they traversed the urban and the rural landscapes. Magistrates were liminal beings.
As a result of their structural liminality, magistrates existed at the intersection of
conflicting legal ideologies, popular and professional.
18
On the one hand, as we heard, the
magistrate had to exemplify a form of governance that was aloof, mighty, and “majestic.” On the
other hand, he was required to embody justice that was intimate, merciful, local, comforting,
restorative, and homespun. Religious and moral authors articulated the popular opinion about
magistracy. Magistrates should cultivate their “dignity” yet, at the same time, they should “love”
the people as a father loved his family. When a magistrate encountered the poor, for example, he
should respond with attention, sympathy, and kindness. Preachers routinely reminded their
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
17
Ibid.
18
Was this structural liminality with regards to magistracy unique to early modern England? No, it was not.
Aristotle observed that “men require a judge to be a middle term or medium” and called judges “mediators.”
Aristotle, The Nicomachean Ethics, trans. H. Rackham (Cambridge, MA: Harvard University Press, 1926), 5.4.7.
This sentence comes in the context of his discussion about justice as a the “mean” or the “arithmetical proportion
between the greater and the less.” (ibid). Yet the observation acutely captures the structural liminality of the
Elizabethan magistrate.
144
readers of the importance of Christian love in judgment: “you are tearmed Fathers: direct you
must, correct you may, but all in love.”
19

However, legal professional literature did not require judges to “love” the people. Judges
and lawyers focused on the intellectual demands of the office. Judges needed to cultivate legal
knowledge and accrue practical experience. In “Of Judicature,” Bacon claims that
Judges ought to be more Learned, then Wittie; More Reverend, then Plausible; And
more Advised, then Confident….Judges must beware of Hard Constructions, and
Strained Inference; For there is no Worse Torture, then the Torture of Lawes.
20

This brief excerpt reveals a divide between popular and professional accounts of magistracy.
Writing for different audiences, employing different standards of decorum, popular and
professional writers apply disparate formulae in their evaluation of magistracy. Understanding
these differences adds a new dimension to our understanding of the growing division between
popular and professional jurisprudences.
This chapter proceeds in three sections. In the first section, I examine a variety of assize
sermons and character books published between the 1590s and 1620s in order to analyze two
dominant tropes in the literature: the “close encounter” in magistracy (face-to-face arbitration)
and the emotional exchange between the magistrate and the people. In the second section, I
explore the conspicuous absence of these tropes in the professional writing on magistracy.
Professional writers emphasize the necessity of emotional distance in law. In the third section, I
enter deeper into the analysis by examining the representation of magistracy in Shakespeare’s
Henry IV, Part 2, focusing in particular on the gradual transformation of the Lord Chief Justice
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
19
Robert Harris, “Saint Paul’s Exercise. A Sermon Preached before the Judges at Assize,” in Two Sermons:
The One Preached before the Judges of Assize at Oxford. The Other to the Universities (London, 1628), Sig. D4r.
20
Francis Bacon, The Essayes or Counsels, Civill and Morall, ed. Michael Kiernan (Oxford: Clarendon,
2000), 166.
145
(hereafter the LCJ) from a local mediator, a pseudo-justice of the peace who rubs shoulders with
the people in the marketplace, to a royal justice who stands, literally and metaphorically,
between the king and his subjects. Critics habitually envision the LCJ as an emblem of the law.
“He is symbol, not man.”
21
He is one of the “sages of the law.”
22
He is an “icon and father of
English Law.”
23
He personifies “juridical power” and “paternal law.”
24
This identification
assumes that the LCJ embodies a coherent version of magistracy. But this is not the case.
Aspects of the character reflect multiple discursive fields, revealing the fractures and
contradictions in the cultural understanding of magistracy.
Departing from extant criticism of the play which reads the Chief Justice as an
unchanging “symbol” of justice, I emphasize the gradual transformation of the character, both in
terms of his conduct and his diction. By attending to these changes, it becomes possible to
discern the play’s truly ambiguous representation of magistracy. In my reading, the play operates
as a meta-commentary on both popular and professional discourses. Like the idealized
magistrates in religious and moral-legal literature, the LCJ establishes a paternal relationship
with the petitioners. He dispenses ad hoc justice without middlemen or documentation. Yet his
personal, intimate style of justice proves to be ineffective. Despite his sage legal advice and
equitable sentences, he leaves the people, at the end of the play, without proper protection or
security. Yet even as the play dashes the popular discourse and its idealistic insistence on popular
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
21
M. C. Bradbrook, Shakespeare and Elizabethan Poetry (Cambridge: Cambridge University Press, 1951),
201. See also her essay “Role-Playing in Henry IV,” in William Shakespeare’s Henry IV, Part 2, ed. Harold Bloom
(New York: Chelsea House Publishers, 1987), 71-83.
22
Lorna Hutson, “Not the King’s Two Bodies: Reading the ‘Body Politic’ in Shakespeare’s Henry IV, Parts
1 and 2,” in Rhetoric and Law in Early Modern Europe, ed. Lorna Hutson and Victoria Kahn (New Haven: Yale
University Press, 2001), 191.
23
Paul Raffield, “The Ancient Constitution, Common Law and the Idyll of Albion: Law and Lawyers in
Henry IV, Parts 1 and 2,” Law and Literature 22, no. 1 (2010): 41.
24
Meredith Evans, “Rumor, the Breath of Kings, and the Body of Law in 2 Henry IV,” Shakespeare
Quarterly 60, no. 1 (2009): 20.
146
contact, it likewise casts doubt on the professional discourse which connects magistracy to the
performance of “majesty.” In the end, the LCJ exists at a physical and emotional distance from
the people. As a result, he becomes an accessory to Hal’s betrayal of Falstaff. The tragic mood in
the final scene rests on a paradox: by administering the king’s law, LCJ thwarts the audience’s
desire for poetic justice.
1. How Popular Authors Saw Judges
Assize sermons and character books promote the idea of direct contact in law. They argue
that a simplified legal system is more conducive to justice. It is only in the absence of legal
functionaries and documentation that the people are able to attain justice. This image of the close
encounter in law has a basis in reality. In England, there were opportunities for face-to-face
encounters between judges and petitioners. For example, common people could—and did—plead
before justices, judges, and tribunals in such prerogative courts as the Court of Requests and Star
Chamber. Both courts attracted relatively humble, sometimes even laboring, petitioners.
25
On
rare occasions, petitioners found ways to appear before “reverend” judges in non-legal spaces.
John Levermore, an Exeter trader, pleaded his case before John Popham (who was then Lord
Chief Justice), while the latter sat at dinner with a friend.
26
But stories like Levermore’s survive,
in part, because of their exceptional nature. What people expected, and what they got for the
most part, were delays. In his 1603 assize sermon, the preacher George Closse paints a pathetic
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
25
On the day-to-day operation of the Star Chamber, see Steve Hindle, The State and Social Change in
Early Modern England, 1550-1640 (Houndmills: Palgrave, 2002); on women's experience pleading in court, see
Laura Gowing, Common Bodies: Women, Touch and Power in Seventeenth-Century England (New Haven: Yale
University Press, 2003); Timothy Stretton, Women Waging Law in Elizabethan England (Cambridge: Cambridge
University Press, 1998).
26
Popham was Chief Justice between 1592 and 1607. See Douglas Walthew Rice, The Life and
Achievements of Sir John Popham, 1531-1607: Leading to the Establishment of the First English Colony in New
England (Madison: Fairleigh Dickinson University Press, 2005), 102–3.
147
portrait of a man caught in legal purgatory. He is unwilling to abandon his case yet unable to
procure an appointment with a judge:
Me thinkes I see a man dying out of the world; he sendes for a preacher, he will
beleve S[aint] Paul, That it is utterly a folly, (if not fault) to go to lawe…he lamentes
he bought so deere inke & paper; so many narrow sheetes written w[ith] so few &
short lines.
27

Despite the rhetorical flourishes, Closse captures a truth about the Elizabethan legal system. It
was often ruinously slow. As one commentator observed, “[p]oore men cannot go to the price of
Justice, and rich men are oft undone by buying it.”
28

Preachers and moral authors combed through the Bible to find supporting examples
which could lend moral weight to their claims about the benefits of direct contact in law. They
celebrated David, Salomon, Josiah, and Hezekiah and other heroic judges of the Old Testament
for taking pains to circulate among the people.
29
For example, the preacher Henry Smith, whose
sermons saw multiple printings in the 1590s, eulogizes David for establishing a “seat for
judgment” near the city gate “where-through men might have passage to and from the judgment-
seat.”
30
Another preacher, Samuel Garey, reminds his readers that the biblical Samuel traveled
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
27
George Closse, “A Looking Glasse for Lawers, & Lawiers. A Sermon Preached before the Judges of
Assize for the Countie of Devon, in the Cathedrall Church of St Peter in Exon on the 8th Day of August:1603: By
George Closse Maister of Artes, a Preacher of the Worde of God at Blacktorrington,” 1603, Lambeth Palace
Library, f.57v.
28
John Cook, The Vindication of the Professors & Profession of the Law (London, 1646), Sig. A1v. Cook
lambasts lawyers for their false “pride”: “But now they are grown to that height of pride that a man can hardly (after
long attendance) come so neere a great Lawyers study doore, as to bid (God save him) without a fee or bribe. nor are
their fees of mean value, 3. pounds, 5. pounds 6. pounds being usuall, even for making a motion of five or six lines:
and if he be a Lawyer interioris admissionis, a Privado or Favourite, so much is well given to buy his silence, that
hee appeare not against you: O misery” (Sig. A1v).
29
The exemplary acts of Lycurgus and Solon were translated by Thomas North in Plutarch, The Lives of
the Noble Grecians and Romanes (London, 1595).
30
Henry Smith, “The Magistrates’ Scripture,” in The Sermons of Henry Smith: The Silver-Tongued
Preacher, ed. John Brown (Cambridge: Cambridge University Press, 1908), 71.
148
“about yeare by yeare, (as it were in circuite) to Bethel, Gilgal, and Mizpeth, and judged Israel in
all those places.”
31
Expanding on the theme of accessibility, preachers exhort judges to be “very
publike.”
32
John Stephens, in his character book, remarks that the “Honest Lawyer” is defined by
his ability to “ride the circuit, and scorne to be circular.”
33
Along similar lines, Joseph Hall, in
his character book, states that the “good magistrate” “knows himself made for a public servant of
peace and justice” and that as a “public servant,” he willingly allows his “meals” to be “short and
interrupted.”
34
Hall copies this sentence (nearly verbatim) from Pierre de Charron’s De la
sagesse (On Wisdom).
35

Religious and moral writers exhorted magistrates to practice “right judgemente” and
“equitye.”
36
They argued that justice depended on the judges’ ability to be moved by the
people’s plight. On the issue of “affection,” authors were keen to distinguish the right kind from
the wrong one. A judge should “not suffer his affection to disquiet his j[u]ndgement and
understanding.” But neither should he be aloof. He “must bee patient and meeke towards their
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
31
Samuel Garey, Ientaculum Iudicum: Or, A Breake-Fast for the Bench: Prepared, Presented, and
Preached in Two Sacred Seruices, or Sermons, the Morning Sacrifice before the Two Assizes: At Thetford, at
Norwich: 1619. Containing Monitory Meditations, to Execute Iustice and Law-Businesse with a Good Conscience
(London, 1623), Sig. B3r.
32
Harris, “Saint Paul’s Exercise,” Sig. D2v.
33
John Stephens, “Essayes and Characters, Ironicall, and Instructive,” in Books of Characters, Illustrating
the Habits and Manners of Englishmen from the Reign of James I. to the Restoration, ed. James O. Halliwell
(London: Adlard, 1857), 149. The book was first published in 1615.
34
Joseph Hall, Characters of Vertues and Vices. In Two Bookes (London, 1608), Sig. E[5]v. The
popularity of Hall’s work can be measured by its translation into French in the following year: Urbain Chevreau,
L’escole Du Sage, on Le Caractere Des Vertus, & Des Vices (Paris, 1609). Other popular character books include
Thomas Overbury’s His Wife (London, 1616) and Alexander Gardyne's Characters and Essayes (Aberdeen, 1625).
In these books, praise for the “good” judge is followed by attacks on the “bad” judge (or lawyer).
35
Pierre de Charron, Of Wisdom. Three Books, trans. George Stanhope (London, 1697), Sig. Rr3r. In the
original French edition, Charron writes, ““Le Magistrat doibt estre de facile acces, prest a ouyr & entendre toutes
plaintes & requestes, tenant sa porte ouuerte a tous, & ne s’absenter point, se souuenant qu'il n'est à foy, mais à tous;
& serviteur du public” (De la Sagesse [Paris, 1607], 685).
36
Christopher? Yelverton, “Notes of Sermons 1592-1621,” British Library, Add. MS 48016, f.31r, .
149
[the people’s] personall weaknesse.”
37
To hone the proper degree of “affection,” a judge should
attempt to be a “father of the people.”
38
The comparison of the judge to the father contains (to
our ears, perhaps) a coercive ideology underscoring the theme of blind obedience. Yet it may be
said to advance a less insidious and possibly more humane argument about fellowship in law.
The comparison suggests that a judge would be more likely to deliver equitable judgment if he
could be made to sympathize with the people as a father naturally does with his immediate kin.
To facilitate this emotional link, the aforementioned preacher Garey states that “[t]he poore
commit themselves unto you [judges], for you should be helpers of the fatherlesse” and “relieve
the oppressed…& defend the widowes.”
39
In the margin, Garey (or his printer) inserts a biblical
reference: “Psal. 10. 13.”
40
Another preacher, Richard Harris, reasons that a good magistrate acts
as a poor man’s “brother.” He argues that the “office” of the “Reverend Judges” is to “plucke the
spoile out of the teeth of the mighty, as Job did; and to bestride your poore brother, when hee is
stricken downe.”
41
Harris alludes to Job 29:14-17: “I put on righteousness as my clothing: justice
was my robe and my turban. I was eyes to the blind, and feet to the lame. I was a father to the
needy; I took up the teeth.”
42

""""""""""""""""""""""""""""""""""""""""""""""""""""""""
37
Samuel Ward, Jethro’s Justice of Peace. A Sermon Preached at the Generall Assises Held at Bury St
Edmunds for the Countie of Suffolke (London, 1621), Sig. B[7]v. Robert Harris makes a similar distinction.
Magistrates must avoid the “feates, passions, partialities of men” for these make them seem less “godly” (Harris,
“Saint Paul’s Exercise,” Sig. D4v.)
38
Yelverton, “Notes of Sermons 1592-1621,” f.31r., f.31r.
39
Garey, Ientaculum Iudicum, Sig. B[4]r–v, D2r.
40
Compare this to Psalms 10:14: “the poore committeth himselfe unto thee, thou art the helper of the
fatherlesse” (The Holy Bible [London, 1611], Sig. 3B6r,
http://sceti.library.upenn.edu/sceti/printedbooksNew/index.cfm?TextID=kjbible&PagePosition=651).
41
Harris, “Saint Paul’s Exercise,” Sig. D2v.
42
Hugh Adlington, “Restoration, Religion, and Law: Assize Sermons, 1660-1685,” in The Oxford
Handbook of the Early Modern Sermon, ed. Peter McCullough, Hugh Adlington, and Emma Rhatigan (Oxford:
Oxford University Press, 2011), 429. Adlington focuses specifically on assize sermons from 1660 to 1685, but many
of his observations are applicable to earlier sermons. According to him, “approximately three-fifths of printed assize
sermons were preached on Old Testament texts, with Psalms, Proverbs, and Exodus being the favourite sources.
Acts, Romans, and Hebrews were the most popular sources of New Testament texts” (427).
150
According to Smith, when judges sit “upon the Bench,” they “should forget themselves to
be men, which are lead by the armes betweene favour and feare, and thinke themselves Gods,
which feare nothing.”
43
At the same time, he argues that judges should blend that “feare nothing”
attitude with genuine Christian compassion. When common people petition them for protection,
they should respond with sympathy. Smith uses the following story to strengthen his argument:
When Philip, the king of Macedonia, did cast off the earnest suit of a poor widow
with this slender answer, Go thy way, for I have no leisure to hear thee now; she
replied thus, And why hast thou leisure to be a king? As if she should have said, God
hath given thee time to reign, and power to govern, that thou mightest apply them
both unto the end wherefor they are given thee, for ‘Mercy and truth preserveth a
king, and with loving-kindness his seat is upholden,’ Prov. xx.28.
44

Two details are important to observe. First, the character of the “poor widow” (or her cognate,
the poor man or orphan) frequently appears in magistracy literature. She represents a subordinate
subject especially deserving of judicial regard because, lacking money and protection, she is
vulnerable to social or economic “oppression.” Second, Smith defines kingship and magistracy
in the tender language of Christian religion, a sharp contrast to the pragmatic one heard in the
professional literature. For Smith, the “end” of kingship is the preservation of “mercy and truth.”
Thus, Smith accuses Philip of misusing his power. Smith’s contempt for Philip exploits a
contemporary interest in that ancient “tyrant.” In 1570, Thomas Wilson translated
Demosthenes’s Philippics and connected Philip of Macedon’s military aggression with that of
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
43
Smith, “The Magistrates Scripture,” Sig. Yy8v.
44
Henry Smith, "A Momento for Magistrates," in The Sermons of Henry Smith the Silver-Tongued
Preacher, ed. John Brown, vol. 2 (Cambridge: Cambridge University Press, 1908), 71–72.
151
Philip II of Spain.
45
Those among Smith’s audience who possessed the intertextual knowledge
could insert additional meaning into the anecdote. Yet one did not need to be a scholar to glean
Smith’s lesson. He spells it out in no uncertain terms. Kingship and magistracy do not lie in
performances of “majesty” but in small, nearly unseen acts of “loving-kindness,” such as the one
Philip might have bestowed on the poor widow.
In sum, the popular religious and moral literature concerning magistracy tend to equate
moral feelings (piety, honesty, care, love) with judicial virtù (power, action, ability). This
literature posits a link between a judge’s capacity for compassionate feeling and his ability to do
justice. That formula is condensed by the preacher Richard Harris into the following axiom: a
good judge “must smite a sinner, with a weeping eie and a feeling heart.”
46
Robert Bolton,
another preacher, would have agreed. In his eulogy on the death of Augustine Nicholls, Bolton
claims that all judges should aspire to Nicholl’s example and cultivate
An easinesse of accesse, affablenesse of carriage: A faire, loving kind deportment
towards all. I never saw a man of such worth and greatnesse looke more mildly upon
a meane Man in my life. And yet with so grave a presence, that neither the authority
of his Person, nor due attributions to His Place receiv’d any disparagement or
diminution….Hee’s the best Christian, which is most humble: so in the Schoole of
Morality hee hath beene holden the truest Gentleman, which is most courteous.
47

The ideal judge avails himself to the people (especially the poor and under-represented) by
journeying into their midst and by adopting an approachable (as opposed to haughty)
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
45
Alastair J. L. Blanshard and Tracey A. Sowerby, “Thomas Wilson’s Demosthenes and the Politics of
Tudor Translation,” International Journal of the Classical Tradition 12, no. 1 (2005): 46–80.
46
Harris, “Saint Paul’s Exercise,” Sig. D4r.
47
Robert Bolton, Mr. Boltons Last and Learned Worke of the Foure Last Things, Death, Judgement, Hell,
and Heaven. With His Assise Sermons, and Notes on Justice Nicholls His Funerall, ed. Edward Bagshaw, 4th ed.
(London, 1639), Sig. M3v–M4r.
152
deportment. Empathy, patience, and fairness are the moral virtues desired in judges. A pattern
emerges from this collection of texts. Real justice does not stem from law’s bureaucracy or its
force, but from popular, direct contact: the face-to-face encounter between magistrates and
petitioners. What does love have to do with magistracy? Everything, according to the authors
examined above.
2. How Judges Saw Themselves
The professional discourse on magistracy sounds quite different. Unlike religious and
moral authors who continually emphasized the need for direct contact in judgment, professionals
argued for the necessity of legal liminality. That liminality is thought to be established through
structural mediation and emotional distance achieved through the perfection of legal reason. In
his treatise on the common law, William Fulbecke argues that the complexity of the legal system
reflects the state of social relations in England: “[t]hey that would have few laws, must procure
that there be few causes, and little business, which it is not possible for any to bring to pass.”
48

He suggests that it is not lawyers who generate “causes” and “business” but the people
themselves. While recognizing that every profession has its share of black sheep, even his own,
Fulbecke nonetheless defends the necessity of his chosen profession.
Love and piety might be the key themes in popular texts on magistracy, but they appear
infrequently in the professional literature. Legal professional accounts of magistracy highlight
the employment of reason in law. For example, George Croke praised Christopher Wray, Chief
Justice of the Queen’s Bench, as a “‘most revered Judge, of profound and judicial knowledge.”
49

The emphasis on the judge’s “profound and judicial knowledge” echoes Edward Coke’s
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
48
William Fulbecke, A Direction or Preparative to the Study of the Lawe, ed. T. H. Stirling, 2nd ed.
(London: Clarke, 1829), Sig. D[6]r .
49
George Croke qtd. in G. W. Keeton, Shakespeare’s Legal and Political Background (New York: Barnes
and Noble, 1967), 6.
153
description of Thomas Littleton’s “jurisprudence” or “certaintie and knowledge of the Lawe.”
Speaking generally about the ideal qualities in lawyers, John Dodderidge reflected that the
“‘[t]he first and chiefest Natural gift is sharpenesse, and dexterity of wit.’”
50
When professionals
talked about themselves or their colleagues, they invariably mentioned legal “wit” and
“knowledge.” This discourse contradicts the popular one which emphasizes the necessity of
emotional exchanges between magistrates and petitioners.
In his description of the judge’s labor, Coke says little about judicial love and much about
the challenges (and pleasures) of legal study. “Judges of the Law” address “matters of
difficultie.”
51
Justices such as Littleton perfected the “art” of legal logic:
He [Littleton] was learned also in that Art, which is so necessary to a compleat
Lawyer (I mean) Logicke, as you shal perceive by reading of these Institutes,
wherein are observed his Sillogismes, Inductions, and other arguments; & his
Definitions, Descriptions, Divisions, Etymologies, Derivations, Significations, & the
like.
52

Hence, the standards by which Coke judges his peers—past, present, and future—are what we
might call “textual” or “scientific.” Expounding on his theme, Coke advises students to read the
complete primary text before resorting to abridgments and commentaries:
Myne advice to the Studient is, That…hee read againe and againe our Author
himselfe [i.e. Littleton] in that Section, and doe his best endeavours, first of himselfe,
and then by conference with others, (which is the life of Studie) to understand it, and
then to read our Commentarie thereupon, and no more at any one time, than hee is
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
50
John Dodderidge qtd. in Raffield, “The Ancient Constitution,” 20.
51
Edward Coke, Les Reports de Edward Coke (London, 1602), Sig. Ejr.
52
Edward Coke, The First Part of the Institutes (London, 1628), Sig. ¶¶v.
154
able with delight to beare away, and after to meditate thereon, which is the life of
reading.
53

To “read againe and againe” and then “meditate thereon” constitute Coke’s understanding of the
legal method. Coke is fundamentally interested in the intellectual reasoning aspects of law: how
lawyers acquire, develop, and ultimately perfect what he calls “artificial reason” (lex ratio).
54

In yet another departure from the popular discourse on magistracy, legal professionals
encourage judges to curtail access to their persons. Bacon argues that “[a] popular judge is
deformed thing, and plaudits are fitter for players than for magistrates.”
55
Bacon seems to have
in mind Machiavelli’s dictum that
it is far better to be feared than loved if you cannot be both….The bond of love is one
which men, wretched creatures that they are, break when it is to their advantage to do
so; but fear is strengthened by a dread of punishment which is always effective.
56

Bacon’s maxim reflects a classical bias against the “fickle” mob. In his biography of Lycurgus,
the great lawmaker, Plutarch recounts the story of Lycurgus’s predecessor, Eurypon (or
Eurytion) of Sparta, who lost his power when he relaxed his authority over the demos:
…to please the people, [he] did first let fall and give over, the sole and absolute
power of a king. Whereupon there followed afterwards marvellous disorder and
dissolution, which continued a great time in the city of Sparta. For the people
finding themselves at liberty, became very bold and disobedient: and some of the
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
53
Ibid., Sig. A[2]r.
54
Lex ratio is defined by Coke in the following passage: “Ratio est anima legis; for then are we said to
know the law, when we apprehend the reason of the law; that is, when we bring the reason of the law so to our owne
reason, that wee perfectly understand it as our owne” (The First Part of the Institutes of the Lawes of England or a
Commentary upon Littleton [London, 1809], §395a).
55
Francis Bacon qtd. in J. S. Cockburn, A History of English Assizes, 1558-1714 (Cambridge: Cambridge
University Press, 1972), 59.
56
Niccolò Machiavelli, The Prince, ed. George Bull (Harmondsworth: Penguin, 1961), 97–98.
155
kings that succeeded, were hated even to death, because they would perforce use
their auncient authority over the people.
57

Plutarch’s anecdote serves as a warning to would-be rulers: magistrates should avoid
demagoguery. The people’s loyalty is as shifty as the wind. The “vulgar,” Ben Jonson reminds
readers, “are commonly ill-natured; and always grudging against their governors.”
58
To avoid
the ill-fated rulers catalogued in Plutarch’s Lives, kings and magistrates should identify with the
Apollonian deity depicted in Albrecht Dürer’s Sol Justitiae (Fig. 1). In this engraving, Justice
holds a balance in one hand and a sword in the other. He sits astride a “lion statant” (standing)
whose stern maw and glaring eyes act as a foil to his own impassive features.
59
The iconography
of Justice here pictured emblematizes the professionals’ discourse: magistracy is an expression
of power and rationality.

