The Trial of Man

I N T R O D U C T I O N
God and the Courts

I practiced trial law for five years, but nothing I encountered during that time was more eye-opening than the "Rule 9" internship I did after my second year in law school. In Washington state, Admission to Practice Rule 9 authorizes law students who have completed two years of study to work in the office of a prosecuting attorney and try misdemeanor cases in district court. I worked for the Snohomish County Prosecutor for four months in the summer of 1977. After a one-week orientation, in which I saw one speeding trial, I was on my own with a daily load of district court cases.

I learned quickly that each judge ran his courtroom in a different way, and each seemed to have a different idea of what criminal procedure and the law of evidence required. There were rules in the district courts—sometimes at odds with what the law actually said—that had not filtered down to law schools, and I spent the summer learning them the hard way, eliciting snarls from judges and, sometimes, peals of laughter. I was a tinhorn with nothing but knowledge that came out of books, and that not under the best command. In district court, given the penny-ante nature of what was at stake for most defendants, appeals were usually more expensive than they were worth. This gave judges a certain latitude, both with regard to courtroom procedure and the application of law. For instance, I once heard a district court judge announce in a civil case—to the stupefaction of the plaintiff's attorney, who was trying to collect a small debt—that a certain statute requiring punitive interest did not apply in his court.

One of the judges I faced weekly particularly favored an inquisitorial rather than an adversarial approach to trial. He liked to take over for both attorneys, questioning the witnesses and even cross-examining them, until he decided he had enough facts to make a decision. He thought that attorneys were superfluous at best, and damned obstacles to the truth at the worst. He couldn't dismiss attorneys from his court, but he would have liked to. He would have cleared his docket by noon instead of three o'clock.

Reading through Shakespeare's plays, which contain well over thirty trial scenes, one could conclude that Shakespeare also thought attorneys dispensable. In all of his plays, there is only one appearance by a lawyer. In that instance, the lawyer represents only himself, and it turns out he has a fool for a client. (We will get to him in the first chapter.) Unlike today's courtroom dramatists, Shakespeare was primarily interested in judgment, not the fencing between lawyers that takes place in courtroom thrillers like Anatomy of a Murder, Judge John Voelker's excellent novel and the granddaddy of today's huge crop of pale offspring. Shakespeare's courtroom dramas focus on the judge and parties "unrepresented by counsel." This is a bit surprising, since the amount of litigation in England grew by leaps and bounds during Shakespeare's lifetime, and the number of lawyers with it. The absence of lawyers in his plays might be accounted for by their absence in the most dramatic cases: treason trials especially and criminal trials in general. (Our right to certain procedural protections, such as the right to counsel, were absent in Elizabethan and Jacobean criminal courts.)

What cannot be accounted for by reference to the practice of Shakespeare's day is the absence of juries in his plays. The jury system was well established, particularly in criminal matters, and the English were proud of it. Yet Shakespeare presents not even one jury; he is not interested in how twelve people arrive at judgments of fact, but in how one judge, given God-like responsibility without God-like powers, finally decides the facts and declares a verdict. Judgment is the archetypal situation for Shakespeare, the one event that every human being will have to face, on one or both sides of the grave. In the final judgment there will be no lawyers, juries, or witnesses, and Shakespeare, the poet of the universal, concentrates on that scene. The tension in Shakespeare's trial scenes pulses between the judge, the accused, and often the accuser. Shakespeare asks: Given humanity's limited resources, doubtful morality, and the opacity of even the recent past, how can the most well-intentioned judge arrive at the truth in any contested matter? How can judges ever be completely sure of the correctness of their verdicts? (Of course, knowing the virtual impossibility of this, we do not require absolute certainty in any determination of fact. Triers of fact, judge or jury, make their determinations by a preponderance of the evidence in civil cases and beyond a reasonable doubt in criminal cases.) Even if a judge is fortunate enough to determine accurately the relevant facts in any particular case, the problem of justice remains. What punishments should be meted out? What fines should be levied, damages awarded, remedies applied? Even if judges had perfect knowledge and a perfect sense of justice, could we devise a system that was free from corruption? And Shakespeare also broaches the broader political question: How does the health of the body politic affect the judicial system, and vice versa?