""""""""""""""""""""""""""""""""""""""""""""""""""""""""
57
Plutarch, The Lives of the Noble Grecians and Romaines, Compared Together by That Grave Learned
Philosopher and Historiographer, Putarke of Chæronea, trans. Thomas North (London: Richard Field for Thomas
Wight, 1603), Sig. E3v.
58
Ben Jonson, The Complete Poems, ed. George Parfitt (London: Penguin, 1996), 403.
59
“Salomons Throne, was supported by Lions, on both Sides” (Bacon, The Essayes, 169).
156

Fig. 1. Albrecht Dürer, Sol Justitiae, c.1499. ARTstor.
157
Closely related to the question of popularity in law is the question of friendship in
judgment. Lambarde, attacking bribery in the courts, identifies “Friendship” as one of the
contributing causes of judicial corruption. Too often, judges, JPs, and “other Commissioners or
Delegates…will dip their owne fingers in the Suits that depend before them; and will be seene
more like to affectionate Advocates, or Parties, than to sincere and indifferent Judges.”
60
Coke is
even more explicit in denying the possibility of friendship in magistracy. In his 1607 charge to
the grand jury, Coke tells the story of a virtuous young Roman who foreswears friendship upon
his appointment to the Senate. The young man holds a banquet and tells his guests:
It is true that I purpose as I must, to take my leave of you all, and to be a stranger to
my dearest friends, and nearest Allies: I must forget all former friendships, and my
most familiar Acquaintance, I must accompt as greatest stra[n]gers unto me; Thus
must I depart from you, & yet continue amongst you, for by the love, power &
authoritie of the Senate, I am appointed to be a Judge, and in the seate of Justice, I
must forget the remembrance of your former friendships and acquaintance, and onely
in the person of a Judge, with respect to keepe my conscience cleare, must with
equitie & uprightnes, justly administer justice unto you all.
61

These legal professionals, Lambarde, Bacon, and Coke agree that it is better for magistrates to
stand apart from the people than with them. Love and law form a toxic brew. A judge should act
like the young Roman in Coke’s fable: “forget all former friendships.”
3. Magistracy in Shakespeare
The sections above outline some of the differences between popular and professional
discourses on magistracy. This work helps us to unpack the complex and ambivalent depiction of
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
60
William Lambarde, Archeion (London, 1635), Sig. G1v (original emphasis).
61
Edward Coke, The Lord Coke His Speech and Charge. With a Discoverie of the Abuses and Corruption
of Officers, ed. Robert Pricket (London, 1607), Sig. B4r.
158
magistracy in Shakespeare’s Henry IV, Part 2. The Lord Chief Justice (LCJ) is a hybrid figure
who embodies aspects of both popular and professional accounts of the “good” magistrate. In
calling him a “hybrid” character, I explore a counter-intuitive reading. Critics often cast the LCJ
as a unified character who is defined by his lack of development. For example, Paul Raffield
associates the LCJ with the “unsentimental” and “pragmatic” aspects of a centralized legal
system.
62
Raffield draws this conclusion from a reading of the LCJ’s first and last great speech in
which he presents himself to Hal, now king, as the “majesty and power of law and justice”
(5.2.77). This reading, however, ignores the earlier scenes which show the LCJ acting on behalf
of the people in a humane, even sentimental fashion. Indeed, as Richard Strier points out, the
LCJ is a critical component to the fantasy of the “alternate world” inhabited by Falstaff, the
country justices, and Mistress Quickly.
63
I argue that attending to the contradictions in the
character allows us to discern Shakespeare’s sophisticated interaction with the various literatures
on magistracy. The play absorbs different cultural fantasies about law and justice without
necessarily endorsing any of them. It is this hermeneutic indeterminacy which distinguishes the
play from some of the religious and moral literature we encountered in the first section and
indeed in the previous chapters.
In the first half of the play, the LCJ engages in face-to-face arbitration. The play offers a
nostalgic vision of Medieval London reduced here to the circumference of a village. In this
pseudo-village, a chief justice (one of the most important judges in the land) materializes when a
citizen hollers “A rescue, a rescue!” (Fang) and “Good people, bring a rescue or two” (Quickly,
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
62
Raffield, “The Ancient Constitution,” 23.
63
Richard Strier, “Shakespeare and Legal Systems: The Better the Worse (But Not Vice Versa),” in
Shakespeare and the Law, ed. Bradin Cormack, Martha Nussbaum, and Richard Strier (Chicago: University of
Chicago Press, 2013), 177, 181.
159
2.1.54-5).
64
In his early appearances, the LCJ takes on the role of a justice of the peace who
attends to the people’s private squabbles. He is interested in their welfare—even that of his
antagonist, Falstaff. Additionally, he arbitrates in the absence of a legal bureaucracy: lawyers,
scribes, sheriffs, and records. Petitioners enjoy full and unmediated access to this judge.
Judgment is conducted in broad daylight, in the marketplace, just as it might have occurred in
King David’s time. Falstaff exclaims, “I am glad to see your lordship abroad” (1.2.92), and this
line signals the difference between this justice and his textual predecessors. Shakespeare’s LCJ is
found at Pie Corner in Eastcheap. The judges in the source-texts sit in judgment at
Westminster.
65
In both Thomas Elyot’s The Governour (1531) and The Famous Victories of
Henry the Fifth (by an anonymous playwright, performed before 1588 and published in 1598),
the justice, who is based on the fifteenth-century judge William Gascoigne, is portrayed sitting at
the bench.
66
In Elyot’s account, the prince “set all in a fury / all chafed, and in a terrible maner /
came up to the place of judgement” after hearing that the “chief justice” has refused to release
the prince’s favorite. According to Elyot, the judge bravely sat “styll without movynge /
declarynge the majestie of the kynges place of judgement.”
67
Elyot’s antithesis encourages the
reader to compare the prince’s “fury” to the judge’s calm, the former’s sprint to the latter’s
“styll[ness].” Likewise, in The Famous Victories, the judge sits at a bench and is flanked by two
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
64
William Shakespeare, Henry IV, Part 2, ed. René Weis (Oxford: Clarendon, 1998).
65
The LCJ first encounters Falstaff in Pie Corner, which lies at the intersection of Giltspur St. and Cock
Lane, West Smithfield (Weis, Henry IV Part 2, n. to ll. 26-7).
66
William Gascoigne (c.1350–1419) lived six years into the reign of Henry V. Born in Gawthorpe,
Yorkshire, Gascgoine graduated from Cambridge and later of the Inner Temple and enjoyed a respectable career
from the time he was appointed to the bench (15 Nov. 1400) to the time of Henry IV’s death. Henry V paid the
justice due respect by rewarding him “‘four bucks and does out of the Forest of Pontefract annually for the term of
his natural life’” (F. Solly-Flood, “The Story of Prince Henry of Monmouth and Chief-Justice Gascoign,”
Transactions of the Royal Historical Society, New Ser. 3, 3 [1886]: 65). See also Edward Powell, “Gascoigne, Sir
William (c.1350–1419),” Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004),
http://www.oxforddnb.com/view/article/10427.
67
Elyot, The Boke Named the Gouernour, Sig. P[7]v–P[8]r. The passage, with minor orthographic changes,
is transcribed by John Stowe in The Annales of England (London, 1592).
160
legal officials, a jailer and a clerk. The judge’s opening line, “[j]ailer, bring the prisoner to the
bar” establishes the actors’ spatial relationship.
68

Shakespeare’s judge walks the streets. That perambulation not only marks the play’s
divergence from its source-texts but also from the historical representation of the “learned”
judge. According to John Fortescue, royal justices, when not hearing cases at the Court of the
King’s Bench at Westminster, are found in their closets “studying the laws, reading Holy
Scripture.”
69
Why would Shakespeare pluck the judge from the bench? Critics offer different
explanations. C. L. Barber claims that because Falstaff and the LCJ form an allegorical pair, the
former representing Vice and Carnival and the latter Virtue and Lent, structural logic requires
that Falstaff appear in conjunction with his antagonist.
70
Erich Auerbach argues that the mixture
of the “high” and “low” characters is evidence of Shakespearean mimesis: a radical turn against
neoclassical dramaturgy.
71
More recently, scholars view the LCJ’s action as a telltale sign of
Shakespeare’s political sympathies. Jonathan Bate explains that the “point of the encounter
between two characters [the LCJ and Mistress Quickly] from such different social strata is to
yoke together the big people and the little, implicitly binding the people of England under one
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
68
The Famous Victories of Henry the Fifth, in The First Part of King Henry the Fourth: Texts and
Contexts, ed. Barbara Hodgdon (Boston: Bedford, 1997), 291–308. The line is spoken at 4.1.
69
According to John Fortescue, a chief justice’s day is divided into two parts: “from eight o’clock before
noon to eleven o’clock,” justices hear cases at the bench. Then, during the recess when “pleaders ... attend in
chambers and elsewhere to confer with the serjeants-at-law and their other counsel,” justices “pass the whole of the
rest of the day in studying the laws, reading Holy Scripture, and otherwise in contemplation at their pleasure, so that
their life seems more contemplative than active” (John Fortescue, De Laudibus Legum Angliae, ed. S. B. Chrimes
[Cambridge: Cambridge University Press, 1942], 129).
70
C. L. Barber, “The Trial of Carnival in Part 2,” in William Shakespeare’s Henry IV, Part 2, ed. Harold
Bloom, Modern Critical Interpretations (New York: Chelsea House Publishers, 1987), 21–28. Barber writes that the
“basic structures” of the play are “shaped by morality-play encounters between Virtues and Vices, encounters which
from my vantage here can be seen as cognate to the festive and scapegoat pattern” (23).
71
Erich Auerbach, Mimesis: The Representation of Reality in Western Literature, trans. Willard K. Trask
(Princeton, NJ: Princeton University Press, 1953), 313.
161
law.”
72
To these readings I suggest that the LCJ’s presence in the marketplace works as an
intertextual allusion: it is part of the play’s self-conscious yet ironic modeling of the religious
and discourse on magistracy.
Because of his close proximity to the people, the justice becomes enmeshed in their
private lives. These close encounters allow the character to demonstrate his humanity. For
example, when presented with the chance to investigate Falstaff’s part in the robbery at Gad’s
Hill, the LCJ decides to overlook Falstaff’s transgression for, in his words, the knight has done a
“day’s service at Shrewsbury,” which has “a little gilded over your night’s exploit on God’s Hill”
(1.2.143-146). The LCJ’s speech reflects a willingness to pursue a Christian program of mercy
and redemption. His “sentence” exemplifies equity in the sense that he judges that the letter of
the law needs to be bent on this occasion to satisfy the law’s spirit.
Next, coming across the beginning of a brawl between Mistress Quickly and Falstaff, the
LCJ proceeds, without much ado, and without sheriffs or recorders or jurors, to arbitrate their
dispute. Mistress Quickly’s complains that Falstaff “hath eaten [her] out of house and home”
(2.1.71), specifically, “thirty shillings” (2.1.100). Falstaff had promised to “make me my lady thy
wife” (2.1.91). Furthermore, she claims the verbal contract had been witnessed by “goodwife
Keech the butcher’s wife” (2.1.92). Hearing this, the LCJ decides the case in her favor. He
admonishes Falstaff for “practis[ing] upon the easy-yielding spirit of this woman, and ma[king]
her serve your uses both in purse and in person” (2.1.111-3). Then, he orders Falstaff to
remunerate her: “[p]ay her the debt you owe her, and unpay the villainy you have done with her.
The one you may do with sterling money, and the other with current repentance” (2.1.116-119).
The LCJ’s decision is partly based on his prior knowledge of Falstaff’s “great infamy” (1.2.132)
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
72
Jonathan Bate, Soul of the Age: A Biography of the Mind of William Shakespeare (New York: Random,
2009), 296.
162
and partly on his understanding of Falstaff’s “manner of wrenching the true cause the false way”
(2.1.107-8). The LCJ’s judicial style, as the scene reveals, is personal and intimate. He listens to
the victim’s complaints. He does not rely on attorneys and scribes to transcribe or interpret the
evidence.
The LCJ’s approach to magistracy stands in contrast to Justice Shallow’s method. When
Shallow hears of a land dispute between “William Visor of Won’cot” and “Clement Perks
o’th’Hill” from Davy, his servant, he relies on Davy to explain the details of the case. Davy tells
Shallow that Perks is reputed to be a good man. Yet Davy argues that because an “honest
man…is able to speak for himself, when a knave is not…I beseech you let him be countenanced”
(5.1.38-9, 42-3). “Knave” is based on the Old English word “cnafa,” which signifies both “boy”
and “rogue” (OED “knave” etymology). Thus, in a linguistic sleight-of-hand, Davy transposes a
more innocent meaning of the word (“boy”) for a more insidious one (“rogue”): a “knave”
(“boy”) is unable to deliver his own defense. Davy further hoodwinks his master by confusing
the universal category with the particular. Even if a knave is unable to “speak for himself,” it
does not follow logically that all knaves lack eloquence. But Shallow, as his name implies, is too
trusting to detect the fallacy. Finally, Davy wraps his argument in the sweet words of friendship.
He tells Shallow that Visor is “mine honest friend” and simultaneously reminds his master, “I
have served your worship truly…this eight years” (5.1.40). The evocation of friendship and
loyalty proves irresistible to Shallow. Thus, even though “Visor” means the “front part of a
helmet” and a “mask to conceal the face” (OED “visor, vizor” 1 and 2), meanings which
instantly connect the character to the play’s thematic exploration of military violence and night-
time robbery, and even though “Clement” suggests Christian mercy, mildness, kindness,
humility, and perhaps wisdom, Shallow champions the former on the advice of his deputy. This
163
is precisely the sort of outcome, stemming from legal mediation, which religious and moral
writers attack in their sermons, essays, and character books.
In the world of the play, lawsuits are settled in the middle of the marketplace. Even the
lowliest member of society may plead a case and expect a just (and immediate) response from
the judge. The kind of justice which the LCJ dispenses is akin to “restorative justice.”
Restorative justice, according to legal theorists, counterbalances the retributive tendencies of the
common law.
73
Whereas retributive justice is “revenge formalized by the state” (the Latin
“retributio” means recompense and punishment), restorative justice attempts to generate
harmony between dueling parties.
74
Whereas retributive justice seeks to punish offenders,
restorative justice seeks to educate them. Finally, whereas retributive justice ultimately
reinforces the state’s powers, restorative justice distributes power to all members of the
community.
75
Restorative justice tries to bring about a face-to-face encounter between victim
and offender. Its goal is to persuade offenders to repair the damage either “materially” or
“symbolically.”
76
It has even been argued by some theorists that victims gain a measure of
comfort through the mere acknowledgment of their victimhood: “what victims want most is not
material reparation but instead symbolic reparation, primarily an apology and a sincere
expression of remorse.”
77
Many of the elements associated with restorative justice are found in
the LCJ’s actions. The LCJ responds to Mistress Quickly’s complaint immediately and
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
73
See “Re-thinking Access to Criminal Justice in Canada: A Critical Review of Needs, Responses and
Restorative Justice Initiatives,” 3.3.1, http://www.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_2/p33.html.
74
Ibid.
75
In theory, all members of the community may take part in restorative justice: “victims, offenders and
other ‘stakeholders’ in a criminal case should be allowed to encounter one another outside highly formal,
professional-dominated settings such as the courtroom.” See Gerry Johnstone and Daniel W. Van Ness, “The
Meaning of Restorative Justice,” in Handbook of Restorative Justice, ed. Gerry Johnstone and Daniel W. Van Ness
(Cullompton: Willan, 2007), 9.
76
Martin Wright, Justice for Victims and Offenders: A Restorative Response to Crime (Philadelphia: Open
University Press, 1996), iv.
77
Heather Strang qtd. in Gerry Sharpe, “The Idea of Reparation,” in Handbook of Restorative Justice, 28.
164
humanely; he even tries to act the part of the match-maker between Mistress Quickly and
Falstaff, thereby giving her the symbolic reparation she craves: to be Lady Falstaff.
However, in the process of staging the fantasy of direct contact in law, the play draws
attention to the gaps in that logic. As previously discussed, preachers and satirists call for the
elimination of law’s liminal experience. That logic, however, is turned inside out: the various
legal encounters, while intimate, personal, and perhaps emotionally satisfying, do not produce a
surplus of justice but arguably a deficit. Instead of establishing order once and for all, the LCJ’s
informal style of arbitration reproduces the conditions for Falstaff to commit further petty
criminality on Mistress Quickly. When he overlooks Falstaff’s transgression, he reasons, “but
since all is well, keep it so. Wake not the sleeping wolf” (1.2.149). The line follows the proverb
“let sleeping dogs lie.”
78
But the replacement of “dogs” with “wolf” is curious. Since “wolf”
evokes danger and lawlessness, the line carries the suggestion that the LCJ’s decision to delay
judgment may bring negative consequences in the future. What happens when the wolf does
“wakes”? The answer is provided later in the play. At the precise moment when the LCJ appears
to have successfully pressed Falstaff into “satisfy[ing] the poor woman” (2.1.130), a messenger,
Gower, appears bearing a message for the judge. As he becomes immersed in reading the latest
“news” (the allocation of the king’s troops), he misses Falstaff’s newest trick: conning Mistress
Quickly out of £10, which is a greater sum than the original one cited in her suit. By the end of
the scene, Mistress Quickly, who has, in her words, “borne, and borne, and borne, and have been
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
78
Compare this line to “[i]t is nought good a slepyng hound to wake” (Geoffrey Chaucer, “Troilus and
Criseyde,” in The Riverside Chaucer, ed. Larry D. Benson, 3rd ed. [Boston: Houghton, 1987], 3.764), “it is evill
waking of a sleeping dogge” (John Heywood, The Proverbs of John Heywood. Being the“Proverbes” of That
Author Printed 1546, ed. Julian Sharman [London: Bell, 1874], 51), and “[i]t is evill waking of a Dog that doth
sleepe” (Nathaniel Woode, The Conflict of Conscience [c.1581] qtd. in Proverbs in the Earlier English Drama with
Illustrations from Contemporary French Plays, ed. Bartlett Jere Whiting [Cambridge, MA: Harvard University
Press, 1938], 154). In the last example, the character Hypocrisy speaks the axiom in an attempt to persuade
Philologus to recant.
165
fobbed off, from this day to that day,” is left to bear her burdens for another day (2.1.32-33). In
short, while full of good intentions, the LCJ’s judgment fails to produce tangible results. His
legal interventions maintain the status quo without advancing the cause of justice in a lasting
way.
The scenes fit together like a palimpsest. Initially, the familiar contact between the LCJ
and the people seems to fulfill the popular wisdom that the absence of legal intermediaries
supplies the people with a greater measure of justice. Unlike Justice Shallow who allows his
servant Davy to mediate the dispute between William Visor and Clement Perks, the LCJ does not
rely on hearsay but investigates cases in person. And like a ballast acting to keep an otherwise
wobbly ship on an even keel, the LCJ’s presence provides a measure of protection for the people.
By patrolling Eastcheap, in the manner of a justice of the peace, he is able to nip street violence
in the bud and, perhaps as importantly, to soothe a citizen’s wounded feelings. In short, the LCJ
is the splitting image of a humane, public-oriented magistrate found in the popular literature on
magistracy. But even as the play invites audiences to commend the LCJ’s informal style of
arbitration, it leaves the audience in doubt of the efficacy of that model of magistracy. We are
not allowed to forget that the LCJ remains a tourist and that the good he does is ultimately
ephemeral.
By leaving the bench and making a progress through the city, the LCJ befriends the
common people. In so doing, he relinquishes the ability to correct their transgressions. The LCJ
bears more than a passing resemblance to the “old lord of the Council” described in Henry IV,
Part 1 who “rated” Falstaff “in the street” about the latter’s pernicious influence over Hal
(1.2.83-4).
79
(This character does not actually appear in the play.) When Falstaff recounts the
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
79
William Shakespeare, The First Part of Henry the Fourth, in The Riverside Shakespeare, ed. G.
Blakemore Evans (Boston: Houghton, 1974), 847-885.
166
meeting to Hal, saying how he “marked him not…and yet he talked wisely, and in the streets,
too” (1.2.86-7), Hal compares the “old lord” to Wisdom: “[t]hou didst well, for wisdom cries out
in the streets and no man regards it” (l. 88-9). If the “old lord” symbolizes Wisdom, and if the
LCJ is based on the “old lord,” it stands to reason that the audience is encouraged to associate the
LCJ with Wisdom. But this comparison is potentially problematic since Wisdom is ignored by
the people, the “simple ones” and “scorners” of the marketplace:
Wisedome crieth without, shee uttereth her voice in the streets: Shee cryeth in the
chiefe place of concourse, in the openings of the gates: in the city she uttereth her
words, saying, How long, ye simple ones, will ye love simplicitie? and the
scorners delight in their scorning, and fooles hate knowledge?
80

If the “loving” approach to magistracy fails, does the play suggest that success in magistracy
entails the performance of majesty? Does the play lend support to the institutional vision of
magistracy as a display of power? Just as the play reproduces, yet at the same time undermines,
the popular discourse on magistracy, so it does again with the professional or institutional
literature. Let us take a closer look at the LCJ’s final scenes, the ones in which he appears to
exemplify the splendor of the law.
In 5.2, we find the LCJ summoned to attend the king in Westminster for an interview
with Hal, now King Henry. At the beginning of the scene, the LCJ worries that the death of the
old king leaves him “open to all injuries” (5.2.8). His fear seems to be justified by the courtiers.
Warwick informs him, “[i]ndeed I think the young King loves you not” (5.2.9) and Prince John,
sang-froid as ever, declares, “[y]ou stand in coldest expectations” (5.2.31). Cast in the role of the
persona non grata, and apparently abandoned by his former acquaintances, the LCJ experiences
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
80
Prov. 1:20-22, The Holy Bible (London, 1612).
167
terror: “O God, I fear all will be overturned” (5.2.19). When he meets the new king, he launches
into an eloquent defense of his actions and of the necessity of his office. The nature of the speech
is at simultaneously self-effacing and self-aggrandizing:
I then did use the person of your father.
The image of his power lay then in me;
And in th’administration of his law,
Whiles I was busy for the commonwealth,
Your highness pleasèd to forget my place,
The majesty and power of law and justice,
The image of the King whom I presented,
And struck me in my very seat of judgement. (5.2.72-79)
In the speech, the LCJ is careful to extinguish any sense of his own agency: he claims that he did
not punish the prince for physically assaulting him, the private individual, but for attacking the
king, the commonwealth, and the very notion of law and justice. In effect, he turns himself into
an emblem of justice. In the span of twenty-nine lines, the LCJ repeats the word “image” three
times. “The image of [the king’s] power lay then in me” he states; the “image of the King…I
presented” (5.2.78); a judge mirrors “your most royal image” (5.2.88).
Not unlike a conjurer who arranges his charms, tokens, and talismans before casting a
spell, the LCJ enumerates the objects which bespeak his authority, such as the “seat of
judgement” (5.2.79), the “awe-full bench” (5.2.85), and “the sword / That guards the peace and
safety of your [king’s] person” (5.2.86-7). Through such a layering of legal language, he tries to
recreate the symbolic parts of the law. At the same time, the tactic is evasive: he tries to protect
himself by ducking behind the scrim of judicial symbols. In this speech, the LCJ engages in a
168
linguistic act of self-fashioning and self-effacement. Yet in the process of claiming authority and
power, the LCJ changes from the figure of a local justice to a central court judge. The
metamorphosis is underway even before Hal formally appoints (or re-appoints) the LCJ to his
office. The LCJ speaks in verse, which is consistent with the “sacerdotal” image of justice he
attempts to project. Previously, he had had spoken in prose. His speech was sprinkled with
homespun idioms (“wake not a sleeping wolf”)—even puns. On Falstaff’s remarkable girth, he
had remarked, “your means are very slender, and your waste is great” (2.1.136)
81

The transformation is problematic from the viewpoint of the administration of justice. In
becoming the king’s representative, the LCJ places himself firmly within the royal household.
Since he does not, or cannot, stray far from the king’s side, he does not witness the Beadles’
arrest Mistress Quickly and Doll Tearsheet. He does not see them dragging out the women for a
“whipping-cheer” (5.4.5)—punishment for their alleged participation in a murder (“the man is
dead that you and Pistol beat amongst you” [5.4.16-17]). The identity of the dead man, the means
by which he came to be in Mistress Quickly’s house, her motives for “beat[ing]” the man to
death—these are all left as open-ended questions. When Mistress Quickly asks the Beadles to
“bring [her] to a justice” (5.4.25), her request is ignored. Justice is conspicuously absent. Justice
has left the realm of the people. What becomes of Mistress Quickly or Doll? Shakespeare trusts
his audience to supply the missing scene. As the Middlesex County Records show, women
(usually prostitutes and brothel keepers) were regularly whipped for moral transgressions. Joan
Lea, for example, was informed that as she had “confessed that she had a bastard child begotten
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
81
The LCJ’s ability to pun with as much dexterity as Falstaff reinforces his status, in these early scenes, as
an outsider to the formal discourse of the law. Heather James observes that in Shakespearean drama, “puns, like
contaminations, create meanings that rival each other for primacy. Because the various meanings of a word or
versions of a story are equally legitimate, they ultimately level notions of priority and hierarchy. The antic takes up
the impudent pun as a form of language that opposes stable order, hierarchy, and the absolutist language of
kingship” (Shakespeare’s Troy: Drama, Politics, and the Translation of Empire [Cambridge: Cambridge University
Press, 1997], 5–6).
169
on her by Thomas Bates,” she would be “openly whipped at a cart’s tail in St. John Street upon
Saturday next until her body be all bloody.”
82
This painful fate is promised to the Eastcheap
women. However, a whipping is better than a hanging. If Mistress Quickly had her day in court,
as she so desired, she could have been charged with murder. And if she had been found guilty,
she could have faced the hangman.
The LCJ’s metamorphosis also turns him into an accessory to Hal’s betrayal of Falstaff.
Shakespeare has prepared the audience for this scene ever since Hal’s first soliloquy in Henry IV,
Part 1: “I know you all, and will a while uphold / The unyok’d humor of your idleness…”
(1.2.195-217). Yet Hal’s rejection of Falstaff comes as one of the most emotionally devastating
moments in Shakespearean drama (Fig. 2). When Hal tells the LCJ to “speak to that vain man”
(5.5.47), the judge becomes a device for the delivery of poetic injustice. After Hal quits the
scene, the LCJ tries to disperse the crowd. He instructs his officers to “Go carry Sir John Falstaff
to the Fleet / Take all his company along with him” (5.5.89-90). Falstaff beseeches the LCJ for
an interview: “My lord, my lord—,” but the LCJ cuts off Falstaff’s plea and defers the
conversation with these brief lines: “I cannot now speak. I will hear you soon. Take them away”
(5.5.92-93). These sentences carry extra layers of significance. “I cannot now speak” expresses
the LCJ’s impatience; he wants to follow the king’s procession. But the line also suggests his
lack of freewill. Renaissance iconography sometimes depicts Justice as blindfolded (and in some
instances, handless)—but not muffled, mute, and silenced. As the king’s counselor, as the
“image” of the sovereign, his words and actions now reflect the king’s designs. “I will hear you
soon” constitutes the LCJ’s promise to listen to Falstaff’s rejoinder to the King’s edict of
banishment. Yet the line also signals the LCJ’s participation in the game of deferral and
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
82
“Sessions, 1613: 4 and 6 August,” in County of Middlesex. Calendar to the Sessions Records: New
Series, Vol. 1: 1612-14, ed. William Le Hardy, British History Online, http://www.british-
history.ac.uk/report.aspx?compid=82310.
170
mediation which leads to the exploitation of the people, according to many contemporary
commentators. Finally, his last line, “take them away,” foreshadows the death of Falstaff and the
“merry” world he represents in the next play. Indeed, the sentence presages the LCJ’s own
erasure for he, like Falstaff, is missing in Henry V.

Fig. 2. Robert Smirke, Falstaff Rebuked, 1795. Folger Shakespeare
Digital Library. The LCJ stands between the King and Falstaff. By
dressing the LCJ in black and Falstaff in white, the artist suggests they
represent opposite poles of the moral spectrum. Note that in Medieval
and Renaissance paintings, royal justices are usually dressed in their
official costume: a red robe trimmed with white fur.
171
The LCJ does not appear in Henry V. His absence directly contradicts Hal’s promise in
5.2 to make the LCJ his “father”:
You shall be as a father to my youth;
My voice shall sound as you do prompt mine ear,
And I will stoop and humble my intents
To your well-practised wise directions. (5.2.117-120)
Hal’s speech here has been read as the play’s endorsement of the theory of “mixed polity”
theorized in common law writing. Raffield, for example, argues the speech expresses a “model
of accountable kingship and limited monarchy, as proposed across the centuries by Bracton,
Fortescue and Coke.”
83
But other critics take up a more skeptical view of Hal’s promise. Stephen
Greenblatt interprets the scene as Hal’s “play” of power; Hal puts the judge through a fake trial
in order to stage his first act of noblesse oblige.
84
I am persuaded by Greenblatt’s reading. Yet
regardless of how we read the scene, the fact remains that Hal’s promise to “humble” his
“intents” by the counsel of his Chief Justice-Father does not materialize in the sequel. In Henry
V, it is Hal and his bishops (whom he manipulates) who resolve thorny legal questions such as
the historical origins of the “Salique law” (1.2.54) and the judgment of the traitors Scroop, Grey,
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
83
Raffield, “The Ancient Constitution,” 41.
84
In his essay (first published in 1980, subsequently reprinted), Greenblatt observes that “Hal’s
characteristic activity is playing or, more precisely, theatrical improvisation…he fully understands his own
behaviour through most of the play as a role that he is performing” (“Invisible Bullets: Renaissance Authority and
Its Subversions,” in William Shakespeare’s Henry IV, Part 2, ed. Harold Bloom, Modern Critical Interpretations
[New York: Chelsea House Publishers, 1987], 138). See also John Blanpied’s analysis of Hal as an “instinctive
dramatist” (97) in his “Henry IV, Part 2: ‘Unfathered Heirs and Loathly Births of Nature,’” in William
Shakespeare’s Henry IV, Part 2, ed. Harold Bloom, Modern Critical Interpretations (New York: Chelsea House
Publishers, 1987), 97.
172
and Cambridge.
85
The absence of the LCJ deprives the court of “wise directions” and allows the
king to rule “entirely regally.”
86

Conclusion
Henry IV, Part 2 refracts magistracy into many vignettes, each pursuing a different logic
The LCJ possesses many of the moral qualities of a good judge as defined by preachers and
moral authors: “deepe understanding,” “boldnesse and courage,” “honesty of Conscience,”
“uprightnesse of Justice,” and “Equitie of Sentence.”
87
But these moral qualities do not enable
him to implement the law. The LCJ mingles with the people, yet that personal contact does not
lead to the people’s lasting happiness. True, the people gain some recognition in the eyes of the
law. However, this in itself does not accomplish the basic “desire” of justice (as defined in
Justinian’s Institutes): to “render to each one that which is his due.”
88
Justinian’s understanding
of justice derives from Aristotle’s Nicomachean Ethics. Aristotle writes that justice is rooted in
equity: giving to each person that which is owed to him. Justice forms the building block of the
polis; the “aim” of politics is the “attainment of…Happiness…‘the good life.’”
89
Do the actions
of the LCJ produce the conditions for justice and the “good life”? It seems not. His judgments
are not enforced and he leaves the people in various states of suffering at the end of the play.
Yet the failure of the familiar model of magistracy does not function as an endorsement
of the professional discourse which views magistracy as a performance of majesty and imagines
legal liminality to be a necessary part of the law. When the LCJ acts as a royal justice, he
becomes an instrument of poetic injustice and for that breach he appears to be condemned to
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
85
William Shakespeare, Henry V, in The Riverside Shakespeare, ed. G. Blakemore Evans et al. (Boston:
Houghton, 1974), 930-975.
86
Fortescue, De Laudibus, 25.
87
This list of moral qualities comes from Garey, Ientaculum Iudicum, Sig. B3r–v.
88
Justinian and Gaius, The Institutes of Gaius and Justinian, The Twelve Tables, and the CXVIIIth and
CXXVIIth Novels, trans. T. Lambert Mears (London: Stevens, 1882), Just. 1.1.
89
Aristotle, Ethics, 1.4.2–3.
173
dramatic oblivion. Thus, the play problematizes both institutional and popular visions of
magistracy.
The character of the LCJ speaks to the desires and anxieties of multiple communities:
common lawyers, preachers, and satirists—perhaps the audience themselves. The journey of the
LCJ magnifies the conflicting cultural forces pressing upon judges. A judge should strive to be
accessible but not common. A judge should view himself as a public servants but (at the same
time) as an embodiment of majesty. A judge should walk among the people but maintain his
distance. He risks subjecting himself to the people’s contempt if he is too accessible. A judge
should be loving. He should be severe. He should listen to his “feeling heart.” He should allow
reason to control his feelings.
Shakespeare’s judge reflects that spectrum of legal representations. As a result, the “law”
which the judge represents becomes an elusive entity; sometimes it resembles the law as it was
imagined, or idealized, by religious and moral-legal authors, and sometimes it appears to bring
up the most alienating aspects of the legal reality. Yet Shakespearean criticism has been
strangely resistant to the ambiguity in Shakespeare’s representation of the law. In debates about
the politics of Shakespearean drama (briefly, whether it advanced republican or monarchical
agendas), critics argue that the law, as embodied by the LCJ, functions as an effective check
upon Hal’s royal power. But such a reading assumes that the LCJ represents a coherent model of
legal governance. The reading is deaf to the ambivalence in Shakespeare’s representation of the
law.
Henry IV, Part 2 documents, to quote Bate, “a panorama of society.”
90
In casting a wide
net, the play captures many of the key social, legal, and political questions of the day. The play is
an archive filled with different jurisprudential concepts. In performance, the play becomes a
""""""""""""""""""""""""""""""""""""""""""""""""""""""""
90
Bate, Soul of the Age, 296.
174
heuristic, an investigative instrument, which exposes those concepts’ internal contradictions. To
be effective, should magistrates strive to be aloof? Should they try to harness the legal apparatus
and all its parts: the entourage, procession, and the bench from which verdicts may be issued?
Henry IV, Part 2 does not provide any clear-cut answers. In withholding an easy resolution to a
persistent cultural problem, and in resisting the affective logic of preachers and other moral
writers, Shakespearean drama breaks free of the popular discourse on magistracy. In the play,
Shakespeare provides ironic reflections on the theories of magistracy proposed by popular and
professional writers. He takes advantage of the heterogeneity of his audience to construct
multilayered satire of law and magistracy. Protean and polyphonic, the play engenders many
readings. The critical desire to attribute to Shakespeare a constitutional, common law “mind”
seems to ignore the possibility that Shakespeare’s perception of the law could be ironic,
ambivalent, and mutable, or that he could appreciate differences between professional and
popular modes of jurisprudence.
175
Chapter 4
Disclosing Law’s Mysteries:
Bacon and the Universalization of Legal Knowledge
*
The previous chapters investigated the logic and performance of popular jurisprudence.
Whereas professionals defined legal expertise as knowledge of law’s procedures, history, and
customs, non-professional writers—dramatists, preachers, pamphleteers, and moral essayists—
argued that jurisprudence, legal knowledge, arose from moral passion and religious feeling. The
idea surfaces in numerous texts, including the literature on magistracy examined in the last
chapter. Preachers and moral writers, especially, posited a link between legal knowledge and
Christian love. They acknowledged the professionals’ position that magistrates needed to know
the law. But they insisted true learning was grounded in piety. A “magistrate” was “good” in so
far as he demonstrated compassion. Preachers encouraged magistrates to imagine the petitioners
as members of his family. Such an adjustment in attitude would enable the magistrate to perceive
more deeply the nature of the people’s struggle. To reinforce this doctrine, the authors cited the
deeds of famous magistrates from biblical and classical literature. Job was the archetypal
“father” who cared for his constituents as if they were his own children. Be like Job, David, and
other heroic judges of the golden age, exhorted preachers. Conduct the law without “fear,” but do
also cultivate an emotional connection with the people. Thus, preachers agreed that legal officers
needed to understand the technical aspects of the law. Yet they emphasized knowledge of justice
(equity) was the rarest, purest form of jurisprudential wisdom. Divergent accounts on the
character of the magistrates highlight the growing division between popular and professional
legal textual discourses in this period. Religious and moral writers were immersed in the
176
language of equity, conscience, love, and moral passion. However, this discourse was beginning
to sound increasingly out of touch with the professional discourse on “artificial reason”: legal
knowledge honed through historical study of law’s past.
In this final chapter, I examine a crucial moment in the development in the literature on
jurisprudence. Between the 1600s and 1620s, Francis Bacon and Edward Coke tried to steer the
course of English jurisprudence—how the law was known and how that knowledge could be
disseminated to others—and by implication, the thornier question of who could qualify as a legal
interpreter. Both Bacon and Coke were common lawyers by training. Both were prolific authors
of legal treatises. Both were experienced judges: Bacon of the court of Chancery and Coke of the
King’s Bench. But their legal writing reflected different jurisprudential traditions.
1
Coke argued
legal wisdom was achieved through reading and experience. Bacon advocated the use of
conscience and natural reason. The ensuing debates between “Solon’s self” and the “happie
Genius” (to quote Jonson’s epithets for Coke and Bacon) reveal the historic fracturing of
professional and popular understandings of legal reason and knowledge.
Bacon’s writing reveals an intellectual investment in popular jurisprudence. It was
Bacon’s lifelong mission to “disclose” the law to all people through aphorisms and maxims,
prose genres which have ancient roots and popular usage. Yet Bacon’s approach is not without
internal contradictions. A paradox arises out of his impulse to make legal knowledge universally
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
Despite his vexed relationship with Coke, Bacon commended Coke’s Reports to James I: “that (to give
every man his due) had it not been for Sir Edward Coke’s Reports (which though they may have errors, and some
peremptory and extrajudicial resolutions more than are warranted, yet they contain infinite good decisions and
rulings over of cases), the law by this time had been almost like a ship without a ballast; for that the cases of modern
experience are fled from those that are adjudged and ruled in former time” (Francis Bacon, “A Proposition to his
Majesty by Sir Francis Bacon, Knight, His Majesty's Attorney-General, and one of his Privy Council; Touching the
Compiling and Amendment of the Laws of England, 1616,” in The Letters and the Life of Francis Bacon Including
All His Occasional Works, ed. James Spedding, vol. 6 [London: Longman, 1872; repr. Stuttgart-bad Cannstatt:
Holzboog, 1963], 65). At the same time, Bacon entertained the “good hope” that “when Sir Edward Coke’s Reports
and my Rules and Decisions shall come to posterity, there will be (whatsoever is now thought,) question who was
the greater lawyer” (ibid., 70).
177
known and his desire to foreclose debate about the meaning of the law. I investigate the nature
and outcome of that contradiction from three angles. The first section explores how an obsession
with “right reason” (as opposed to Coke’s historical jurisprudence) spurred Bacon’s proposals
for law reform. In this section, I will be paying close attention to his Example of a Treatise on
Universal Justice or the Fountains of Equity, by Aphorisms: One Title of It (hereafter A
Treatise), which he styled a “model of the rest of the Digest.” The second section examines
Bacon’s understanding of legal wisdom and the moral character of the “wise” lawmaker. Bacon
revives a classical division of intellectual labor between advocates and juris-consults. Bacon
claims the former possess surface knowledge of the law, the latter, “deep” learning on account of
their moral virtue.
The third section pries apart Bacon’s aphoristic theory to examine its internal
contradictions. On the one hand, Bacon writes that aphorisms have the power to liberate the
mind from the restrictive Ramist “method” and unveil the “mysteries” in the law. Aphorisms are
nuggets of knowledge distilled and free-standing; their formal flexibility inspire intellectual
engagement, allowing the “wits of men” to “turn and toss.” At the same time, Bacon claims the
very act of legal interpretation will become unnecessary thanks to the rewriting of legal
knowledge. He reasons that if the written law, delivered in aphorisms, could be made to achieve
a perfect synchronicity with “universal justice,” then legal debates and judicial “discretion”
would become obsolete. How can legal aphorisms accomplish these disparate outcomes, to
inspire the “wits” and constrain them? This question, arising from studying Bacon’s aphoristic
theory, weighs on our understanding of the literature of popular jurisprudence. Previously, we
witnessed the idea of popular jurisprudence conferring legal authority on non-professionals,
interpellating them as capable legal readers and debaters. But behind the democratic outlook
178
lurks an opposite ideology: to negate debate. Bacon’s aphoristic theory allows us to closely
examine the philosophical tension between participation and obedience.
1. The Reformation of Legal Knowledge
“I do not understand his enigmatical folded writing,” complained Lady Ann Bacon.
2

Bacon’s Novum Organon was “like the peace of God, that passeth all understanding,” quipped
James I.
3
These readers found Bacon’s writing impenetrable. This has become part of Bacon’s
mythology. For example, Victorian readers were fascinated by Bacon’s use of the biliteral
cipher.
4
But as Daniel Coquillette has pointed out, when it came to writing the law, Bacon
adopted an open and accessible style. In his legal treatises, Bacon employs a rhetoric of
participation particularly with respect to the issue of legal knowledge. Critics have not always
recognized this aspect of Bacon’s jurisprudence. The reluctance stems, in part, from a particular
historiographical tradition which seeks to read Bacon as an elite author writing for other legal
and political insiders.
5
According to this critical tradition, Coke stood on the “right” side of
history as the defender of the courts, parliament, and the rule of law. Bacon did not. Richard
Helgerson summarizes the ideological gulf separating Bacon and Coke thusly: “Bacon favored
the king; Coke, the law.”
6
And on Bacon’s legal writing and publication, Helgerson argues that
“from first to last, Bacon imagined the writing (or rewriting) of the law as belonging essentially
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
2
Letter dated 18 April 1593 qtd. in Lisa Jardine and Alan Stewart, Hostage to Fortune: The Troubled Life
of Francis Bacon 1561–1726 (London: Gollancz, 1998), 202.
3
Letters 7:168n.1.
4
William H. Sherman, “How to Make Anything Signify Anything,” Cabinet 40 (2010-11).
5
According to Daniel R. Coquillette, “Whig” historians “denied” Bacon “credit for…the first sustained
analytical, secular, and inductive approach to jurisprudence” (Francis Bacon [Stanford: Stanford University Press,
1992], viii).
6
Richard Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of
Chicago Press, 1992), 74.
179
to the monarch…without a royal author the law could not be written. No other source of
authority was imaginable.”
7

But this tells half the story. It is true that Bacon’s letters and published works reveal his
seemingly slavish dependency on royal patronage. Bacon happily compared James I to a latter-
day Moses and David.
8
Additionally, to prove his utility to the king, Bacon defended the king’s
policies on many occasions against the interests of the common law courts and judges. But
Bacon also spoke of the reformation of legal knowledge—and its dissemination to the common
people and its preservation for future generations—as a collective endeavor requiring many
minds and hands. For instance, in De Augmentis Scientarium (1623), Bacon describes legislators
(the “king” and “state”), judges, lawyers, clerks, reporters, and lesser legal officers working in
tandem to write, record, publish, and archive the law. I do not mean to suggest that Bacon’s
writing presaged eighteenth-century republicanism. But I do contend that critics have tended to
discount the participatory rhetoric in Bacon’s literature in part because it does not fit into the
view of Bacon as an apologist for “Stuart absolutism.”
Behind Bacon’s rhetoric of participation was an ambition to bring about an “instauration
of the laws” (aph. 64)—to make the laws “known and certain” to the people (aph. 39).
9
Bacon
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
7
Ibid., 75.
8
In De Augmentis, Bacon calls James I a “Moses or a David, that is, shepherds of their people.” He goes on
to praise James I’s analysis of the royal prerogative: “[n]either can I ever forget the observation so truly worthy of a
king, which your Majesty delivered, in the same sacred spirit of government, in deciding a great cause of judicature;
which was, 'That kings ruled by the laws of their kingdoms, as God did by the laws of Nature, and ought as rarely to
put in use their supreme prerogative, as God does his power of working miracles.' And yet, notwithstanding, in your
other book of a free monarchy it well appears that you no less perceive and understand the plenitude of the power of
a king, and the ultimities (as the schoolmen say) of regal rights, than the circle and bounds of his office and duty”
(Francis Bacon, The Works of Francis Bacon, ed. James Spedding, Robert Leslie Ellis, and Douglas Denon Heath,
vol. 5 [London: Longman, 1858], 16).
9
Francis Bacon, An Example of a Treatise on Universal Justice or the Fountains of Equity, by Aphorisms:
One Title of It, in Bacon, The Works of Francis Bacon, 5:88–110. Because I refer to this text numerous times, I will
use in-text parenthetical citation to indicate the aphorism. Bacon’s attack on legal “uncertainty” was anticipated by
Thomas More in Utopia, in which we learn that Utopians have
180
recognized the amalgamated nature of English law. He claimed it was “as mixt as our language,
compounded of British, Roman, Saxon, Danish, Norman customs” and believed, also, that both
the language and the law were “much the richer” and “more complete” for that mixture.
10
His
“instauration” was not concerned with changing the “nature” or “matter of the laws” but their
textual presentation: the “manner of their registry” and “expression.”
11
Improving the “registry”
of the law required, in his view, editing the laws so that they formed a more manageable set of
rules, maxims, and aphorisms. This alteration would help professionals and non-professionals
alike. By teaching the people a set of legal rules based on “universal justice and equity,”
the great hollowness and unsafety in assurances of lands and goods may be
strengthened; the snaring penalties that lie upon many subjects removed; the
execution of many profitable laws revived; the judge better directed in his sentence;
the counsellor better warranted in his counsel; the student eased in his reading; the
contentious suitor that seeketh but vexation disarmed, and the honest suitor that
seeketh but to obtain his right relieved.
12

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !
…very few laws…What’s more, they have no barristers to be over-ingenious about individual cases
and points of law. They think it better for each man to plead his own cause, and tell the judge the same
story as he’d otherwise tell his lawyer. Under such conditions, the point at issue is less likely to be
obscured, and it’s easier to get at the truth—for, if nobody’s telling the sort of lies that one learns from
lawyers, the judge can apply all his shrewdness to weighing the facts of the case, and protecting
simple-minded characters against the unscrupulous attacks of clever ones…in Utopia, everyone’s a
legal expert.
More’s first reaction, upon hearing the description, is to imagine “various objections” and to conclude the “laws and
customs of that country seemed to me in many cases perfectly ridiculous.” From Thomas More, Utopia, ed. S. J.
Surtz (New Haven, CT: Yale University Press, 1964), 114.
10
Francis Bacon, “A Proposition to his Majesty by Sir Francis Bacon, Knight, His Majesty’s Attorney-
General, and one of his Privy Council; Touching the Compiling and Amendment of the Laws of England,” in Bacon,
The Letters and the Life of Francis Bacon Including All His Occasional Works, 6:63.
11
Ibid.
12
Francis Bacon, The Works of Francis Bacon, ed. James Spedding, Robert Leslie Ellis, and Douglas
Denon Heath, vol. 7 (London: Longman, 1861; repr. Stuttgart-bad Cannstatt: Holzboog, 1963), 58.
181
All the parties would benefit from his law reform program, including the “judge,” “counsellor,”
“student,” and “suitor.”
As a young member of parliament, Bacon complained that “obscurities” in law generated
confusion among both commoners and lawyers. Addressing parliament in 1593, Bacon grumbled
that
scarce a whole year would suffice, to purge the statute-book nor lessen the volume of
laws;—being so many in number that neither common people can half practice them,
nor the lawyer sufficiently understand them.
13