Shakespeare puts these questions and more to his audience, and they give us no less trouble than they did Shakespeare's contemporaries. Today, even conservatives are thinking twice about supporting the death penalty, given the significant potential for mistake and the impossibility of unexecuting someone. Since 1975, eighty-seven inmates have walked off death rows across the nation because wrongful convictions have been established. Mistaken identity is sometimes established, newly discovered exculpatory evidence is presented, or DNA tests lead to exoneration (in eight cases, as of this writing). Concerning even-handed justice, there is no doubt that black or Hispanic criminals generally get longer jail sentences than whites convicted for committing the same crimes. And what about cases of judicial corruption? Although such cases rarely come to light, judges have been convicted of taking bribes and there is no reason to believe that any judicial system will ever exist in which all the judges are spotless. These problems, very much with us today, are all examined by Shakespeare and his audience, though from a very different perspective than ours, for Shakespeare's society was profoundly Christian, while ours is thoroughly secular. If we are going to understand law and judgment in Shakespeare's plays—and thus to a large degree, Shakespeare himself—we have to understand the historical context in which Shakespeare wrote, and we must start by examining Christianity's relationship to the law in Renaissance England and how it affected people's beliefs about law and judgment.

The Theological Foundations of English Law

Christianity furnished the single most powerful and pervasive frame of reference for the English of the sixteenth and seventeenth centuries. The Bible was the central piece of cultural equipment for making sense of the world and evaluating it, and it was also the most influential source of language, providing a vast number of maxims and stories, which the English used extensively in the form of allusions and analogies. Shakespeare's plays are pervaded by references to the Bible partly because it was such an important part of an Englishman's working vocabulary.

Shakespeare lived in a Europe wracked with the religious controversies of the Reformation. Tudor and Stuart policy, foreign and domestic, was inextricably bound up with these controversies, making religion a continual subject of discussion in Renaissance England. Educated English citizens understood religious arguments in detail, and by today's standards, possessed an impressive grasp of theology. As Roland Mushat Frye notes, "Approximately half of the books published in England between the inception of printing and the parliamentary revolution bore explicitly religious titles, and religious ideas figured prominently or pervasively in many if not most of the others." Church attendance was mandatory in Shakespeare's day, as was chapel attendance for students going to Oxford and Cambridge. Anglican priests were required yearly to read, Sunday by Sunday, the sermons contained in the official Homilies Appointed to Be Read in Churches, encouraging a homogeneity of belief—and also giving the government a way to indoctrinate its citizens. English grammar school students had the regular assignment of attending service on Sunday and summarizing the sermon (in Latin, of course) for school on Monday.

The people of Elizabethan and Jacobean England believed that man's will and perceptions had been corrupted by the fall of Adam and Eve, and as the result of this original sin, man had a natural inclination toward evil. Good and evil were clearly distinguishable, but evil was, superficially, easier, more attractive, and more compelling than the good. As a result, a person often chose to commit sinful acts, and sinning, as Hamlet tells Gertrude, becomes addictive. The more one chose evil, the easier it became to choose, the heart became hardened, and small sins led to large ones. Since the health of the commonwealth depended on the spiritual health of its citizens, any kind of debauchery or loose moral behavior was seen as a threat to the community, one that necessitated communal action. Thus, the law played a major role in the constant battle against sin, preserving the spiritual health of the individual and the body politic. Law was as much a religious as a civil institution, and this sharply differentiates the Elizabethan judicial system from ours.

The prevailing theory of law in our time is that the law is rational, utilitarian, and secular. Legislators create rules to accomplish policy objectives. Laws are the instruments used to promote the finite, material interests of particular groups and individuals. Judges, in reaching decisions, use legal precedents to solve problems, not to propound universal truths or to make the will of God explicit. Laws are evaluated not with respect to any universal standard of right and wrong, but by workability. In evaluating a law, the question our legislators ask is whether it accomplishes the policy objectives that it was designed to promote. For us, this means the law is never final, because policy is never final. Laws are continually revised, and if a judge is overruled by a higher court or, in effect, by the legislature, this may only indicate that people have decided to institute new policy: thus, at one point, a federal income tax is unconstitutional (Pollock v. Farmer's Loan and Trust Co. [1895]) because it violates the constitutional provision requiring that a direct tax be apportioned among the states on the basis of population, but at another point, income taxes become constitutional (in 1912 the Sixteenth Amendment to the Constitution was passed). Sometimes the Supreme Court decides that the time for new policy has come, as in Roe v. Wade (1973), where the court discovered a hitherto unrecognized constitutional right to an abortion during the first trimester of a pregnancy, a limited right during the second, and an extremely limited right during the third. However you feel about Roe v. Wade as policy, the decision was certainly a remarkable "find" in the Constitution.

Modern positivist jurisprudence, the author of which is the utilitarian Jeremy Bentham, sees law as the rational creation of the state for its own ends. Bentham's idea of law's origin and purpose would have seemed strange to the jurists of Renaissance England. They understood that God was the source of law. The state, in fact, was subordinate to the law of God and created for the benefit of that law. The state did