He especially disapproved of what he would later term the “loquacity and prolixity used in the
drawing up of laws” (aph. 65). Bacon fired a shot at “the enormous multitude of authors and
doctors of laws” and accused them of generating useless and redundant legal commentary,
causing the laws to be “distracted” (aph.78, 104). He argued that many of the legal delays and
jurisdictional struggles can thus be traced back to the uncertainty of the laws: “the uncertainty of
law…is the principal and most just challenge that is made to the laws of our nation at this
time.”
14

Parliamentary speeches, letters, essays, and various treatises reveal the depth of Bacon’s
obsession with law reform.
15
He discusses it in one of his earliest publications, A Brief Discourse
upon the Commission of Bridewell (1587). He alluded to it in the Fifth Counselor’s speech in
Gesta Grayorum (1594).
16
He returned to the topic once again in Maxims of the Law (c. 1596-7),
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
13
Works 8:214.
14
From the Preface of Maxims of the Law (Works 7:319).
15
For a comprehensive list of Bacon’s legal writings, see “Appendix II: Chronology of Bacon’s Most
Important Philosophical and Juristic Writing (In Approximate Order of Creation, Not Publication)” in Coquillette,
Francis Bacon, 323–331.
16
The counselor exhorts the Prince to “look to the State of your Laws and Justice of your Land; purge out
multiplicity of Laws, clear the incertainty of them, repeal those that are snaring, and prize the execution of those that
are wholesom and necessary; define the Jurisdiction of your Courts, reprize all Suits and Vexations, all causless
182
Reading on Statutes of Uses (1600), and the unpublished manuscript Aphorismi de jure gentium
(c. 1614).
17
Finally, he summarized his ideas in A Treatise, in which Bacon outlined not the
necessity for law reform also presented a model for the kind of legal aphoristic writing he
believed was essential for the reform program. For Bacon, only law reform on a massive scale
could break the destructive cycle. The large-scale restructuring and reorganization of the legal
system entailed many changes: the creation of superior courts, the “Centorian” and “Praetorian”
courts, which would review the decisions of lesser jurisdictions, the appointment of reporters to
all major courts, and finally, the synthesis of legal knowledge into a code or digest, which would
be a “sound and manageable body” (aph. 59). He optimistically promised that the English legal
code would exceed the Roman precedent, for Justinian’s code was written by a “less wise and
less learned generation” who “mutilated” the Roman law. Under Bacon’s supervision, and those
of other “wise men,” the English code would be “undertaken in such times as are superior in
learning and experience to those more ancient times” (aph. 64).
In choosing to “disclose” the law using aphorisms, Bacon breaks away from both Coke’s
legal philosophy and style of writing the law. Coke was a proponent of historical jurisprudence
and “artificial reason.” In response to James I’s statement, “I will never trust any Interpretation,
that agreeth not with my common sense and reason, and trew Logicke,” Coke posited a
distinction between natural reason and artificial reason:
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! !
Delays and fradulent Shifts and Devices, and reform all such Abuses of Right and Justice, assist the Ministers
thereof, punish severely all Extortion and Exactions of Officers, all Corruptions in Trials and Sentences of
Judgment” (Gesta Grayorum [London, 1688], Sig. [F4]r–v). Although the identity of the author is unknown, many
critics attribute authorship to Bacon.
17
For an English translation of Aphorismi de jure gentium maiore sive de fontibus justiciae et juris see
Mark Neustadt, “The Making of the Instauration: Science, Politics and Law in the Career of Francis Bacon” (Ph.D.
diss., Johns Hopkins University, 1987), 272–299.
183
His majesty was not learned in the laws of his realm of England, and causes which
concern the life or inheritance, or goods, or fortunes of his subjects. They are not to
be decided by natural reason, but by the artificial reason and judgment of law.
18

For Coke, the seasoned legal practitioner, in possession of “artificial reason,” was more “learned
in the laws.” This distinction between the two forms of reason was central to Coke’s legal
philosophy.
The phrase “historical jurisprudence” did not exist in Coke’s period. It is an invention of
nineteenth-century German legal historiography. Yet scholars have used the phrase to describe
Coke’s philosophy of law. What does it mean to write historical jurisprudence? In a broad sense,
it means to write “any work of legal history on a large scale, at least so long as it explicitly or
tacitly draws from its historical material inferences about the nature and origin of law.”
19
By this
definition, one of the most important examples of historical jurisprudence is the philological
study of Roman law undertaken by humanists, many in French universities during the
Renaissance. This movement was known as the “mores gallicus” or “mos gallicus.” A new
generation of jurists including Budé, Alciato, Cujas, Doneau, Hotman, and Bodin accused
scholastics such as Bartolus, Giason del Mano, and Baldus of mangling Justinian’s laws with
their glosses. The scholastics were also attacked by Italian humanists such as Angelo Poliziano,
Pico, Ermolao Barbaro, Lorenzo Valla, and Petrarch.
20
The humanists promoted the study of
Roman civil law using historical and philological methods. To quote J. G. A. Pocock, as the legal
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
18
James I, “A Speach in the Starre-chamber,” qtd. in Francis Bacon, The Essayes or Counsels, Civill and
Morall, ed. Michael Kiernan (Oxford: Clarendon, 2000), 308 (n. to ll. 41–2 to “Of Judicature”). Coke qtd. in
Helgerson, Forms of Nationhood, 99.
19
A. H. Campbell, “A Note on the Word ‘Jurisprudence,’” Law Quarterly Review 58 (1942): 338.
20
Donald R. Kelley, “Civil Science in the Renaissance: Jurisprudence Italian Style,” The Historical
Journal 22, no. 4 (1979): 777–94; Donald R. Kelley, “Vera Philosophia: The Philosophical Significance of
Renaissance Jurisprudence,” Journal of the History of Philosophy 14, no. 3 (1976): 267–79; Linton C. Stevens, “The
Contribution of French Jurists to the Humanism of the Renaissance,” Studies in the Renaissance 1 (1954): 92–105.
184
humanists “set about comparing and establishing the various meanings which all such words
bore,” they “came to be historians.”
21

Used in a specific sense, in the context of the development of English jurisprudence,
historical jurisprudence signifies the study of law perfected by Coke and other common lawyers
during the seventeenth century. As Harold Berman explains, Coke and other lawyers of the
seventeenth century located the “primary source of the validity of law—including both its moral
validity and its political validity” in the law’s “historical character…the customs and traditions
of the community.”
22
Donald R. Kelley adds another dimension to this discussion by observing
that Coke’s legal philosophy contained a “supra-historical” element in that he believed the
“sacred records of English law…reflected…the timeless and unchanging body of common
law.”
23
In other words, Coke’s jurisprudence simultaneously evokes the historical nature of
English law and argues for that law’s eternal, timeless character.
Coke’s legal philosophy is manifested in the very form of his legal treatises. To
emphasize the historical continuity of English common law, Coke translated Thomas Littleton’s
Tenures and enveloped it with his own commentary. Coke justified his commentary by claiming
that his commentary reflected “the resolutions of judges in courts of justice” whereas the
commentary of the “doctors” and “advocates” (an allusion to Bartolus, Baldus, and the Medieval
scholastic authors) merely expressed “private interpretations”:
The difference then between those glosses and commentaries and this which we
publish is that their glosses and commentaries are written by doctors, which be
advocates, and so in a manner private interpretations, and our expositions or
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
21
J. G. A. Pocock, The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in
the Seventeenth Century: A Reissue with a Retrospect (Cambridge: Cambridge University Press, 1987), 9–10.
22
Harold J. Berman, “The Origins of Historical Jurisprudence: Coke, Selden, Hale,” Yale Law Journal 103,
no. 7 (1994): 1655.
23
Donald R. Kelley, “History, English Law and the Renaissance,” Past and Present 65 (1974): 33.
185
commentaries…are the resolutions of judges in courts of justice in judicial courses of
proceeding, either related and reported in our books or extant in judicial records or in
both, and therefore being collected together shall (as we conceive) produce certainty,
the mother and nurse of repose and quietness.
24

Coke’s commentary, to quote Kelley, “maintains the…hermetic character…of common law.”
25

Additionally, Helgerson observes that Coke’s gloss invented an “arcana” for the common law
which Coke then used to “exclude the king even from the judgment seat in his own Court of Star
Chamber…and empower…a professional community of learned lawyers.”
26
Building on this
critical view, Virginia Strain argues that Coke’s “oracular” rhetoric mystifies the law.
27
Coke’s
historical jurisprudence left a great mark on the development of Anglo-American legal
philosophy and practice. As discussed in the introduction, it is Coke’s definition of
“jurisprudence” as dedicated “study” which shapes professional legal epistemology and practice.
In contrast, Bacon understood jurisprudence to be the use of man’s own reason, his
natural reason, to illuminate what Bacon saw as the darkness of custom. “Let reason be esteemed
prolific, and custom barren,” he declared (aph. 11). Through induction, or “right reason” and
“good reason,” lawmakers could cut through “barren” custom to perceive the true nature of
justice and equity (aphs. 23, 62, 46).
28
Their knowledge of justice could be taught to others, both
legal professionals and non-professionals, through aphorisms or maxims. Hence, despite his
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
24
Coke, 1 Institute, qtd. in ibid.
25
Kelley, “History, English Law and the Renaissance,” 33.
26
Helgerson, Forms of Nationhood, 100.
27
Virginia Lee Strain, “The Winter’s Tale and the Oracle of the Law,” ELH 78, no. 3 (2011): 557–84.
Strain concludes that Coke’s historical jurisprudence was a “judicial narrative” which “manufactured judicial
authority” (559).
28
On Bacon’s principle of induction, Peter Stein explains: “Bacon conceived of a maxim as a succinct
general principle derived by induction from a number of cases which have been decided in the same way” (Regulae
Juris: From Juristic Rules to Legal Maxims [Edinburgh: University of Edinburgh Press, 1966], 171).
186
training in the English common law, Bacon cultivated an European civil law jurisprudential
outlook by emphasizing the power of natural reason over Coke’s “artificial reason” and “study.”
Coke believed judicial opinions, written in commentaries, could bring “certainty” to the
people. In contrast, Bacon proposed that certainty in law was found in rules, maxims, or
aphorisms: the “rules of law” are like “the best tables of contents” for they reflect the “general
dictates of reason” (aph. 82). The laws “by accumulation have grown so voluminous or become
so confused”; it was time that they were “reduce[d]…to a sound and manageable body” (aph.
59). Putting theory to action, Bacon claimed to have drafted three hundred maxims; only twenty-
five of them survive.
29
Bacon’s ultimate goal was, as he put it, to “disclose the oracles and
mysteries of laws” and the “many things [which] lie concealed in the laws.”
30

In The Advancement of Learning, Bacon alludes to having “begun a work…in aphorism”
clarifying the “administration” and “animation of laws.”
31
This work is the unfinished A
Treatise, which completes book eight of De Augmentis.
32
The text is not as frequently cited as
some of Bacon’s other works so I will briefly describe its thematic content and the historical
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29
Bacon mentions writing three hundred maxims but only twenty-five survive. See John C. Hogan and
Mortimer D. Schwartz, “On Bacon’s ‘Rules and Maximes’ of the Common Law,” Law Library Journal 76 (1983):
48–77; John C. Hogan and Mortimer D. Schwartz, “A Translation of Bacon’s Maxims of the Common Law,” Law
Library Journal 77 (May 1984): 707–18. The latter is an English translation and commentary on the extant twenty-
five maxims.
30
Works 5:107. This passage comes from Maxims of the Law, in which he recommends various law
reforms including “[c]ollect[ing] the different forms of pleading of every sort” (Works 5:107).
31
Francis Bacon, The Advancement of Learning, in Francis Bacon: The Major Works, ed. Brian Vickers
(Oxford: Oxford University Press, 2002), 287.
32
In Latin, the title is Exemplum tractatus de justitia universali, sive de fontibus iuris, in uno titulo, per
aphorismos. The Treatise forms the last section of the eighth book in On the Dignity and Augmentation of the
Sciences (De Dignitate et Augmentis Scientiarum) published in 1623 or two years after his dismissal from the office
of Lord Chancellor. This book expanded his earlier work The Advancement of Learning (1605). It was to be the first
part of his six-part Instauratio Magna (Great Instauration). The scholarship on A Treatise is limited, but see
Coquillette, Francis Bacon; Neustadt, “The Making of the Instauration.”
187
context of its composition. A Treatise contains ninety-seven aphorisms.
33
The aphorisms are
written in Latin, the language of the “cosmopolitan” yet non-professional audience.
34

The structure of A Treatise reflects Bacon’s attempt to “open” the law to general readers.
The page is clean; few citations appear along the margins. Indeed, citations to external
authorities are limited to well-known sources such as Aristotle’s Rhetoric and Ethics,
Xenophon’s Hellenica, Plutarch’s Themistocles, Erasmus’s Adages, Thucydides’s Histories,
Justinian’s Institutes, and the Bible, namely, 1 Corinthian and Psalms. With the exception of
perhaps Justinian’s Corpus, the citations would have been instantly familiar to grammar school
educated readers. The intertextual references act as anchors helping to ground readers in a
familiar world of classical learning and Christian religion. The marginalia presage the text’s
commitment to “Universal Justice,” and its intent to blend jurisprudence with literary,
philosophical, and spiritual discourse. This mise-en-page is all the more remarkable for it is a
distinct departure from Bacon’s previous Maxims of the Law which had been written for a
professional audience—probably his fellow lawyers of Gray’s Inn. In Maxims, Bacon uses Latin
for the maxims themselves, English for the explication, and Law-French for the marginal
comments, the latter being the internal language of the law. In Maxims, Bacon cites common law
jurists, cases, and statutes: “Stanff” or Stanford, “Lit.” or Thomas Littleton, “Plow.” or Edmund
Plowden.
35

The division and arrangement of the aphorisms ease readers into the text. The aphorisms
are divided from general considerations to more specific ones; a discussion of justice and equity
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
33
In choosing this number, he may have been alluding to Luther’s ninety-seven theses, the inspiration for a
reformation of a different kind.
34
Coquillette, Francis Bacon, 237.
35
Francis Bacon, A Collection of Some Principal Rules and Maximes of the common Lawes of England
(London, 1630), Sig. I3r, Sig. H2r, Sig. E4r. The book is bound with The Use of the Law (1630) and together they
comprise Francis Bacon, The Elements of the Common Lawes of England (London, 1630).
188
is followed by a close examination of the different stages and parts of law reform. Throughout,
Bacon avoids legal technicalities and controversies which might alienate non-professional
readers. For example, the first aphorism opens with a commonsense statement:
In Civil Society, either law or force prevails. But there is a kind of force which
pretends law, and a kind of law which savours of force rather than equity. Whence
there are three fountains of injustice; namely, mere force, a malicious ensnarement
under colour of law, and harshness of the law itself (aph. 1).
The aphorism posits that law ought to be synonymous with equity. This is a popular doctrine, as
we saw in the previous chapters. When laws fail to advance equity, they become “force,” which
splits into “three fountains of injustice”—“force,” “malice,” and “harshness.” This is, again, a
familiar analysis, heard throughout the realm in popular media.
2. Wisdom of the Lawmakers
Bacon traces the deficiency in the law to the people tasked with the handling of it.
Drawing on an ancient bias against forms of “mechanical” knowledge, Bacon contrasts the
learning of lawyers and to the wisdom of the lawmaker. In a section titled “De prudentia
legislatoria” (from the second book of The Advancement of Learning), he argues:
all those which have written of laws, have written either as philosophers or as
lawyers, and none as statesmen…the philosophers…make imaginary laws for
imaginary commonwealths…the lawyers…write according to the states where they
live, what is received law, and not what ought to be law: for the wisdom of a
lawmaker is one, and of a lawyer is another.”
36

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
36
Bacon, The Advancement of Learning, 287.
189
According to Bacon, lawyers are ill-equipped to write the law because they fail to perceive “what
ought to be law.” Statesmen, by contrast, write the law according to their superior “wisdom.”
This passages expands on a similar comparison in book one:
We see it is a like error to rely upon advocates or lawyers which are only men of
practice and not grounded in their books, who are many times easily surprised when
matter falleth out besides their experience, to the prejudice of the causes they handle.
So by like reason it cannot be but a matter of doubtful consequence, if states be
managed by empiric statesmen, not well mingled with men grounded in learning.
37

Bacon deems the knowledge of lawyers narrow, bookish, and lacking in philosophical
“wisdom.” Lawyers are “only men of practice” not of “learning.” They lack the imagination or
prudence to anticipate or solve novel problems. Although he was a lifelong (and dedicated)
member of Gray’s Inn, he broke rank with the profession to criticize lawyers’ learning.
What explains the “grounded” learning of statesmen? In writing the character of the wise
statesman, Bacon draws on ancient material, specifically Roman literature, which divides legal
work between advocates and juris-consults.
38
The Corpus Juris Civilis defines the key
differences:
It was formerly provided that there should be public interpreters of the law, to whom
the power of expounding of the law was given by the emperor, and who were called
juris-consults. The unanimous decisions and opinions of these persons had such
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
37
Ibid., 127.
38
Ironically, the same strategy of generating difference employed by Bacon was used by lawyers in their
battle with the “pettyfoggers.” Lawyers were fond of quoting Quintilian’s definition of the lawyer as “no hack
advocate” but “a man…uniquely perfect in every detail and utterly noble” (qtd. in Christopher W. Brooks,
Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern
England [Cambridge: Cambridge University Press, 1986], 179).
190
weight that it was settled by a constitution that the judge should not be at liberty to
decide otherwise.
39

According to Marcia Colish, it was during the classical period (100 BCE to 350 CE) that
distinctions between juris-consults and advocates (or rhetor) became pronounced.
40
Renaissance
legal humanists revived the ancient division—and prejudice. During the “war of the faculties”
between humanists and scholastics in the fourteenth and fifteenth centuries, humanists yearned
for the resurrection of the office of the juris-consult, the “public interpreters of the law,” who
blended philosophy with legal learning. Guillaume Budé, for instance, complained that in his
time, “‘the study of law has degenerated from its original state. Today there are no longer juris-
consults, or philosophers, but only lawyers (jurisperiti).’”
41
Budé’s deprecation of “lawyers” and
their learning (or lack thereof) anticipates Bacon’s criticism.
In a letter to the Earl of Rutland, Bacon advises, “your Lordship’s end and scope should
be that which in moral philosophy we call ‘cultum animi,’ the tilling and manuring of your own
mind.”
42
In Bacon’s view, the richest fertilizers for intellectual and spiritual growth (“the
grounds of learning”) are the “liberal arts.” Hence, he tells Rutland to read the “Histories, for
they will best instruct you in matter moral, military, and politic, by which and in which you must
ripen and settle your judgment.”
43
However, wisdom is also dependent on “goodness” or
philanthropic love. In his essay on “Goodnesse” (1597, 1625), Bacon proclaims:
I take Goodnesse in this Sense, the affecting of the Weale of Men, which is that the
Grecians call Philanthropia…This of all Vertues…is the greatest; being the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
39
Justinian and Gaius, The Institutes of Gaius and Justinian, The Twelve Tables, and the CXVIIIth and
CXXVIIth Novels, trans. T. Lambert Mears (London: Stevens, 1882), Just.1.2.§8.
40
Marcia L. Colish, The Stoic Tradition from Antiquity to the Early Middle Ages (Leiden: Brill, 1985), 351.
41
Guillaume Budé qtd. in Kelley, “Vera Philosophia,” 268.
42
Francis Bacon, “Advice to the Earl of Rutland on His Travels,” in The Major Works, ed. Brian Vickers
(Oxford: Oxford University Press, 2002), 69.
43
Ibid., 73.
191
Character of the Deitie: And without it, Man is a Busie, Mischievous, Wretched
Thing; No better then a Kinde of Vermine.
44

Actions which improve the condition of the “Weale of Men” are praised as displays of
“goodnesse,” “philanthropia,” and “vertue.” In a revealing personal letter to William Cecil,
Bacon describes his “contemplative” work—to “bring in…profitable inventions and discoveries”
and at the same time “purge” knowledge of “frivolous disputations, confutations, and
verbosities” and “blind experiments and auricular traditions and impostures”—as a
demonstration of his own “philanthropia.”
45
The idea of public service, of doing good for
mankind, was central to Bacon’s understanding of what it meant to be a politician and lawyer.
46

Philanthropy (philanthropia in Greek and humanitas in Latin) is an elusive term.
47

Aristotle describes it as “fellow-feeling” and a “basic sense of justice,” emotions which arise
from tragic spectacle.
48
Philanthropy in this aesthetic sense is a kind of emotional, not material,
transaction between parties. Plutarch, however, uses it to signify the “affability, courtesy,
liberality, kindness, clemency” which a social superior might display towards an inferior through
a material exchange.
49
Thus, Plutarch discusses the philanthropic action of Cimon who improved
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
44
Bacon, The Essayes or Counsels, Civill and Morall, 39. In a further elaboration of the philanthropic
feeling or “goodness,” Bacon compares the feeling as that which makes man a “Citizen of the World” (40).
45
Francis Bacon, “Letter to Lord Burghley,” in The Major Works, ed. Brian Vickers (Oxford: Oxford
University Press, 2002), 20. Bacon speculates that in addition to “philanthropia,” his efforts may be motivated by
less praise-worthy desires such as “curiosity, or vain-glory” (ibid).
46
For a reading of Bacon’s philanthropy as a form of Christian charity, see Masao Watanabe, “Francis
Bacon: Philanthropy and the Instauration of Learning,” Annals of Science 49, no. 2 (1992): 163–73. Watanabe
writes that “mutual sympathy and charity among mankind comprises the basis of Bacon’s philanthropy” and argues
that Bacon’s New Atlantis epitomizes the charitable agenda (165). I believe it is more productive to pursue the
classical connotation of the word: Bacon could have, but did not, use the word “charity” (caritas).
47
On the complex usage of the term in Plutarch’s Lives, see Hubert Martin Jr., “The Concept of
Philanthropia in Plutarch’s Lives,” The American Journal of Philology 82, no. 2 (1961): 164–75.
48
Aristotle, Poetics, in Aristotle: Poetics. Longinus: On the Sublime. Demetrius: On Style, trans. Stephen
Halliwell (Cambridge: Harvard University Press, 1995), n.105 (69).
49
Martin Jr., “Concept of Philanthropia,” 174.
192
the lives of fellow citizens by expending his own resources to improve their quality of life.
50

According to Plutarch, Cimon spent money “honourably on the citizens of Athens” by providing
a “daily meal” for any hungry citizen so that the citizen may “concentrate on his public duties,”
by “mak[ing] the legendary fellowship of the age of Cronus once more a feature of human life,”
and by “turn[ing] his home into a kind of town hall for public use,” by “embellish[ing] the city
with…refined haunts…and…shady walks.”
51
By cultivating this virtue—this feeling of “love”
towards mankind—a philanthropos like Cimon achieved both personal fulfillment and happiness
for the citizens.
For Bacon, the law serves as a platform for producing social “happiness.” In De
Augmentis Scientiarium, Bacon states, “[t]he end and scope which laws should have in view, and
to which they should direct their decrees and sanctions, is no other than the happiness of the
citizens” (aph. 5). In the “Epistle Dedicatory” in Maxims of the Law, Bacon claims that law
reforms by exemplary princes (whom he names as Justinian, Edward I, Elizabeth herself)
produce “the better uniting of human society.”
52
Finally, in his biography of Henry VII, he
praises the Tudor king for making “deep” laws for the “happiness” of the people
…so as he may justly be celebrated for the best lawgiver to this nation after King
Edward the First...his laws...are deep...not made upon the spur of a particular
occasion for the present, but out of the providence of the future; to make the estate of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
50
On vita activa Cicero argues that “to be drawn by study away from active life is contrary to moral duty.
For the whole glory of virtue is in activity” (Cicero, De officiis, trans. Walter Miller [Cambridge, MA: Harvard
University Press, 1913], 1.6).
51
Plutarch, Greek Lives: A Selection of Nine Greek Lives, trans. Robin Waterfield (Oxford: Oxford
University Press, 1998), 126, 128, 132.
52
Works 7:314.
193
his people still more and more happy, after the manner of the legislators in ancient
and heroical times.
53

Such statements, with their emphases on “happiness,” connect Bacon’s program to the classical
humanist tradition.
Coke and Bacon were omnipresent in each other’s political and legal careers. And in
Bacon’s letters about Coke, and even more so in his published writings on the law, it is clear that
Bacon crafted his own legal and political identity in contrast to the professional legal character
which Coke performed, in print and in person. For Bacon, the figure of the professional legal
expert so exemplified by Coke did not fit the platform of masculinity, nobility, and knowledge to
which Bacon adhered. Despite his professional ties to common law culture, Bacon did not
identify himself as a common lawyer in the way Coke did. Instead, he continually evoked the
paradigm of civic humanism, which positioned intellectual inquiry in terms of the “happiness” of
all citizens. I do not meant to suggest that Coke was ill-versed in Ciceronian political
philosophy.
54
But Coke’s intellectual hero was, by his own admission, Thomas Littleton. In
contrast, Bacon looked across space and time to Republican and post-classical Rome. He
modeled his public persona on the Roman juris-consult, the gentleman-jurist-statesman whose
intellectual and legal activities were motivated by philanthropic feeling.
3. The Paradox of Baconian Jurisprudence
In this section, I explore the tension in Bacon’s aphoristic theory. Bacon argues that
aphorisms have the ability to spark the imagination so that it may “toss and turn.” Yet he also
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
53
Francis Bacon, The History of the Reign of King Henry VII and Selected Works, ed. Brian Vickers
(Cambridge: Cambridge University Press, 1998), 64. Vickers notes that Bacon had in mind Solon and Lycurgus for
the ancient legislators.
54
On Coke’s reading and use of Ciceronian rhetoric and political philosophy, see Allen D. Boyer, “Sir
Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law Tradition,” International Journal for the
Semiotics of Law 10, no. 28 (1997): 3–36.
194
describes aphorisms as the key to building legal uncertainty and ceasing debate. The “best
law…leaves the least to the discretion of the judge” (aph. 46). This is the paradox contained in
Bacon’s aphoristic theory: the talk of liberating the mind from the imprisonment of Ramist
“method” and the equally strong directive to arrest the flight of imagination by bringing it back
to the “certainty” of law. At times, his theory sounds deceptively postmodern; it is as if his
writing leads us straight to the open, indeterminate, cut-up text. And at other times, his theory
evokes a recognizably traditional understanding of aphorisms. I argue it is important to hold both
of these readings in mind. Furthermore, it is only by considering both that we may discern the
paradox in the theory of popular jurisprudence.
In theorizing the ability of every person to understand justice, through conscience, natural
reason, and moral passion, the authors previously studied assume justice to be a static,
unchanging, and fixed thing. Although that logic of jurisprudence establishes the conditions for
lay legal commentary, on another level, it undermines the very notion of debate. For what need is
there for debate if our innate moral faculties allow us to “know” justice, a thing which endures
across time and space? The theory of universal legal wisdom, taken to the nth degree, spells the
end of legal confusion—and with it legal debate. In this last section, I explore the different
directives in Bacon’s aphoristic theory, assess how they have been interpreted by modern critics,
and use the conclusions to analyze the tension in the philosophy of popular jurisprudence.
Bacon presents the aphorism as a device which stimulates the mind to search for new
knowledge. The following passage is frequently quoted as Bacon’s standard definition:
Aphorisms, except they should be ridiculous, cannot be made but of the pith and
heart of sciences; for discourse of illustration is cut off; recitals of examples are cut
off; discourse of connexion and order is cut off; descriptions of practice are cut off;
195
so there remaineth nothing to fill the Aphorisms but some good quantity of
observation: and therefore no man can suffice, nor in reason will attempt, to write
Aphorisms, but he that is sound and grounded….Aphorisms, representing a
knowledge broken, do invite men to enquire farther; whereas Methods, carrying the
shew of a total, do secure men, as if they were at furthest.
55

According to Bacon, an aphorism’s lack of narrative (“discourse of connexion and order” and
“descriptions”) helps to liberate the imagination. Bacon elaborates this notion in Maxims of the
Law, arguing that maxims turn readers from passive receptors of knowledge to active co-authors
of meaning:
this delivering of knowledge in distinct and disjoined aphorisms doth leave the wit of
man more free to turn and toss, and to make use of that which is so delivered to more
several purposes and applications.
56

Bacon’s invitation to readers to “make use” of legal aphorisms to aid their “several purposes and
applications” seems to legitimize the act of individual interpretation. This is the view which is
consistently maintained within modern criticism.
In their assessment of Bacon’s theory, modern readers have tended to reinforce Bacon’s
emancipatory rhetoric. For example, Brian Vickers echoes Bacon’s language of “freedom,”
stating that Bacon’s aphorisms display “flexibility and freedom from system” (here “system”
refers to Ramist dialectics).
57
Concurring, Lisa Jardine observes that Bacon purposefully
positioned his aphorisms as an alternative to the Ramist method, which is a “dichotomising” and
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
55
Bacon, Works 3:405.
56
Bacon, Maxims, in Works, 7:321.
57
Brian Vickers, Francis Bacon and Renaissance Prose (Cambridge: Cambridge University Press, 1968),
67.
196
“magisterial style” working “to impose…conclusions on the reader.”
58
Both critics are drawing
on Ramus’s explanation of his method in Training in Dialectic (1546):
Method is the arrangement of many good arguments…The method of teaching,
therefore, is the arrangement of various things brought down from universal and
general principles to the underlying singular parts, by which arrangement the whole
matter can be more easily taught and apprehended. In such method, this alone has to
be prescribed: that in teaching the general and universal explanations precede, such
as the definition and a kind of general summary; after which follows the special
explanation by distribution of the parts; last of all comes the definition of the singular
parts and clarification by means of suitable examples.
59

For Ramus, the discovery of knowledge lay in the division of general principles or “universal
explanations” into two “parts,” and the splitting of these parts into “singular parts,” and so on.
This dialectical method enables one to uncover every inch of a topic. Taking a different tack,
Bacon espoused “unordered division” of information which
conveys the impression that there is further material to be investigated…since no
context is provided for each observation compressed into aphoristic form, the reader
is at liberty to test its applicability in a variety of fields, and to explore not only its
immediate consequences, but all its possible ramifications.
60

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
58
Lisa Jardine, Francis Bacon: Discovery and the Art of Discourse (Cambridge: Cambridge University
Press, 1974), 176.
59
Peter Ramus qtd. in Walter J. Ong, Ramus, Method, and the Decline of Dialogue: From the Art of
Discourse to the Art of Reason (Chicago: University of Chicago Press, 2004), 245. Ong explains that Ramus sought
to apply dialectics to every “art or curriculum,” essentially to “divide it into two ‘parts,’ redefine each part,
subdivide the parts each into two more ‘parts,’ and so on until he reached the atomic particles which admitted no
further halving” (32). The two-part division of Ramus produced “huge bracketed Ramist tables” (64).
60
Jardine, Francis Bacon, 176–77.
197
In short, the intentionally fragmentary nature of Bacon’s aphorisms propels the mind to be “at
liberty.” James Stephens explains that Bacon’s “aphorism…functions first as a vehicle for the
discovery and communication of truth or possibility in its barest form.”
61
Wendy Olmsted
compares Bacon’s analysis of aphorisms to Cicero’s topoi and Aristotle’s enthymeme.
62
Like
topics, aphorisms “simulate inquiry and the growth of knowledge.”
63
Stephen Clucas’s recent
analysis of Bacon’s aphorisms productively complicates this discussion. Clucas observes an
inconsistency between Bacon’s description of aphorisms in his moral and scientific treatises. In
moral treatises, Bacon emphasizes the “authority” of aphorism as a “hortative and dogmatic
device.”
64
However, in his scientific writing, Bacon “unmake[s] the aphoristic tradition…as a
non-dogmatic and initiative form of language.”
65

With the exception of Clucas, critics tend to subscribe to the emancipatory directive in
Bacon’s aphoristic theory. Aphorisms inspire the imagination to roam, explore, invent, and
create new knowledge. Yet, as Clucas reminds us, aphorisms were often used in this period to
convey dogma. So I propose that Bacon’s aphoristic theory contains another directive which is
less concerned with freeing the imagination and more with tying it to “certainty.” Bacon
intimates that if principles of justice and equity could be reduced to a clear system, then legal
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
61
James Stephens, Francis Bacon and the Style of Science (Chicago: University of Chicago Press, 1975),
101.
62
Wendy Olmsted compares Bacon’s aphorisms to not only Ciceronian topics but also to Aristotelian
enthymemes: “The use of the word ‘pointers’ in Aphorism 8 recalls Cicero's emphasis on topics as signs that point
to facts and arguments in particular situations without naming what they will be. Bacon’s method of bringing a
general (gathered from past acquaintance with particulars) into relation with a new particular also recalls Aristotle's
use of the enthymeme to find facts and arguments in particular situations (Rhetoric: An Historical Introduction
[Malden, MA: Blackwell, 2006], 70).
63
Ibid.
64
Stephen Clucas, “A Knowledge Broken: Francis Bacon’s Aphoristic Style and the Crisis of Scholastic
and Humanistic Knowledge Systems,” in English Renaissance Prose: History, Language and Politics, ed. Neil
Rhodes (Tempe: Medieval & Renaissance Texts & Studies, 1997), 153.
65
Ibid. Clucas adds that Bacon “sees the aphorism serving a scientific epistemological function, a function
which reverses the authority and closure which often attends the aphoristic in the Renaissance” (152).
198
guesswork (including judicial “discretion”) would evaporate. Bacon argues that legal aphorisms
have the potential to convey the principles of justice and equity to all people: judges, counselors,
lawyers, and ordinary persons. What is unspoken yet assumed here is a Platonic understanding of
justice as an immutable form. Justice does not evolve—unlike the laws of man. Because the
same principles of justice and equity exist across time and in all civil societies, they may be
extracted (and abstracted) through inductive reasoning or “right reason.” They may then be
assembled into a code or a digest containing a finite number of rules. These rules or aphorisms
may be committed to memory, like the Decalogue. The reformation of legal knowledge
culminates in the erasure of mass confusion and individual “discretion.” In a truly reformed state
of knowledge, the very act of legal interpretation would prove obsolete because the written law
would perfectly reflect the eternal and unchanging law.
Bacon’s aphoristic theory begins to take a more familiar form, less postmodern and more
early modern. To Bacon’s readers, aphorisms (and maxims) evoked incontestable knowledge.
Their understanding was based on classical rhetorical theory. In Rhetoric, Aristotle defines
aphorism as “an assertion…of a general sort.”
66
Along with proverbs and ancient verse,
aphorisms make up the entirety of “ancient” testimony.
67
Ancient testimony outweighs “recent”
testimony (that is, verbal reportage or testimony by living persons) because the opinion of the
latter can prove to be unreliable. Living witnesses are “not [competent] witnesses of the quality
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
66
Aristotle, On Rhetoric: A Theory of Civic Discourse, trans. George A. Kennedy (New York: Oxford
University Press, 1991), 2.21.2.
67
For a further discussion of testimony in classical and Renaissance traditions, see Richard Serjeantson,
“Testimony,” in Renaissance Figures of Speech, ed. Sylvia Adamson, Gavin Alexander, and Katrin Ettenhuber
(Cambridge: Cambridge University Press, 2007), 179–94; Barbara J. Shapiro, “Testimony in Seventeenth-Century
English Natural Philosophy: Legal Origins and Early Development,” Studies in History and Philosophy of Science
33 (2002): 243–63; Richard Serjeantson, “Testimony and Proof in Early-Modern England,” Studies in History and
Philosophy of Science 30, no. 2 (1999): 195–236.
199
of the act—of whether, for example, it was just or unjust.”
68
Aristotle’s reflections informed
Roman rhetoric. In the popular treatise Rhetorica ad Herennium, the author calls the aphorism a
“saying drawn from life, which shows concisely either what happens or ought to happen in
life.”
69
Aphthonius, whose rhetorical exercises greatly shaped the curriculum of Medieval and
Renaissance grammar schools, describes the aphorism as a “summary statement, in declarative
sentences, urging or dissuading something.”
70
According to these ancient authors, aphorisms
represent general statements about human life drawn from the bank of collective human memory
and experience. Aphorisms, maxims, proverbs, and literature represent certain, unadulterated
knowledge.
Renaissance authors embraced the classical definitions as evidenced in the popular
students’ religious manual Aphorismes of Christian religion or, a verie compendious
abridgement of M. I. Calvins Institutions, set forth in short sentences methodically by M. I.
Piscator: And now Englished according to the Authors third and last edition, by H. Holland
(1596). As the full title explains, the book is Henry Holland’s English translation of Johann
Piscator’s “short sentences” (aphorisms) of Jean Calvin’s Institutes.
71
Three prefaces frame the
main text; each reflects on the nature of aphorisms. Holland’s “Epistle Dedicatorie,” the first of
the prefaces, states, “this little treatise…will give the willing mind in a very small time a
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
68
Ibid., 1.15.15.
69
[Cicero], Rhetorica Ad Herennium, trans. Harry Caplan (Cambridge, MA: Harvard University Press,
1954), 4.17.24.
70
Aphthonius, “The Preliminary Exercises of Aphthonius the Sophist,” in Progymnasmata: Greek
Textbooks of Prose Composition and Rhetoric, ed. George A. Kennedy (Leiden: Brill, 2003), 99.
71
“[Piscator’s] Aphorismi doctrinae Christianae maximam partem ex Institutione Calvini excerpti sive loci
communes theologici (Herborn, 1589) was…compiled for convenience in student discussions, and was soon in such
demand that by 1615 it was in its eighth edition” (“Introduction,” in Jean Calvin, Institutes of the Christian Religion,
ed. John T. McNeill, trans. Ford Lewis Battles, vol. 1 [Louisville, KY: Westminster John Knox Press, 1960], xlix).
200
synopsis or short view of the whole bodie of Gods holy truth.”
72
In the next preface, “To the
Reader,” Holland announces,
It was not the authors meaning, nor my desires to make any man negligent, in
perusing the great worke it selfe [i.e. Calvin’s Institutes], but rather to excite and
helpe slow wits to search into the fountaine, whence these small braunches are
derived. Let this little booke be therfore unto thee, but as a methodicall index, to
helpe and confirme memorie.
73

Finally, we hear from Piscator:
For these short Aphorismes containe the chiefe points of Christian Religion barely
propounded, much like a withered body, or certaine jointes and bones without
skinne, flesh or synewes…these bones be but bare, yet are they bones, that is, firme
and solid things indeede, which neither want good synewes, nor juice and marrow of
heavenly doctrine in them.
74

Holland and Piscator’s definitions are two sides of the same coin. Holland calls aphorism a
“methodicall index” which “confirme[s] memorie.” That assessment emphasizes the aphorisms’
role in grounding the mind in what Piscator calls true wisdom, the “Chiefe points of Christian
Religion.” Piscator’s simile of “firme and solid” “bare…bones” confirms the aphorism’s status
as knowledge which outlasts the “flesh” of fashion. Whereas other rhetorical devices (such as
examples or illustrations), like “synewes,” “juice,” and “marrow,” alter to reflect the discourse of
the moment, aphoristic knowledge remains true from epoch to epoch.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
72
Johann Piscator, Aphorismes of Christian Religion: Or, a Verie Compendious Abridgement of M. I.
Calvins Institutions, Set Forth in Short Sentences Methodically by M. I. Piscator: And Now Englished according to
the Authors Third and Last Edition, by H. Holland, trans. Henry Holland (London, 1596), Sig. *iijv.
73
Ibid., Sig. Ar–Av.
74
Ibid., Sig. A[5]v–A[6]r. Piscator emphasizes that it is not his intention to “withdraw any man from the
authors [i.e. Calvin’s] worke: but rather to give an easie introduction therunto, and to winne, and to excite such as
fauour holy Religion, the more to embrace that worke” (ibid., Sig. [A6]r).
201
The genre of the essay is the opposite of the aphorism. According to Ben Jonson, the
essay is one of the least sophisticated literary forms. Essayists are in the business of
disseminating half-baked opinions which are “raw,” “undigested,” and “without choice”:
Some, that turn over all books, and are equally searching in all papers, that write out
of what they presently find or meet, without choice; by which means it happens, that
what they have discredited, and impugned in one work, they have before, or after,
extolled the same in another. Such are all the essayists, even their master Montaigne.
These, in all they write, confess still what books they have read last; and therein their
own folly, so much, that they bring it to the stake raw, and undigested: not that the
place did need it neither; but that they thought themselves furnished, and would vent
it.
75

In contrast, aphorism presents “digested” knowledge. Aphorisms display the erudition of the
author. They reveal the author’s ability to reduce a whole work to its essential parts. Aphorisms
bespeak the author’s discrimination, experience, and critical understanding of solid, eternal
truths.
This brief exploration of early modern definitions of aphorisms sheds light on the
conservatism in Bacon’s theory of aphorisms. Bacon reminds readers that his use of legal
aphorisms conforms to the example of ancient authors. The aphorisms of Solomon, Bacon
reminds readers, “sprin[g] from the inmost recesses of wisdom and exten[d] to much variety of
occasions.”
76
His reflection aligns with the opinions of other early modern authors. Why do
critics bypass the conventional side of Bacon’s aphoristic theory? Perhaps the elision speaks to
critics’ investment in the idea of the “free” text.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
75
Ben Jonson, Explorata: Or Discoveries, in The Complete Poems, ed. George Parfitt (London: Penguin,
1996), 396 (ll. 890–903).
76
Bacon, The Works of Francis Bacon, 5:36.
202
Let us situate the critical reception historically. Many of the critics quoted earlier
published their reflections during and after the arrival of French post-structuralism, which
emphasized the indeterminacy of language and the “openness” of texts. In his 1961 essay on La
Rochefoucauld’s maxims, Roland Barthes states that some maxims are “kind” and others
“mean,” some “formally free”—like “free verse”—and others limited by “structure.”
77
For
Barthes, the “free” maxims (in La Rochefoucauld’s collection) are not really “maxims” at all but
“Reflections,” which Barthes defines as “fragments of discourse, texts without structure, without
spectacle” (original emphasis). It is clear where Barthes’s intellectual sympathies lie: with the
maxims which outgrow their original meter to become “maxims-as-discourse.”
78
This essay
precedes Barthes’s famous distinction between the “writerly” and “readerly” text. In the
introduction to his analysis of the “starred” text, Balzac’s Sarrasine, Barthes states that
The writerly text is a perpetual present, upon which no consequent language (which
would inevitably make it past) can be super-imposed; the writerly text is ourselves
writing, before the infinite play of the world (the world as function) is traversed,
intersected, stopped, plasticized by some singular system (Ideology, Genus,
Criticism) which reduces the plurality of entrances, the opening of networks, the
infinity of languages.
79

Quite in keeping with his interest in “infinite play,” Barthes’s critical language achieves the flow
one might associate with free-verse. For him, the “writerly text” initiates the imagination. This
text makes the reading process a kind of writing: “ourselves writing.” In contrast, the “readerly”
text, which Barthes defines as a “classic text”—for example, La Rochefoucauld’s “closed”
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
77
Roland Barthes, “La Rochefoucauld: ‘Reflections or Sentences and Maxims,’” in New Critical Essays,
trans. Richard Howard (New York: Hill and Wang, 1980), 5.
78
Ibid.
79
Roland Barthes, S/Z: An Essay, trans. Richard Miller (New York: Hill and Wang, 1974), 5 (original
emphasis).
203
maxims—maintains a “pitiless divorce,” invented and maintained by the “literary institution,”
“between the producer of the text and its user, between its owner and its customer, between its
author and its reader.”
80

Bacon’s aphoristic theory contains contradictions. Recognizing this allows us to reflect
on the vexed nature of the phenomenon of popular jurisprudence. Like the popular authors
studied in previous chapters, Bacon conceived of justice as an eternal form. Like divine
knowledge, justice was perfect and unchanging. If legal writing could be reformed in the manner
he proposed for “disclosing” the “mysteries of the laws,” then the people would be able to
flourish (achieve “happiness”) because they would have an understanding of justice. They would
understand not only laws but justice itself. Thus, Bacon’s theory contains a promise of universal
legal enfranchisement. Yet his participatory rhetoric is shadowed by a deep distrust of legal
interpretation. In Bacon’s imaginary, utopian nation, the law is so manifest that it cannot be
debated. The tension discoverable in Bacon’s aphoristic theory exemplifies a troubling aspect of
the theory of popular jurisprudence at large.
The theory establishes the cultural conditions for lay commentary and interpretation. But
the notion of “universal justice” contains imperialistic impulses: to subsume “heterodox”
jurisprudences into its own “true” jurisprudence. In this way, the theory of popular jurisprudence
envisions a world curiously devoid of variety. Does popular jurisprudence foreshadow the
discourse of human rights of the enlightenment? Outwardly, there are similarities. But when the
theory is closely studied, and its contradictions sighted and analyzed, it has to be concluded that
popular jurisprudence is not a simple prototype for the idea of democratic rights. The idea of
universal jurisprudence (that justice could be intelligible to individuals through their faculty of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
80
Ibid., 4.
204
conscience or natural reason) does not converge with the revolutionary literature of later
centuries.!
205
Conclusion
*

The late sixteenth century has been called the “first period of significant growth” for the
Inns of Court.
1
Selecting legal expertise as the main criterion for legal wisdom, lawyers not
only distinguished their legal knowledge from “sundry ignorant men” (solicitors, scriveners,
and other members of the “lower” branch of the legal profession) but also from the general
population of non-professionals.
2
The non-expert group included the aristocracy, clergy,
middling, and poorer sorts. The professional bias comes through loud and clear in Coke’s
complaint of the perseverance of “men unlearned” in the law:
If you observe any diversities of oppinions amongest the professors of the Lawes,
contende you (as it behoveth) to be learned in your profession, and you shall finde,
that it is Hominis vitium, non professionis [it is men who err not the profession]:
And to say the trueth, the greatest questions arryse not upon any of the Rules of the
Common Law, but sometimes uppon Conveyances and Instruments made by men
unlearned; Many times upon Willes intricately, absurdly, and repugnantly set
downe, by Parsons, Scriveners, and such other Imperites: And oftentimes upon
Actes of Parliament, overladen wyth provisoes, and addicions, and many times on a
suddein penned or corrected by men of none or verie little judgement in Law.
3

What is striking about this passage is how Coke tries to deny “Parsons,” “Scriveners,” and
other “imperites” (defined in the OED as an unskilled or ignorant person) the possibility of
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
Louis A. Knafla, “The Matriculation Revolution and Education at the Inns of Court in Renaissance
England,” in Tudor Men and Institutions, ed. Arthur Slavin (Baton Rouge, LA: Louisiana State University Press,
1972), 236.
2
William Sheppard, The Touch-Stone of Common Assurances. Or, A Plain and Familiar Treatise,
Opening the Learning of the Common Assurances or Conveyances of the Kingdome (London: Printed by M. F. for
W. Lee, M. Walbancke, D. Pakeman, and G. Bedell, 1648), Sig. A3v.
3
Edward Coke, Le Second Part Des Reportes Del Edward Coke (London, 1602), Sig. [¶5]r–v .
206
carrying out serious legal work even as he reveals the extent of their legal work. These men, it
seems, are critical to the performance of everyday commerce, specifically in the transfer of
land and property (“Conveyances” and “Willes”). The last part of the passage also hints at the
ghostly presence of other kinds of people doing law: “men of none or verie little judgement in
Law” who “pen” and “correct” parliamentary acts. Does Coke here implicate parliamentary
clerks? Or members of parliament themselves? We recall that not all politicians trained as
lawyers; they would have been educated but lacked what Coke would have considered to be
sufficient expertise in the law. Coke’s pique against lay legal “meddling” resurfaces in his
conflict with James I. In time, and after the consolidation of the common law profession in the
seventeenth and eighteenth centuries, Coke’s prejudice against lay legal learning becomes
untethered from historical context: it becomes a matter of fact.
In early modern England, common lawyers worked hard to impose a set of professional
criteria on jurisprudential knowledge. They measured legal knowledge by how many years a
man had spent studying the law, how many cases he had won. Legal expertise for lawyers was
signaled through the publication of a legal treatise or commentary. The book was treated as the
physical embodiment of the lawyers’ learning. As the history of legal publishing attests,
lawyers were among the first pre-modern professionals to exploit print in the accumulation of
social capital.
Coke and others conditioned subsequent generations to view jurisprudence as a “secret”
knowledge accessible only to the “professors of law.” Yet, at the time, such assertions of
institutional epistemological superiority stimulated writers outside of the professional realm to
defend the legitimacy of lay legal knowledge. Speaking primarily on behalf of and towards a
literate (but mostly non-professional audience), these writers portrayed legal knowledge as the
207
product of religious and moral feeling. We find evidence of this impulse towards popular
jurisprudence in a variety of popular genres: drama, verse, sermon, moral essay, to name a few.
These texts provided readers a logic of inclusivity with which they could use to justify their
own legal authority and knowledge. When people found themselves in a legal bind, or when
they were pressed to explain the grounds for their legal opinion, they could evoke the idea of
legal learning as “wisdom in law.” They could emphasize their ability to discern “true” justice
through the faculty of natural reason or conscience, a faculty of moral apprehension divinely
implanted in the heart and accessible to all. They could insist that book learning and practical
experience did not, and should not, comprise the entirety of jurisprudence.
In 1610, the antiquarian William Camden observed that the “states and degrees of
England consisteth, of a King or Monarch, Noblemen or Gentry, Citizens, Free-borne, whom
we call, Yeomen, and Artisans or Handicraftsmen.”
4
Camden’s division of the “degrees”
reflects a traditional division of class and power. But this scheme does not account for the rise
of the professional class. Where did lawyers fit? Somewhere between noblemen and gentry?
Above them? Above the monarch, even? Did their specialized “sacred” knowledge of the law
grant them highest place in the chain of beings? These are the kinds of questions which sparked
debate among early modern social, political, and religious commentators.
While it is true that common law ideas and language were widely reflected in English
literary culture, the familiarity (personal and intellectual) between lawyers and dramatists and
other literary authors did not preclude debate. As Richard Strier observes in a recent article
examining Shakespeare’s representation of the law, “one of the great advantages that literary
texts have over others is that literary texts—unlike, for instance, legal ones—do not have to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
4
William Camden, Britain, or a Chorographicall Description of the Most Flourishing Kingdomes,
England, Scotland, and Ireland, and the Llands Adioyning, trans. Philemon Holland (London, 1610), Sig. O2r.
208
resolve the problems that they raise; they just have to raise them in interesting and provocative
ways.”
5
The “advantage” of which Strier speaks is the capacity of Shakespearean drama to
evoke the voices of multiple communities, multiple cultures, and subcultures. Andrew Zurcher
further cautions that while Shakespeare’s plays typically evoke the “dominant discourse of the
day” (as determined by professional legal authors such as “Plowden, Coke, Bacon, and
Selden”) concerning “fundamental questions of right and wrong, redress and punishment,” the
plays also exceed the parameters set by professional legal writing.
6
For Zurcher, Shakespeare
was, foremost, a critic who modeled the art of criticism, which is also the art of judgment: “the
Greek verb krinein means ‘to judge,’ and a kritēs is a judge. Hence criticism is called criticism,
and a critic a critic—that is, a critic’s criticism is a kind of judgment, and the action of
criticizing is judging.”
7
Finally, Mark Fortier, concluding his analysis of equity in The
Merchant of Venice, comments that the play is more invested in “unraveling ideological
naivetés about law and equity” than in perpetuating legal doctrine.
These are perspectives which resonate with my own understanding of the representation
of law in Shakespearean drama, indeed, in imaginative literature at large. I argue that popular
legal literature advanced legal pluralism. In my reading, literary authors display an omnivorous
appetite in their manipulation of legal philosophy. They cull maxims and arguments from
natural law, civil law, and common law traditions. They combine them without necessarily
respecting their boundaries or differences. Popular vernacular literature hence operates as a site
of legal pluralism, and literary writers are fully immersed in, yet wryly skeptical of, multiple
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
5
Richard Strier, “Shakespeare and Legal Systems: The Better the Worse (But Not Vice Versa),” in
Shakespeare and the Law, ed. Bradin Cormack, Martha Nussbaum, and Richard Strier (Chicago: University of
Chicago Press, 2013), 174.
6
Andrew Zurcher, Shakespeare and Law (London: Methuen, 2010), 35.
7
Ibid., 2.
209
legal traditions. The experimental nature of popular literature is exemplified in the writing of
jurisprudence.
The story of popular jurisprudence told here is not primarily concerned with the
intellectual output of “elite” authors: humanists and jurists whose works are available to
modern readers through critical editions, packed with commentary and bibliography,
paratextual devices which affirm the texts’ monumental status. Instead, the story comes out of
an exploration of the works of authors who occupy a middle realm between the eloquent few,
the elites, and the silent majority, the people themselves. The authors I have been concerned
with often make ends meet by writing for a commercial audience, but they also aspire for the
economic security which aristocratic or royal patronage promises. These authors give voice to
common complaints about the English legal system, particularly the phenomena of legal
liminality and judicial corruption. They advance populist notions of justice, including the idea
that every person has a God-given ability to do the law. By modeling for audiences the proper
emotional responses to specific legal situations, writers of imaginative literature present their
works as essential tools for honing legal wisdom. They position literature as being a vital
helpmate to the law, at least, the law as it could or ought to be. Literature teaches audiences to
practice methods of investigation, pleading, mediation, and judgment which reflect “poetic
justice.”
By shifting focus away from elite writers to popular ones, or ones who write for a
popular audience, the project explores the nature of popular legal culture and literature more
rigorously than previously published studies in Law and Literature. Whereas professional legal
writing locates legal work squarely within formal legal spaces (courtrooms), popular
vernacular literature imagines justice occurring in non-traditional legal spaces—private houses
210
or public marketplaces—which by their very nature solicits the participation of laypeople in the
law. Popular legal literature exploits the tension between law and justice, lex and jus and it
almost always argues that law is that which happens in the courtroom, a tightly controlled
environment in which non-professionals have little or no chance to speak, while justice is what
happens “out there.”
What is at stake for scholars? What might historians take away from reading popular
literature that they could not learn from an analysis of legal documents, such as indictments,
depositions, or judgments? I propose that reading imaginative texts helps us to fill the gap
between popular opinion and recorded fact. Court documents (in the English context at least)
often provide only the bare facts of the case. They represent perhaps a fraction of what people
did say in court; they hardly get at what people said amongst themselves outside of the legal
space. To access popular legal culture, then, we need to read literature—not only genres which
have long been the focus of literary criticism (drama, for example), but also genres whose
literary status have been debated. Two genres, in particular, advance my analysis: assize
sermons and crime pamphlets. These genres, I have argued, are unquestionably literary.
Ultimately, the study of popular vernacular literature is not an exercise in bibliographic
work: expanding current knowledge about texts and genres which have lay forgotten because
of the passage of time, changing literary tastes, or the formation of the canon. The payoff lies
in understanding how literature thrives as the counterpart to the law, and how a legal system—
even one such as the common law which justifies its legitimacy on the notion of common
practice, knowledge, and participation—looks to literature for a more ethical, moral
understanding of poetic justice. Long before modern scholars discovered the interplay of Law
and Literature, the early moderns embodied that dualism to the hilt.
211
PRIMARY SOURCES

Manuscript

Bacon, Francis. “A Charge.” N.d. British Library. Harl. MS 583. Print.
Caesar, Julius. Commonplace Book. 1600. British Library. Add. MS 6038. Print.
Closse, George. A Looking Glasse for Lawers, & Lawiers. A Sermon Preached before the
Judges of Assize for the Countie of Devon. 1603. Lambeth Palace Library. MS 113.
Print.
Dodderidge, John. “Le Charge al grand Jury apud Reading Termino Mich.” 1625. British
Library. Harl. MS 583. Print.
---. “His Charge to the Grand Inquest of Middlesex.” 1620. British Library. Harl. MS 583.
Print.
Fella, Thomas. “A Booke of Diverse Devices and Sorts of Pictures with the Alphabets of
Letters.” 1585-1622 1585. Folger Shakespeare Library. MS V.a.311.
http://luna.folger.edu. Online.
Trevelyon, Thomas. “Miscellany.” 1608. Folger Shakespeare Library. MS V.b.232.
http://luna.folger.edu. Online.
Yelverton, Christopher (?). Notes of Sermons. 1592-1621. British Library. Add. MS 48016.
Print.

Printed

Abbot, Robert. A Hand of Fellowship, to Helpe Keepe out Sinne and Antichrist. In Certaine
Sermons Preached upon Severall Occasions. London, 1623. Print.
Acts and Ordinances of the Interregnum, 1642-1660. Ed. C.H. Firth and R.S. Rait. 3 Vols.
London, 1911. www.british-history.ac.uk. Online.
Aphthonius. “The Preliminary Exercises of Aphthonius the Sophist.” Progymnasmata: Greek
Textbooks of Prose Composition and Rhetoric. Ed. George A. Kennedy. Leiden: Brill,
2003. 89–127. Print.
Aquinas, Thomas, Saint. Summa Theologiae. Ed. Brian Davies. Cambridge: Cambridge
University Press, 2006. Print.
Arden of Faversham. Ed. Martin White. London: Norton, 1982. Print.
Aristotle. The Nicomachean Ethics. Trans. H. Rackham. Cambridge, MA: Harvard University
Press, 1926. Print.
---. On Rhetoric: A Theory of Civic Discourse. Trans. George A. Kennedy. New York: Oxford
University Press, 1991. Print.
---. The Poetics. Trans. W. Rhys Roberts and W. Hamilton Fyfe. London: Heinemann, 1927.
Print.
---. Poetics. Aristotle: Poetics. Longinus: On the Sublime. Demetrius: On Style. Trans.
Stephen Halliwell. Cambridge: Harvard University Press, 1995. 1–141. Print.
Bacon, Francis. The Advancement of Learning. Francis Bacon: The Major Works. Ed. Brian
Vickers. Oxford: Oxford University Press, 2002. 120–299. Print.
---. “Advice to the Earl of Rutland on His Travels.” The Major Works. Ed. Brian Vickers.
Oxford: Oxford University Press, 2002. 69–80. Print.
---. The Elements of the Common Lawes of England. London, 1630. Print.
212
---. The Essayes or Counsels, Civill and Morall. Ed. Michael Kiernan. Oxford: Clarendon,
2000. Print.
---. Gesta Grayorum. London, 1688. Print.
---. The History of the Reign of King Henry VII and Selected Works. Ed. Brian Vickers.
Cambridge: Cambridge University Press, 1998. Print.
---. “Letter to Lord Burghley.” The Major Works. Ed. Brian Vickers. Oxford: Oxford
University Press, 2002. 20–21. Print.
---. The Letters and the Life of Francis Bacon Including All His Occasional Works. Ed. James
Spedding. Vol. 6. London: Longman, 1872. Repr. Stuttgart-bad Cannstatt: Holzboog,
1963. Print.
--- (Attributed). A Letter Written out of England to an English Gentleman Remaining at Padua,
Containing a True Report of a Strange Conspiracie, Contrived Betweene Edward
Squire, Lately Executed for the Same Treason as Actor, and Richard Wallpoole a
Jesuite, as Deviser and Suborner against the Person of the Queenes Majestie. London,
1599. Print.
---. The Works of Francis Bacon. Ed. James Spedding, Robert Leslie Ellis, and Douglas Denon
Heath. Vol. 5. London: Longman, 1858. Print.
---. The Works of Francis Bacon. Ed. James Spedding, Robert Leslie Ellis, and Douglas Denon
Heath. Vol. 7. London: Longman, 1861. Repr. Stuttgart-bad Cannstatt: Holzboog, 1963.
Print.
Barnes, Barnabe. Four Bookes of Offices: Enabling Privat Persons for the Speciall Service of
All Good Princes and Policies. London, 1606. Print.
Blackwell, Elidad. A Caveat for Magistrates in a Sermon, Preached at Pauls before the Right
Honorable Thomas Atkin, Esquire, Lord Major of the City of London, November the
Third, 1644, Being the First Day of His Coming Thither after His Entrance upon His
Majoralty. London, 1645. Print.
Blount, Thomas. Glossographia. London, 1656. LEME (Lexicons of Early Modern English).
Ed. Ian Lancashire. Toronto: University of Toronto Library and University of Toronto
Press, 2011. www.leme.library.utoronto.ca. Online.
Bolton, Robert. Mr. Boltons Last and Learned Worke of the Foure Last Things, Death,
Judgement, Hell, and Heaven. With His Assise Sermons, and Notes on Justice Nicholls
His Funerall. Ed. Edward Bagshaw. 4th ed. London, 1639. Print.
Bright, Timothy. An Abridgement of the Actes and Monumentes. London, 1589. Print.
Buc (Buck), George. The Third Universitie of England. The Annales, or Generall Chronicle of
England, Begun First by Maister John Stow, and after Him Continued and Augmented
with Matters Forreyne, and Domestique, Auncient and Moderne, unto the Ende of This
Present Yeere 1614. by Edmond Howes, Gentleman. London, 1615. Sig. Llll5r–
Oooo6v. Print.
Burton, Robert. The Anatomy of Melancholy. Oxford, 1621. Print.
---. Anatomy of Melancholy. Oxford, 1651. Print.
C., H. The Character of an Honest Lawyer. London, 1676. Print.
Calvin, Jean. Institutes of the Christian Religion. Vol. 1: Books I.i to III.xix. Ed. John T.
McNeill. Trans. Ford Lewis Battles. Vol. 1. Philadelphia: Westminster, 1960. Print.
Camden, William. Britain, or a Chorographicall Description of the Most Flourishing
Kingdomes, England, Scotland, and Ireland, and the Llands Adioyning. Trans.
Philemon Holland. London, 1610. Print.
213
Carpenter, Richard. The Conscionable Christian: Or, The Indeuour of Saint Paul, to Haue and
Discharge a Good Conscience Alwayes towards God, and Men: Laid Open and
Applyed in Three Sermons. Preached before the Honourable Judges of the Circuit, at
Their Seuerall Assises, Holden in Chard and Taunton, for the County of Somerset.
1620. By Richard Carpenter, Doctor of Diuinity, and Pastor of Sherwell in Deuon.
London, 1623. Print.
Caxton’s Aesop. Ed. R. T. Lenaghan. Cambridge, MA: Harvard University Press, 1967. Print.
Chevreau, Urbain. L’escole Du Sage, on Le Caractere Des Vertus, & Des Vices. Paris, 1609.
Print.
Cicero. De officiis. Trans. Walter Miller. Cambridge, MA: Harvard University Press, 1913.
Print.
---. The Laws. The Republic and the Laws. Ed. Jonathan Powell and Niall Rudd. Trans. Niall
Rudd. Oxford: Oxford University Press, 2008. 98–169. Print.
Charron, Pierre de. Of Wisdom. Three Books. Trans. George Stanhope. London, 1697. Print.
---. De la Sagesse. Paris, 1607. Print.
Chaucer, Geoffrey. Troilus and Criseyde. The Riverside Chaucer. Ed. Larry D. Benson. 3rd ed.
Boston: Houghton, 1987. Print.
Coke, Edward. The First Part of the Institutes. London, 1628. Print.
---. The First Part of the Institutes of the Lawes of England or a Commentary upon Littleton.
London, 1809.
---. Le Second Part Des Reportes Del Edward Coke. London, 1602. Print.
---. Les Reports de Edward Coke. London, 1600. Print.
---. The Lord Coke His Speech and Charge. Ed. Robert Pricket. London, 1607. Print.
Cook, John. The Vindication of the Professors & Profession of the Law. London, 1646. Print.
County of Middlesex. Calendar to the Sessions Records: New Series, Volume 1. Ed. William Le
Hardy. http://www.british-history.ac.uk. Online.
Dalton, Michael. The Countrey Justice, Conteyning the Practise of the Justices of the Peace out
of Their Sessions. London, 1618. Print.
D[oddridge], J[ohn]. The Lawyers Light. London, 1629. Print.
E., T. The Lawes Resolutions of Womens Rights. London, 1632. Print.
Elyot, Thomas. The Boke Named the Gouernour. London, 1531. Print.
Erasmus, Desiderius. The Handbook of the Christian Soldier: Enchiridion Militis Christiani.
Collected Works of Erasmus: Spiritualia, Enchiridion, De Contemptu Mundi, De Vidua
Christiana. Trans. Charles Fantazzi and John W. O’Malley. Toronto: University of
Toronto Press, 1988. 1–127. Print.
The Famous Victories of Henry the Fifth. The First Part of King Henry the Fourth: Texts and
Contexts. Ed. Barbara Hodgdon. Boston: Bedford, 1997. 291–308. Print.
Fortescue, John. De Laudibus Legum Angliae. Ed. S. B. Chrimes. Cambridge: Cambridge
University Press, 1942. Print.
Foxe, John. The Unabridged Acts and Monuments Online or TAMO. Sheffield: HRI Online
Publications, 2011. http//www.johnfoxe.org. Online.
Fulbecke, William. A Direction or Preparatiue to the Study of the Lawe. London, 1600. Print.
---. A Direction or Preparative to the Study of the Lawe. Ed. T. H. Stirling. 2nd ed. London:
Clarke, 1829. Print.
Garden, Alexander. Characters and Essayes. Aberdeen, 1625. Print.
214
Garey, Samuel. Ientaculum Iudicum: Or, A Breake-Fast for the Bench: Prepared, Presented,
and Preached in Two Sacred Seruices, or Sermons, the Morning Sacrifice before the
Two Assizes: At Thetford, at Norwich: 1619. Containing Monitory Meditations, to
Execute Iustice and Law-Businesse with a Good Conscience. London, 1623. Print.
Golding, Arthur. A Briefe Discourse. A Warning for Fair Women: A Critical Edition. Ed.
Charles Dale Cannon. The Hague: Mouton, 1975. 216–233. Print.
Hall, Joseph. Characters of Vertues and Vices. In Two Bookes. London, 1608. Print.
---. Heaven Upon Earth, or Of True Peace, and Tranquillitie of Minde. London, 1606. Print.
Harris, Robert. Saint Paul’s Exercise. A Sermon Preached before the Judges at Assize. Two
Sermons: The One Preached before the Judges of Assize at Oxford. The Other to the
Universities. London, 1628. 1–26. Print.
Harrison, William. Description Of Elizabethan England. London, 1577.
www.fordham.edu/halsall/mod/1577harrison-england.asp. Online.
Henslowe, Philip. Henslowe’s Diary. Ed. R. A. Foakes. 2nd ed. Cambridge: Cambridge
University Press, 2002. Print.
Heywood, Thomas. An Apology for Actors. London, 1612. Print.
---. The Proverbs of John Heywood. Being the“Proverbes” of That Author Printed 1546. Ed.
Julian Sharman. London: Bell, 1874. Print.
---. Troia Britanica. London, 1609. Print.
Holinshed, Raphael. Chronicles of England, Scotland, and Ireland. Oxford, 2013.
www.cems.ox.ac.uk/holinshed. Online.
The Holy Bible. London, 1612. Print.
I., T. A World of Wonders. Mass of Murders. London, 1595. Print.
Institutions, or Principal Grounds of the Lawes and Statutes of England. London, 1589. Print.
Jonson, Ben. Bartholomew Fair. Works. Ed. C. H. Herford, Percy Simpson, and Evelyn
Simpson. Vol. 4. Oxford: Clarendon, 1938. 1–141. Print.
---. The Complete Poems. Ed. George Parfitt. London: Penguin, 1996. Print.
---. Explorata: Or Discoveries. The Complete Poems. Ed. George Parfitt. London: Penguin,
1996. 372–458. Print.
Justinian, and Gaius. The Institutes of Gaius and Justinian, The Twelve Tables, and the
CXVIIIth and CXXVIIth Novels. Trans. T. Lambert Mears. London: Stevens, 1882.
Print.
Lambarde, William. Archeion. London, 1635. Print.
Lodge, Thomas. Wits Misery. London, 1596. Print.
Luther, Martin. The Chiefe and Pryncypall Articles of the Christen Faythe, to Holde Againste
the Pope, and Al Papistes, and the Gates of Hell. Trans. Walter Lynne. London, 1548.
Print.
---. A Commentarie of M. Doctor Martin Luther upon the Epistle of S. Paul to the Galathians.
London, 1575. Print.
---. Luther’s Reply to King Henry VIII. Trans. E. S. Buchanan. New York: Swift, 1928. Print.
---. “Temporal Authority: To What Extent It Should Be Obeyed.” Selected Writings of Martin
Luther: 1520-1523. Ed. Theodore Tappert. Trans. J. J. Schindel and Walther I. Brandt.
Minneapolis: Fortress, 2007. 267–319. Print.
---. A Treatise, Touching the Libertie of a Christian. Trans. James Bell. London, 1579. Print.
Macey, George. A Sermon Preached at Charde in the Countie of Somerset, the Second of
March 1597. Being the First Day of the Assises There Holden. London, 1601. Print.
215
Machiavelli, Niccolò. The Prince. Ed. George Bull. Harmondsworth: Penguin, 1961. Print.
The Manner of the Cruell Outragious Murther of William Storre Mast. of Art, Minister, and
Preacher at Market Raisin in the County of Lincolne: Committed by Francis
Cartwright One of His Parishioners, the 30. Day of August Anno. 1602. Oxford, 1603.
Print.
The Manner of the Death and Execution of Arnold Cosbie, for Murthering the Lord Boorke,
Who Was Executed at Wanswoorth Townes End on the 27. of Ianuarie 1591. With
Certaine Verses Written by the Said Cosby in the Time of His Imprisonment,
Containing Matter of Great Effect, as Well Touching His Life as Also His Penitencie
before His Death. London, 1591. Print.
Marlowe, Christopher. Doctor Faustus A-Text. Doctor Faustus and Other Plays. Ed. David
Bevington and Eric Rasmussen. Oxford: Clarendon, 1995. 137–184. Print.
Melanchthon, Philip. A Fanthfull Admonycion of a Certen Trewe Pastor and Prophete / Sent
unto the Germanes at Such Tyme as Certen Great Princes Went Abowt to Bring in
Alienes in to Germany...Now Translated in to Inglyssh for a Lyte Admonycyon unto All
Trewe Inglyssh Hartes / Whereby Thei May Lerne and Knowe How to Consyder and
Receive the Procedings of the Inglyssh Magistrates and Bisshops. With a Preface of M.
Philip Melancthon. Greenwich?, 1554. Print.
Mell, George. A Proper New Balad of the Bryber Gehesie. London, 1567. Print.
Middleton, Thomas, William Rowley, (and Thomas Heywood?). An/The Old Law. The
Collected Works of Thomas Middleton. Ed. Jeffrey Masten. Oxford: Clarendon, 2007.
1335–96. Print.
Milton, John. The Riverside Milton. Ed. Roy Flannagan. Boston: Houghton, 1998. Print.
Montaigne, Michel de. The Essayes. Trans. John Florio. London, 1603. Print.
More, Thomas. Utopia. Ed. S. J. Surtz. New Haven, CT: Yale University Press, 1964. Print.
Munday, Anthony. A View of Sundry Examples. London, 1580. Print.
Musculus, Wolfgang. The Temporysour (that Is to Saye: The Observer of Tyme, or He That
Chaungeth with the Tyme.) Compyled in Latyn by the Excellent Clarke Wolfangus
Musculus, and Translated into Frenche by M. Vallerain Pullain. And out of Frenche
into Inglishe by R. D. Zurich? Geneva?, 1555. Print.
Parsons, Bartholomew. The Magistrates Charter Examined. London, 1616. Print.
Perkins, William. A Discourse of Conscience Wherein Is Set Downe the Nature, Properties,
and Differences Thereof: As Also the Way to Get and Keepe Good Conscience.
Cambridge, 1596. Print.
Philpot, John. The Trew Report of the Dysputacyon Had and Begonne in the Convocacyon
Hows at London the XXVIII Daye of Octobre MDLIIII. Emden, 1554. Print.
Piscator, Johann. Aphorismes of Christian Religion: Or, a Verie Compendious Abridgement of
M. I. Calvins Institutions, Set Forth in Short Sentences Methodically by M. I. Piscator:
And Now Englished according to the Authors Third and Last Edition, by H. Holland.
Trans. Henry Holland. London, 1596. Print.
Plato. Phaedrus. Trans. Alexander Nehemas and Paul A. Brand. Indianapolis: Hackett, 1995.
Print.
---. Republic. Trans. G. M. A. Grube. Indianapolis: Hackett, 1974. Print.
Plutarch. Greek Lives: A Selection of Nine Greek Lives. Trans. Robin Waterfield. Oxford:
Oxford University Press, 1998. Print.
216
---. The Lives of the Noble Grecians and Romaines, Compared Together by That Grave
Learned Philosopher and Historiographer, Putarke of Chæronea. Trans. Thomas
North. London, 1603. Print.
Rhetorica Ad Herennium. Trans. Harry Caplan. Cambridge, MA: Harvard University Press,
1954. Print.
Rolle, Richard. Rycharde Rolle Hermyte of Hampull in His Contemplacyons of the Drede and
Love of God with Other Dyverse Tytles as It the Weth in His Table. London, 1519.
Print.
Roy, Louis le. Of the Interchangeable Course, or Variety of Things in the Whole
world...Written in French by Loys Le Roy Called Regius: And Translated into English
by R. A. Trans. Robert Ashley. London, 1594. Print.
Shakespeare, William. Hamlet. The Complete Works. Ed. Stanley Wells and Gary Taylor. 2nd
ed. Oxford: Clarendon, 2005. 681–718. Print.
---. Hamlet. The Riverside Shakespeare. Boston: Houghton, 1974. 1135–97.
---. Henry IV, Part 1. The Riverside Shakespeare. Ed. G. Blakemore Evans. Boston: Houghton,
1974. 847-885.
---. Henry IV, Part 2. Ed. René Weis. Oxford: Clarendon, 1998. Print.
---. Henry V. The Riverside Shakespeare. Ed. G. Blakemore Evans. Boston: Houghton, 1974.
930-975. Print.
---. Macbeth. The Riverside Shakespeare. Ed. G. Blakemore Evans. Boston: Houghton, 1974.
1312-1342. Print.
---. Measure for Measure. The Riverside Shakespeare. Ed. G. Blakemore Evans. Boston:
Houghton, 1974. 550–586. Print.
---. The Merchant of Venice. The Riverside Shakespeare. Ed. G. Blakemore Evans. Boston:
Houghton, 1974. 250–285. Print.
---. Richard III. The Riverside Shakespeare. Ed. G. Blakemore Evans. Boston: Houghton,
1974. 712–764. Print.
Sheppard, William. The Touch-Stone of Common Assurances. Or, A Plain and Familiar
Treatise, Opening the Learning of the Common Assurances or Conveyances of the
Kingdome. London, 1648. Print.
Sidney, Philip. A Defence of Poetry. English Renaissance Literary Criticism. Ed. Brian
Vickers. Oxford: Clarendon, 1999. 336–391. Print.
Smith, Henry. “The Magistrates Scripture.” The Sermons of Henrie Smith, Gathered into One
Volume. Printed according to His Corrected Copies in His Life Time. London, 1593.
696–818. Print.
---. “The Magistrates’ Scripture.” The Sermons of Henry Smith: The Silver-Tongued Preacher.
Ed. John Brown. Vol. 2. Cambridge: Cambridge University Press, 1908. 102–111.
Print.
---. “A Momento for Magistrates.” The Sermons of Henry Smith: The Silver-Tongued Preacher.
Ed. John Brown. Vol. 2. Cambridge: Cambridge University Press, 1908. Print.
Smith, Samuel. The Great Assize or Day of Jubilee. London, 1617. Print.
Smith, Thomas. De Republica Anglorum. Ed. M. Dewar. Cambridge: Cambridge University
Press, 1982. Print.
Statutes of the Realm: 1547-1624. Vol. 4. London, 1819. http://heinonline.org. Online.
217
Stephens, John. “Essayes and Characters, Ironicall, and Instructive.” Books of Characters,
Illustrating the Habits and Manners of Englishmen from the Reign of James I. to the
Restoration. Ed. James O. Halliwell. London: Adlard, 1857. 131–256. Print.
Stow, John. Annales, London, 1592. Print.
Sundrye Strange and Inhumaine Murthers, Lately Committed the First of a Father That Hired
a Man to Kill Three of His Children Neere to Ashford in Kent, the Second of Master
Page of Plymouth, Murthered by the Consent of His Owne Wife!: With the Strange
Discouerie of Sundrie Other Murthers, Wherein Is Described the Odiousnesse of
Murther, with the Vengeance Which God Inflicteth on Murtherers. London, 1591. Print.
A True Report of the Late Horrible Murther Committed by William Sherwood, Prisoner in the
Queenes Benche, for the Profession of Popery, the 18. of Iune. 1581. London, 1581.
Print.
Tuke, Thomas. A Discourse against Painting and Tincturing of Women. Wherein the
Abominable Sinnes of Murther and Poysoning, Pride and Ambition, Adultery and
Witchcraft, Are Set Forth and Discouered. Whereunto Is Added The Picture of a
Picture, Or, the Character of a Painted Woman. London, 1616. Print.
Turner, William. The Huntyng of the Romyshe Wolfe. Emden, 1555. Print.
Two Notorious Murders One Committed by a Tanner on His Wiues Sonne Nere Horne-Church
in Essex, the Other on a Grasier Nere Ailsburie in Buckinghamshire!: With These Is
Intermixt Another Murdrous Intending Fellonie at Rislip in Middlesex, All Done This
Last Month. London, 1595. Print.
Ward, Samuel. Jethro’s Justice of Peace. A Sermon Preached at the Generall Assises Held at
Bury St Edmunds for the Countie of Suffolke. London, 1621. Print.
A Warning for Fair Women. Ed. Charles Dale Cannon. The Hague: Mouton, 1975. Print.
A Warning for Fair Women. Ed. Gemma Leggott. Sheffield Hallam University, 2011.
http://extra.shu.ac.uk/emls/iemls/resources.html. Online.
“The Wofull Lamentacon of Mrs. Anne Saunders, Which She Wrote with Her Own Hand,
Being Prisoner in Newgate, Justly Condemned to Death.” Old English Ballads: 1553-
1625. Ed Hyder Rollins. Cambridge: Cambridge University Press, 1920. 340–348.
Wright, Thomas. The Passions of the Minde in Generall. Corrected, Enlarged, and with
Sundry New Discourses Augmented. London, 1604. Print.
Yarrington, Robert. Two Lamentable Tragedies. Ed. John S. Farmer. London: Tudor Facsimile
Texts, 1913. Print.
A Yorkshire Tragedy. Not so New as Lamentable and True. Acted by His Maiesties Players at
the Globe. London, 1608. Print.
Younger, William. The Unrighteous Iudge: Or, Iudex Cretensis, the Iudge of Crete. A Sermon
Preached within the Iurisdiction of the Arch-Deaconry of Norwich, at a Generall
Court, in April Last Past, 16. 1621. London, 1621. Print.

SECONDARY SOURCES

Adams, Henry Hitch. English Domestic Or, Homiletic Tragedy, 1575 to 1642. New York:
Columbia University Press, 1943. Print.
Adlington, Hugh. “Restoration, Religion, and Law: Assize Sermons, 1660-1685.” The Oxford
Handbook of the Early Modern Sermon. Ed. Peter McCullough, Hugh Adlington, and
Emma Rhatigan. Oxford: Oxford University Press, 2011. 423–459. Print.
218
Ahmed, Sara. “Happy Objects.” The Affect Theory Reader. Ed. Melissa Gregg and Gregory J.
Seigworth. Durham, NC: Duke University Press, 2010. 29–51. Print.
Altman, Joel B. The Tudor Play of Mind: Rhetorical Inquiry and the Development of
Elizabethan Drama. Berkeley: University of California Press, 1978. Print.
Arber, Edward. A Transcript of the Registers of the Company of Stationers of London, 1554-
1640 A. D. Vol. 1. London, 1875. Print.
Arnold, Oliver. The Third Citizen: Shakespeare’s Theater and the Early Modern House of
Commons. Baltimore: Johns Hopkins University Press, 2007. Print.
Ash, Eric H. Power, Knowledge, and Expertise in Elizabethan England. Baltimore, MD: Johns
Hopkins University Press, 2004. Print.
Aston, Margaret, and Elizabeth Ingram. “The Iconography of the Acts and Monuments.” John
Foxe and the English Reformation. Ed. David Loades. Aldershot: Scolar, 1997. 66–142.
Print.
Atkinson, David. “Magical Corpses: Ballads, Intertextuality, and the Discovery of Murder.”
Journal of Folklore Research 36.1 (1999): 1–29. Print.
Auerbach, Erich. Mimesis: The Representation of Reality in Western Literature. Trans. Willard
K. Trask. Princeton, NJ: Princeton University Press, 1953. Print.
Bagchi, David. “Luther and the Problem of Martyrdom.” Martyrs and Martyrologies. Ed.
Diana Wood. Oxford: Blackwell, 1993. 209–219. Print.
Baildon, William Paley. The Records of the Honorable Society of Lincoln’s Inn: 1660-1775.
Vol. 3. London: Lincoln’s Inn, 1899. Print.
Baker, J. H. “English Law and the Renaissance.” Cambridge Law Journal 44.1 (1985): 46–61.
Print.
---. “English Law Books and Legal Publishing.” The Cambridge History of the Book in Britain.
Ed. John Barnard and D. F. McKenzie. Vol. 4. Cambridge: Cambridge University
Press, 2002. 474–503. Print.
---. An Introduction to English Legal History. London: Butterworths, 2002. Print.
---. The Legal Profession and the Common Law. London: Hambledon, 1986. Print.
---. “The Third University 1450-1550: Law School or Finishing School?” The Intellectual and
Cultural World of the Early Modern Inns of Court. Ed. Jane Elizabeth Archer,
Elizabeth Goldring, and Sarah Knight. Manchester: Manchester University Press, 2011.
8–24. Print.
Baker, J. Wayne. “Sola Fide, Sola Gratia: The Battle for Luther in Seventeenth-Century
England.” The Sixteenth Century Journal 16.1 (1985): 115–133. Print.
Barber, C. L. “The Trial of Carnival in Part 2.” William Shakespeare’s Henry IV, Part 2. Ed.
Harold Bloom. New York: Chelsea House Publishers, 1987. 21–28. Print. Modern
Critical Interpretations.
Barish, Jonas B. The Antitheatrical Prejudice. Berkeley, CA: University of California Press,
1981. Print.
Barthes, Roland. “La Rochefoucauld: ‘Reflections or Sentences and Maxims.’” New Critical
Essays. Trans. Richard Howard. New York: Hill and Wang, 1980. 3–22. Print.
---. S/Z: An Essay. Trans. Richard Miller. New York: Hill and Wang, 1974. Print.
Baskerville, Edward J. A Chronological Bibliography of Propaganda and Polemic Published
in England between 1553 and 1558: From the Death of Edward VI to the Death of
Mary I. Philadelphia: American Philosophical Society, 1979. Print.
219
Bate, Jonathan. Soul of the Age: A Biography of the Mind of William Shakespeare. Random,
2009. Print.
Bellamy, John G. Strange, Inhuman Deaths: Murder in Tudor England. Westport: Praeger,
2005. Print.
Berman, Harold J. Law and Revolution II: The Impact of the Protestant Reformations on the
Western Legal Tradition. Cambridge, MA: Harvard University Press, 2003. Print.
---. “The Origins of Historical Jurisprudence: Coke, Selden, Hale.” Yale Law Journal 103.7
(1994): 1651–1738. Print.
Bland, D. S. “Rhetoric and the Law Student in Sixteenth-Century England.” Studies in
Philology 54 (1957): 498–508. Print.
Blanpied, John W. “Henry IV, Part 2: ‘Unfathered Heirs and Loathly Births of Nature.’”
William Shakespeare’s Henry IV, Part 2. Ed. Harold Bloom. New York: Chelsea
House Publishers, 1987. 85–103. Print.
Blanshard, Alastair J. L., and Tracey A. Sowerby. “Thomas Wilson’s Demosthenes and the
Politics of Tudor Translation.” International Journal of the Classical Tradition 12.1
(2005): 46–80. Print.
Bourdieu, Pierre. “The Force of Law: Towards a Sociology of the Juridical Field.” Hastings
Law Journal 38 (1986): 805–53. Print.
Borge, Francisco J.“‘We (Upon Peril of My Life) Shall Make the Spaniard Ridiculous to All
Europe’: Richard Hakluyt’s ‘Discourse’ of Spain.” Richard Hakluyt and Travel Writing
in Early Modern Europe. Ed. Daniel Carey and Claire Jowitt. Farnham: Ashgate, 2012.
167-176. Print.
Boyer, Allen D. “Sir Edward Coke, Ciceronianus: Classical Rhetoric and the Common Law
Tradition.” International Journal for the Semiotics of Law 10.28 (1997): 3–36. Print.
Bradbrook, M. C. “Role-Playing in Henry IV.” William Shakespeare’s Henry IV, Part 2. Ed.
Harold Bloom. New York: Chelsea House Publishers, 1987. 71–83. Print.
---. Shakespeare and Elizabethan Poetry. Cambridge: Cambridge University Press, 1951. Print.
Braddick, Michael J., and John Walter, eds. Negotiating Power in Early Modern Society:
Order, Hierarchy, and Subordination in Britain and Ireland. Cambridge: Cambridge
University Press, 2001. Print.
Brooks, Christopher W. Law, Politics and Society in Early Modern England. Cambridge:
Cambridge University Press, 2008. Print.
---. Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal
Profession in Early Modern England. Cambridge: Cambridge University Press, 1986;
repr. 2004. Print.
---. “Professions, Ideology and the Middling Sort in the Late Sixteenth and Early Seventeenth
Centuries.” The Middling Sort of People: Culture, Society, and Politics in England,
1550-1800. Ed. Jonathan Barry and Christopher Brooks. Houndmills: Macmillan, 1994.
113–40. Print.
Brooks, E. St. John. “A Pamphlet by Arthur Golding. The Murder of George Saunders.” Notes
and Queries 174.11 (1938): 182–4. Print.
Byrom, H. J. “Richard Tottell: His Life and Work.” The Library 8 (1928): 199–232. Print.
Campbell, A. H. “A Note on the Word ‘Jurisprudence.’” Law Quarterly Review 58 (1942):
334–339. Print.
Certeau, Michel de. The Practice of Everyday Life. Trans. Steven Rendall. Berkeley, CA:
University of California Press, 1984. Print.
220
Clark, Andrew. “An Annotated List of Sources and Related Material for Elizabethan Domestic
Tragedy, 1591-162.” Research Opportunities in Renaissance Drama 18 (1974): 25–33.
Print.
Clark, Sandra. The Elizabethan Pamphleteers: Popular Moralistic Pamphlets, 1580-1640.
Rutherford: Fairleigh Dickinson University Press, 1983. Print.
Clucas, Stephen. “A Knowledge Broken: Francis Bacon’s Aphoristic Style and the Crisis of
Scholastic and Humanistic Knowledge Systems.” English Renaissance Prose: History,
Language and Politics. Ed. Neil Rhodes. Tempe: Medieval & Renaissance Texts &
Studies, 1997. 147–172. Print.
Cockburn, J. S. A History of English Assizes, 1558-1714. Cambridge: Cambridge University
Press, 1972. Print.
Colclough, David. Freedom of Speech in Early Stuart England. Cambridge: Cambridge
University Press, 2005. Print.
Colish, Marcia L. The Stoic Tradition from Antiquity to the Early Middle Ages. Leiden: Brill,
1985. Print.
Coquillette, Daniel R. The Civilian Writers of Doctors’ Commons, London: Three Centuries of
Juristic Innovation in Comparative, Commercial, and International Law. Berlin:
Duncker & Humblot, 1998. Print.
---. Francis Bacon. Stanford: Stanford University Press, 1992. Print.
Comensoli, Viviana. “Household Business”: Domestic Plays of Early Modern England.
Toronto: University of Toronto Press, 1996. Print.
Cormack, Bradin. A Power to Do Justice: Jurisdiction, English Literature, and the Rise of
Common Law, 1509-1625. Chicago: University of Chicago Press, 2007. Print.
Cormack, Bradin, Martha C. Nussbaum, and Richard Strier, eds. Shakespeare and the Law: A
Conversation among Disciplines and Professions. Chicago: University of Chicago
Press, 2013. Print.
Corrigan, Brian Jay. Playhouse Law in Shakespeare’s World. Madison: Fairleigh Dickinson
University Press, 2004. Print.
Covington, Sarah. “The Heresy Examinations of John Philpot: Defiance, Bold Speaking, and
the Making of a Martyr.” Reformation 7 (2002): 79–133. Print.
Cox, John Charles. The Royal Forests of England. London: Methuen, 1905. Print.
Cressy, David. Literacy and the Social Order: Reading and Writing in Tudor and Stuart
England. Cambridge: Cambridge University Press, 2006. Print.
Cunningham, Karen. “‘So Many Books, So Many Rolls of Ancient Time’: The Inns of Court
and Gorboduc.” Solon and Thespis: Law and Theater in the English Renaissance. Ed.
Dennis Kezar. Notre Dame: University of Notre Dame Press, 2007. 197–217. Print.
Cunningham, Karen, and Constance Jordan, eds. The Law in Shakespeare. Basingstoke:
Palgrave Macmillan, 2010. Print.
Desmet, Christy. Reading Shakespeare’s Characters: Rhetoric, Ethics, and Identity. Amherst,
MA: University of Massachusetts Press, 1992. Print.
Devereaux, Simon, and Paul Griffiths, eds. Penal Practice and Culture, 1500-1900: Punishing
the English. New York: Palgrave, 2004. Print.
Dolan, Frances E. Dangerous Familiars: Representations of Domestic Crime in England 1550-
1700. Ithaca: Cornell University Press, 1994. Print.
---. True Relations: Reading, Literature, and Evidence in Seventeenth-Century England.
Philadelphia: University of Pennsylvania Press, 2013. Print.
221
Duffy, Eamon. Fires of Faith: Catholic England under Mary Tudor. New Haven: Yale
University Press, 2009. Print.
Eden, Kathy. Poetic and Legal Fiction in the Aristotelian Tradition. Princeton: Princeton
University Press, 1986. Print.
Evans, Meredith. “Rumor, the Breath of Kings, and the Body of Law in 2 Henry IV.”
Shakespeare Quarterly 60.1 (2009): 1–24. Print.
Ferrell, Lori Anne. “Transfiguring Theology: William Perkins and Calvinist Aesthetics.” John
Foxe and His World. Ed. Christopher Highley and John N. King. Aldershot: Ashgate,
2002. 160–179. Print.
Fissell, Mary. Vernacular Bodies: The Politics of Reproduction in Early Modern England.
Oxford: Oxford University Press, 2004. Print.
Fortier, Mark. The Culture of Equity in Early Modern England. Aldershot: Ashgate, 2005.
Print.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. Alan
Sheridan. New York: Random, 1977. Print.
Freeman, Thomas S. “‘The Good Ministrye of Godlye and Vertuouse Women’: The
Elizabethan Martyrologists and the Female Supporters of the Marian Martyrs.” Journal
of British Studies 39, no. 1: 8-33. Print.
---. “The Rise of Prison Literature.” Huntington Library Quarterly 72.2 (2009): 133–146. Print.
Freeman, Thomas S., and Elizabeth Evenden. Religion and the Book in Early Modern England:
The Making of John Foxe’s “Book of Martyrs.” Cambridge: Cambridge University
Press, 2011. Print.
Freeman, Thomas S., and Sarah Elizabeth Wall. “Racking the Body, Shaping the Text: The
Account of Anne Askew in Foxe’s Book of Martyrs.” Renaissance Quarterly 54.4
(2001): 1165–96. Print.
Fumerton, Patricia, Anita Guerrini, and Kris McAbee, eds. Ballads and Broadsides in Britain,
1500-1800. Aldershot: Ashgate, 2010. Print.
Garcia, Ramona. “‘Most Wicked Superstition and Idolatry’: John Foxe, His Predecessors and
the Development of an Anti-Catholic Polemic in the Sixteenth-Century Accounts of the
Reign of Mary I.” John Foxe at Home and Abroad. Ed. David Loades. Aldershot:
Ashgate, 2004. Print. 79–87. Print.
Gaskill, Malcolm. Crime and Mentalities in Early Modern England. Cambridge: Cambridge
University Press, 2000. Print.
Geng, Penelope. “Before the Right to Remain Silent: The Examinations of Anne Askew and
Elizabeth Young.” The Sixteenth Century Journal 43.3 (2012): 667–79. Print.
Gieskes, Edward. Representing the Professions: Administration, Law, and Theater in Early
Modern England. Newark: University of Delaware Press, 2006. Print.
Gleason, J. H. The Justices of the Peace in England, 1558 to 1640. Oxford: Clarendon, 1969.
Print.
Golding, Louis Thorn. An Elizabethan Puritan: Arthur Golding. New York: Smith, 1937. Print.
Goodrich, Peter. Law in the Courts of Love: Literature and Other Minor Jurisprudences.
London: Routledge, 1996. Print.
Gowing, Laura. Common Bodies: Women, Touch and Power in Seventeenth-Century England.
New Haven: Yale University Press, 2003. Print.
Greenberg, Marissa. “Signs of the Crimes: Topography, Murder, and Early Modern Domestic
Tragedy.” Genre 40.1-2 (2007): 1–29. Print.
222
Greenblatt, Stephen. “Invisible Bullets: Renaissance Authority and Its Subversions.” William
Shakespeare’s Henry IV, Part 2. Ed. Harold Bloom. New York: Chelsea House
Publishers, 1987. 125–150. Print.
Haigh, Christopher. English Reformations: Religion, Politics, and Society under the Tudors.
Oxford: Clarendon, 1993. Print.
Hall, Basil. “The Early Rise and Gradual Decline of Lutheranism in England (1520-1600).”
Reform and Reformation: England and the Continent c.1500-c.1750. Ed. Derek Baker.
Oxford: Blackwell, 1979. 103–131. Print.
Helgerson, Richard. Adulterous Alliances: Home, State, and History in Early Modern
European Drama and Painting. Chicago: University of Chicago Press, 2000. Print.
---. Forms of Nationhood: The Elizabethan Writing of England. Chicago: University of
Chicago Press, 1992. Print.
Herrup, Cynthia B. The Common Peace: Participation and the Criminal Law in Seventeenth-
Century England. Cambridge: Cambridge University Press, 1987. Print.
Hill, Christopher. “The Many-Headed Monster in Late Tudor and Early Stuart Political
Thinking.” Change and Continuity in Seventeenth-Century England. New Haven, CT:
Yale University Press, 1974. Print.
Hickerson, Megan L. Making Women Martyrs in Tudor England. Houndmills: Palgrave, 2005.
Print.
Hindle, Steve. “‘Bleedinge Afreshe?’: The Affray and Murder at Nantwich, 19 December
1572.” The Extraordinary and the Everyday in Early Modern England. Ed. Angela
McShane and Garthine Walker. London: Palgrave, 2010. 224–45. Print.
---. “Imagining Insurrection in Seventeenth-Century England: Representations of the Midland
Rising of 1607.” History Workshop Journal 66 (2008): 21–61. Print.
---. The State and Social Change in Early Modern England, 1550-1640. Houndmills: Palgrave,
2002. Print.
Hogan, John C., and Mortimer D. Schwartz. “A Translation of Bacon’s Maxims of the
Common Law.” Law Library Journal 77 (1984): 707–718. Print.
---. “On Bacon’s ‘Rules and Maximes’ of the Common Law.” Law Library Journal 76 (1983):
48–77. Print.
Horowitz, Maryanne Cline. Seeds of Virtue and Knowledge. Princeton, NJ: Princeton
University Press, 1998. Print.
Houdt et al, Toon van, ed. On the Edge of Truth and Honesty: Principles and Strategies of
Fraud and Deceit in the Early Modern Period. Leiden: Brill, 2002. Print.
Houlbrooke, Ralph. Church Courts and the People during the English Reformation 1520-1570.
Oxford: Oxford University Press, 1979. Print.
Hunt, Arnold. The Art of Hearing: English Preachers and Their Audiences, 1590-1640.
Cambridge: Cambridge University Press, 2010. Print.
Hunt, William. The Puritan Moment: The Coming of Revolution in an English County.
Cambridge, MA: Harvard, 1983. Print.
Hutson, Lorna. The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance
Drama. Oxford: Oxford University Press, 2007. Print.
---. “Not the King’s Two Bodies: Reading the ‘Body Politic’ in Shakespeare’s Henry IV, Parts
1 and 2.” Rhetoric and Law in Early Modern Europe. Ed. Lorna Hutson and Victoria
Kahn. New Haven: Yale University Press, 2001. 166–189. Print.
223
---. “Rethinking the ‘Spectacle of the Scaffold’: Juridical Epistemologies and English Revenge
Tragedy.” Representations 89 (2005): 30–58. Print.
Ingram, Juliet Amy. “The Conscience of the Community: The Character and Development of
Clerical Complaint in Early Modern England.” Ph.D. diss. University of Warwick,
2004. Print.
James, Heather. Shakespeare’s Troy: Drama, Politics, and the Translation of Empire.
Cambridge: Cambridge University Press, 1997. Print.
Jardine, Lisa. Francis Bacon: Discovery and the Art of Discourse. Cambridge: Cambridge
University Press, 1974. Print.
Jardine, Lisa, and Alan Stewart. Hostage to Fortune: The Troubled Life of Francis Bacon
1561–1726. London: Gollancz, 1998. Print.
Johnstone, Gerry, and Daniel W. Van Ness. “The Meaning of Restorative Justice.” Handbook
of Restorative Justice. Ed. Gerry Johnstone and Daniel Van Ness. Cullompton: Willan,
2007. 5–23. Print.
Kastan, David Scott. “Little Foxes.” John Foxe and His World. Ed. Christopher Highley and
John N. King. Aldershot: Ashgate, 2002. 117–129. Print.
Keeton, G. W. Shakespeare’s Legal and Political Background. New York: Barnes and Noble,
1967. Print.
Kelley, Donald R. “Civil Science in the Renaissance: Jurisprudence Italian Style.” The
Historical Journal 22.4 (1979): 777–94. Print.
---. “History, English Law and the Renaissance.” Past and Present 65 (1974): 24–51. Print.
---. “Vera Philosophia: The Philosophical Significance of Renaissance Jurisprudence.” Journal
of the History of Philosophy 14.3 (1976): 267–79. Print.
King, John N. Foxe’s Book of Martyrs and Early Modern Print Culture. Cambridge:
Cambridge University Press, 2006. Print.
---. “Freedom of the Press, Protestant Propaganda, and Protector Somerset.” Huntington
Library Quarterly 40.1 (1976): 1–9. Print.
---. “Religious Dissidence in Foxe’s ‘Book of Martyrs’: Humanism or Heresy?” Religion &
Literature 32.2 (2000): 141–56. Print.
Kinney, Arthur F. Rogues, Vagabonds, & Sturdy Beggars: A New Gallery of Tudor and Early
Stuart Rogue Literature Exposing the Lives, Times, and Cozening Tricks of the
Elizabethan Underworld. Amherst: University of Massachusetts Press, 1990. Print.
Klinck, Dennis R. Conscience, Equity and the Court of Chancery in Early Modern England.
Burlington: Ashgate, 2010. Print.
Knafla, Louis A. “The Law Studies of an Elizabethan Student.” Huntington Library Quarterly
32, no. 3 (1969): 221–40. Print.
---. “The Matriculation Revolution and Education at the Inns of Court in Renaissance
England.” Tudor Men and Institutions. Ed. Arthur Slavin. Baton Rouge, LA: Louisiana
State University Press, 1972. 232–264. Print.
Knott, John R. Discourses of Martyrdom in English Literature, 1563-1694. Cambridge:
Cambridge University Press, 1993. Print.
Kreps, Barbara. “Elizabeth Pickering: The First Woman to Print Law Books in England and
Relations Within the Community of Tudor London’s Printers and Lawyers.”
Renaissance Quarterly 56 (2003): 1053–88. Print.
224
Lake, Peter. “Anti-Popery: The Structure of a Prejudice.” Conflict in Early Stuart England:
Studies in Religion and Politics 1603-1642. Ed. Richard Cust and Ann Hughes.
London: Longman, 1989. 72–106. Print.
Lake, Peter, and Michael C. Questier. The Anti-Christ’s Lewd Hat: Protestants, Papists and
Players in Post-Reformation England. New Haven, CT: Yale University Press, 2002.
Print.
Lemon, Rebecca. “Compulsory Conviviality in Early Modern England.” English Literary
Renaissance 43.3 (2013): 381–414. Print.
---. “Law.” The Oxford Handbook of Shakespeare. Ed. Arthur F. Kinney. Oxford: Oxford
University Press, 2012. 554–570. Print.
---. “Scaffolds of Treason in Macbeth.” Theatre Journal 54.1 (2002): 25–43. Print.
---. Treason by Words: Literature, Law, and Rebellion in Shakespeare’s England. Ithaca, NY:
Cornell University Press, 2008. Print.
Levack, Brian P. The Civil Lawyers in England, 1603-1641: A Political Study. Oxford:
Clarendon, 1973. Print.
Levin, Carole. “Women in the Book of Martyrs as Models of Behavior in Tudor England.”
International Journal of Women’s Studies. 4.2 (1981): 196–207. Print.
Loades, David, ed. John Foxe at Home and Abroad. Aldershot: Ashgate, 2004. Print.
MacCormick, Neil. “De Iurisprudentia.” Critical Studies in Ancient Law, Comparative Law
and Legal History. Ed. John W. Cairns, Alan Watson, and O. Robinson. Oxford: Hart,
2001. 79–83. Print.
MacCulloch, Diarmaid. The Reformation: A History. New York: Penguin, 2003. Print.
Mack, Peter. Elizabethan Rhetoric: Theory and Practice. Cambridge: Cambridge University
Press, 2002. Print.
Maclean, Ian. Interpretation and Meaning in the Renaissance: The Case of Law. Cambridge:
Cambridge University Press, 1996. Print.
Majeske, Andrew J. Equity in English Renaissance Literature: Thomas More and Edmund
Spenser. New York: Routledge, 2006. Print.
Marshburn, Joseph H. “‘A Cruell Murder Donne in Kent’ and Its Literary Manifestations.”
Studies in Philology 46.2 (1949): 131–140. Print.
Martin Jr., Hubert. “The Concept of Philanthropia in Plutarch’s Lives.” The American Journal
of Philology 82.2 (1961): 164–75. Print.
Martin, Randall. Women, Murder, and Equity in Early Modern England. New York:
Routledge, 2008. Print.
Maus, Katharine Eisaman. Inwardness and Theater in the English Renaissance. Chicago:
University of Chicago Press, 1995. Print.
McDonough, Thomas M. The Law and the Gospel in Luther: A Study of Martin Luther’s
Confessional Writings. Oxford: Oxford University Press, 1963. Print.
McGrath, Alister E. Luther’s Theology of the Cross. Oxford: Blackwell, 1985. Print.
Monta, Susannah Brietz. Martyrdom and Literature in Early Modern England. Cambridge:
Cambridge University Press, 2005. Print.
Mukherji, Subha. Law and Representation in Early Modern Drama. Cambridge: Cambridge
University Press, 2006. Print.
Mullett, Michael A. Martin Luther. London: Routledge, 2004. Print.
Nelson, Alan H. Monstrous Adversary: The Life of Edward de Vere, 17th Earl of Oxford.
Liverpool: Liverpool University Press, 2003. Print.
225
Neustadt, Mark. “The Making of the Instauration: Science, Politics and Law in the Career of
Francis Bacon.” Ph.D. diss. Johns Hopkins University, 1987. Print.
Olmsted, Wendy. Rhetoric: An Historical Introduction. Malden, MA: Blackwell, 2006. Print.
Ong, Walter J. Ramus, Method, and the Decline of Dialogue: From the Art of Discourse to the
Art of Reason. Chicago: University of Chicago Press, 2004. Print.
Orlin, Lena Cowen. “Domestic Tragedy: Private Life on the Public Stage.” A Companion to
Renaissance Drama. Ed. Arthur F. Kinney. Malden: Blackwell, 2002. 367–383. Print.
---. Private Matters and Public Culture in Post-Reformation England. Ithaca: Cornell
University Press, 1994. Print.
Pettegree, Andrew. “Nicodemism and the English Reformation.” Marian Protestantism: Six
Studies. Aldershot: Ashgate, 1996. 86–117. Print.
Plucknett, Theodore F. T. A Concise History of the Common Law. 2nd ed. Rochester: Lawyers
Co-Operative, 1936. Print.
Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Study of English Historical
Thought in the Seventeenth Century: A Reissue with a Retrospect. Cambridge:
Cambridge University Press, 1957. Print.
Powell, Edward. “Gascoigne, Sir William (c.1350–1419).” Oxford Dictionary of National
Biography 2004. Online.
Prest, Wilfrid R. “Lay Legal Knowledge in Early Modern England.” Learning the Law:
Teaching and the Transmission of English Law 1150-1900. Ed. Jonathan Bush and
Alain Wijffels. London: Hambledon, 1999. 302–313. Print.
---. The Rise of the Barristers: A Social History of the English Bar, 1590-1640. Oxford:
Clarendon, 1986. Print.
---. “William Lambarde, Elizabethan Law Reform, and Early Stuart Politics.” Journal of
British Studies 34.4 (1995): 464–480. Print.
Proudfoot, G. R, ed. Records of Plays and Players in Norfolk and Suffolk. Oxford: Malone
Society, 1980. Print.
“Prūdentia.” Oxford Latin Dictionary. ed. P. G. W. Glare. Oxford: Oxford University Press.
1973. 1509–10. Print.
Raffield, Paul. “The Ancient Constitution, Common Law and the Idyll of Albion: Law and
Lawyers in Henry IV, Parts 1 and 2.” Law and Literature 22.1 (2010): 18–47. Print.
---. Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558-
1660. Cambridge: Cambridge University Press, 2004. Print.
Raffield, Paul, and Gary Watt, eds. Shakespeare and the Law. Oxford: Hart, 2008. Print.
Raymond, Joad. Pamphlets and Pamphleteering in Early Modern Britain. Cambridge:
Cambridge University Press, 2003. Print.
“Re-thinking Access to Criminal Justice in Canada: A Critical Review of Needs, Responses
and Restorative Justice Initiatives.” 3.3.1. http://www.justice.gc.ca/eng/pi/rs/rep-
rap/2003/rr03_2/p33.html. Online.
Rice, Douglas Walthew. The Life and Achievements of Sir John Popham, 1531-1607: Leading
to the Establishment of the First English Colony in New England. Madison: Fairleigh
Dickinson University Press, 2005. Print.
Rice Jr., Eugene F. The Renaissance Idea of Wisdom. Cambridge, MA: Harvard University
Press, 1958. Print.
Richards, Jennifer. Rhetoric and Courtliness in Early Modern Literature. Cambridge:
Cambridge University Press, 2003. Print.
226
Richardson, Catherine. Domestic Life and Domestic Tragedy in Early Modern England: The
Material Life of the Household. Manchester: Manchester University Press, 2006. Print.
Ros, William Lennox de. Memorials of the Tower of London. London: Murray, 1866. Print.
Ross, Richard J. “The Commoning of the Common Law: Print, Memory, and the Intellectual
History of Legal Communications, 1520-1640.” Ph.D. diss. Yale University, 1998.
Print.
Ryrie, Alec. “The Strange Death of Lutheran England.” Journal of Ecclesiastical History 53
(2002): 64–92. Print.
Schoenfeldt, Michael C. Bodies and Selves in Early Modern England: Physiology and
Inwardness in Spenser, Shakespeare, Herbert, and Milton. Cambridge: Cambridge
University Press, 1999. Print.
Scodel, Joshua. Excess and the Mean in Early Modern English Literature. Princeton, NJ:
Princeton University Press, 2002. Print.
Serjeantson, Richard. “Testimony.” Renaissance Figures of Speech. Ed. Sylvia Adamson,
Gavin Alexander, and Katrin Ettenhuber. Cambridge: Cambridge University Press,
2007. 179–94. Print.
---. “Testimony and Proof in Early-Modern England.” Studies in History and Philosophy of
Science 30.2 (1999): 195–236. Print.
Shaaber, Matthias A. Some Forerunners of the Newspaper in England 1476-1622.
Philadelphia: University of Pennsylvania Press, 1929. Print.
Shapin, Steven. The Social History of Truth: Civility and Science in Seventeenth-Century
England. Chicago: University of Chicago Press, 1994. Print.
Shapin, Steven, and Simon Schaffer. Leviathan and the Air Pump: Hobbes, Boyle, and the
Experimental Life. Princeton: Princeton University Press, 1985. Print.
Shapiro, Barbara J. A Culture of Fact: England, 1550-1720. Ithaca: Cornell University Press,
2000. Print.
---. “Political Theology and the Courts: A Survey of Assize Sermons c1600-1688.” Law and
Humanities 2.1 (2008): 1–28. Print.
---. “Testimony in Seventeenth-Century English Natural Philosophy: Legal Origins and Early
Development.” Studies in History and Philosophy of Science 33 (2002): 243–63. Print.
Sharpe, Gerry. “The Idea of Reparation.” Handbook of Restorative Justice. Ed. Gerry
Johnstone and Daniel Van Ness. Collumpton: Wiliam, 2007. 24–40. Print.
Sharpe, J. A. Crime in Early Modern England 1550-1750. 2nd ed. Harlowe: Longman, 1984.
Print.
---. “‘Last Dying Speeches’: Religion, Ideology and Public Execution in Seventeenth-Century
England.” Past and Present 107 (1985): 144–67. Print.
---. “‘Such Disagreement Betwyx Neighbours’: Litigation and Human Relations in Early
Modern England.” Disputes and Settlements: Law and Human Relations in the West.
Ed. John Bossy. Cambridge: Cambridge University Press, 1983. 167–87. Print.
Sherman, William H. “How to Make Anything Signify Anything.” Cabinet 40 (2011).
http://www.cabinetmagazine.org/issues/40/sherman.php. Online.
Sherman, William H., and William J. Sheils, eds. Prison Writings in Early Modern England.
Huntington Library Quarterly 72.2 (2009).
Shrank, Cathy. Writing the Nation in Reformation England, 1530-1580. Oxford: Oxford
University Press, 2004. Print.
227
Skinner, Quentin. The Foundations of Modern Political Thought: The Renaissance. Vol. 1.
Cambridge: Cambridge University Press, 1978. Print. 2 vols.
Smith, Bruce R. The Key of Green: Passion and Perception in Renaissance Culture. Chicago:
University of Chicago Press, 2009. Print.
Smith, Pamela H. The Body of the Artisan: Art and Experience in the Scientific Revolution.
Chicago: University of Chicago Press, 2004. Print.
Smith, Rowena J. “The Lambe Speaketh...An English Protestant Satire.” Journal of the
Warburg and Courtauld Institutes 61 (1998): 261–267. Print.
Solly-Flood, F. “The Story of Prince Henry of Monmouth and Chief-Justice Gascoign.”
Transactions of the Royal Historical Society 3 (1886): 47–152. Print. New Ser. 3.
Stein, Peter. The Character and Influence of the Roman Civil Law: Historical Essays. London:
Hambledon, 1988. Print.
---. Regulae Juris: From Juristic Rules to Legal Maxims. Edinburgh: University of Edinburgh
Press, 1966. Print.
Stephens, James. Francis Bacon and the Style of Science. Chicago: University of Chicago
Press, 1975. Print.
Stevens, Linton C. “The Contribution of French Jurists to the Humanism of the Renaissance.”
Studies in the Renaissance 1 (1954): 92–105. Print.
Strain, Virginia Lee. “The Winter’s Tale and the Oracle of the Law.” ELH 78.3 (2011): 557–
84. Print.
Stretton, Timothy. Women Waging Law in Elizabethan England. Cambridge: Cambridge
University Press, 1998. Print.
Strier, Richard. “Against the Rule of Reason: Praise of Passion from Petrarch to Luther to
Shakespeare to Herbert.” Reading the Early Modern Passions: Essays in the Cultural
History of Emotion. Ed. Gail Kern Paster, Katherine Rowe, and Mary Floyd-Wilson.
Philadelphia: University of Pennsylvania Press, 2004. 23–42.
---. “Shakespeare and Legal Systems: The Better the Worse (But Not Vice Versa).”
Shakespeare and the Law. Ed. Bradin Cormack, Martha Nussbaum, and Richard Strier.
Chicago: University of Chicago Press, 2013. 174–200. Print.
Suzuki, Mihoko. “Gender, Class, and the Social Order in Late Elizabethan Drama.” Theatre
Journal 44.1 (1992): 31–45. Print.
Syme, Holger Schott. Theatre and Testimony in Shakespeare’s England. Cambridge:
Cambridge University Press, 2012. Print.

“Systrophe.” Silva Rhetoricae. Ed. Gideon Burton. www.rhetoric.byu.edu. Online.
Tilley, Morris Palmer. Elizabethan Proverb Lore in Lyly’s Euphues and in Pettie’s Petite
Pallace with Parallels from Shakespeare. New York: Macmillan, 1926. Print.
Tucker, Edward F. J. Intruder into Eden: Representations of the Common Lawyer in English
Literature, 1350-1750. Columbia, SC: Camden House, 1984. Print.
Vickers, Brian, ed. English Renaissance Literary Criticism. Oxford: Clarendon, 1999. Print.
---. Francis Bacon and Renaissance Prose. Cambridge: Cambridge University Press, 1968.
Print.
Watanabe, Masao. “Francis Bacon: Philanthropy and the Instauration of Learning.” Annals of
Science 49.2 (1992): 163–73. Print.
Watt, Tessa. Cheap Print and Popular Piety, 1550-1640. Cambridge: Cambridge University
Press, 1991. Print.
228
Whiting, Bartlett Jere. Proverbs in the Earlier English Drama with Illustrations from
Contemporary French Plays. Cambridge, MA: Harvard University Press, 1938. Print.
Whiting, Michael S. Luther in English: The Influence of His Theology of Law and Gospel on
Early English Evangelicals (1525-35). Eugene, OR: Pickwick, 2010. Print.
Wilson, Luke. Theaters of Intention: Drama and the Law in Early Modern England. Stanford,
CA: Stanford University Press, 2000. Print.
Wood, Andy. The Memory of the People: Custom and Popular Senses of the Past in Early
Modern England. Cambridge: Cambridge University Press, 2013. Print.
Woodbridge, Linda. English Revenge Drama: Money, Resistance, Equality. Cambridge:
Cambridge University Press, 2010. Print.
Wrightson, Keith. “‘Sorts of People’ in Tudor and Stuart England.” The Middling Sort of
People: Culture, Society, and Politics in England, 1550-1800. Ed. Jonathan Barry and
Christopher Brooks. Houndmills: Macmillan, 1994. 28–51, 227–233. Print.
Wrigley, E. A., and R. S. Schofield. The Population History of England, 1541-1871: A
Reconstruction. London: Arnold, 1981. Print.
Zagorin, Perez. Ways of Lying: Dissimulation, Persecution, and Conformity in Early Modern
Europe. Cambridge, MA: Harvard University Press, 1990. Print.
Zurcher, Andrew. Shakespeare and Law. London: Methuen, 2010. Print.
229
Acknowledgments

I am grateful to the scholars who enriched the fields of early modern English
literature and history with their archival research, scholarly interpretations, and critical
editions.
It is with great pleasure that I thank Rebecca Lemon, my supervisor, for directing
my graduate studies from beginning to end. She has been my first and best reader and a
fount of creative inspiration. Many thanks also to Heather James for her wise counsel on
both the research and teaching aspects of academic life, to Bruce R. Smith for sharing his
unique insights which invariably raised my thinking to the next level, to Cynthia B.
Herrup for asking the hard yet fundamental questions, and to Steve Hindle for reading the
evolving project with one eye on the facts and the other on narrative texture.
“So what is your dissertation about?” Many people have asked me that question—
and the following people, in particular, have helped me to answer it! Thank you Laura
Aydelotte, Gerald E. Bentley Jr. and Elizabeth Budd Bentley, O. M. “Skip” Brack, Elma
Brenner, Matthew Carrillo-Vincent, Nicholas and Laura Chesne, Catherine Chou, Gino
Conti, Joseph A. Dane, April Davidauskis, William Fisher, David Galbraith, Kristen
Geaman, Brendan John Gillis, Constance Jordan, Genevieve Kaplan, Krista Kesselring,
Christina Luckyj, Seth Lerer, Zofia Lesinska, Lindsay O’Neill, Meghan Olivas, Shaily
Patel, Arunima Paul, Daniel Reeve, Jennifer Richards, Marjorie Rubright, Flora Ruiz,
Felicity Stout, Antonia Szabari, Jean Vale, Emma Whipday, and Nyssa and Henry Wilton.
In this time of austerity, I was fortunate to have received generous support from
the University of Southern California to pursue my research at home and abroad. Many
thanks to my home department of USC English (chaired by Margaret Russett), USC-
Huntington Early Modern Studies Institute (directed by Peter Mancall), USC Center for
Law, Culture, and History, USC Interdisciplinary Research Group of the Center for
Religion and Civic Culture, and USC Graduate School. I am also grateful for the support
of the University of Toronto’s Centre for Reformation and Renaissance Studies, the
Academy for Advanced Study in Renaissance (directed by Edward Muir of Northwestern
University), and the Huntington Library Research and Fellowship Program. To the
directors and members of the steering committee of those institutions: I hope I made good
use of the resources.
I am grateful to the staff of the British Library (especially curator Arnold Hunt),
Lambeth Palace Library, Bodleian Library, Huntington Library (especially curators Mary
Robertson and Vanessa Wilkie), Clark Library, and the University of Toronto Libraries
for their courteous help with the research questions. In London, where cheap lodging
sounds like an oxymoron, Alexis and Kirsty Lothian came through with a brilliant
solution. In Pasadena, Edward R. Bosley offered a tranquil retreat from noise and
distraction.
Portions of my project have been presented at workshops, colloquia, seminars,
and conferences at the USC-Huntington Early Modern Studies Institute Renaissance
Literature Seminar, Renaissance Society of America, Shakespeare Association of
America, Pacific Ancient and Modern Language Association, and the USC English and
Art History departments, and I would like to thank the organizers, commentators, and
230
audience members for their questions and suggestions, in particular, Paul Yachnin, Karen
Cunningham, and Harry Keyishian.
Graduate school has been an adventure. I could not have gotten very far without
the love and support of my family. I wish to thank Liping Geng for nurturing my passion
for literature, Liya Gu for telling me to “go West” to seek my fortunes (right, as ever),
Robert McIntyre, Elaine McIntyre, and Erin McIntyre for their lavish encouragements,
and last but not least, my other half, Andrew McIntyre, for sharing this journey with great
patience and cheer.

Abstract (if available)

Abstract In early modern England, two equally powerful legal epistemologies existed. Leading lawyers viewed jurisprudence as the perfection of reason. In contrast, popular authors defined it as the epitome of moral feeling. According to the latter, jurisprudence—knowledge of justice—depended less on a subject's formal training in the law than on his or her conscience. By modeling for readers the ""proper"" emotional responses to specific legal situations, popular writers presented their literary fictions as essential tools for honing legal wisdom. This project seeks to show the crucial work of literary authors in resisting pressure from the legal profession to cede the practice of jurisprudence to the ""professors of the law."" In preserving a place for emotion in law, and in highlighting the ability of laypeople to understand and conduct legal work, literary authors successfully undercut legal professionals' attempts to make law a field of pure reason.

Linked assets

University of Southern California Dissertations and Theses

Conceptually similar

PDF

Slow reading in Shakespeare's England

PDF

Spying and surveillance in the early modern state and stage

PDF

Productive misogyny in medieval and early modern literature: Women, justice, and social order

PDF

Genre transgression and moral interrogations in early modern English revenge drama

PDF

The politics of eros: writing under the auspices of Ovid's Cupid in early modern English literature

PDF

As she fled: women and movement in early modern English poetry and drama

PDF

Blood is the argument: discourses of blood, character, and affinity in early modern drama

PDF

The anatomy of cognition: thinking moments in Spenser, Shakespeare, and Milton

PDF

Marketing women: representations of working women in early modern London

PDF

Printing pleasing profit: The crafting of capital selves and sales in early modern, English drama

PDF

Colonizing lands and landscapes in the English Atlantic, c.1580 - c.1640

PDF

Stage, cathedral, wagon, street: the grounds of belief in Shakespeare and Renaissance performance

PDF

Shakespeare's speaking pictures

PDF

'This object kills me': the intersection of gender and violence in performance of Shakespearean tragedy

PDF

From the hellmouth to the witch's cauldron: cooking and feeding evil on the early modern stage

PDF

Sonic displacement, sonic placemaking: the poetics of diaspora in Yoko Tawada, Jessica Hagedorn, and M.I.A.

PDF

The bespoke book: experimental printing in early modern Italy

PDF

Immersive Shakespeare: locating early modern immersion in contemporary adaptations

PDF

Unraveling countrysides: provincial modernities in contemporary popular Indian cinema

PDF

The desire for presence: developments in theatrical biography during the long Eighteenth Century

Asset Metadata

Creator Geng, Penelope (author)

Core Title Popular jurisprudence in early modern England

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program English

Publication Date 07/16/2016

Defense Date 04/22/2014

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag Drama,early modern literature,Jurisprudence,law and emotion,OAI-PMH Harvest,popular culture,renaissance,Shakespeare

Format application/pdf (imt)

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Lemon, Rebecca (committee chair), Herrup, Cynthia B. (committee member), James, Heather (committee member), Smith, Bruce R. (committee member)

Creator Email penelopegeng@gmail.com,penny_geng@yahoo.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c3-445548

Unique identifier UC11286751

Identifier etd-GengPenelo-2711.pdf (filename),usctheses-c3-445548 (legacy record id)

Legacy Identifier etd-GengPenelo-2711.pdf

Dmrecord 445548

Document Type Dissertation

Format application/pdf (imt)

Rights Geng, Penelope

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the a...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA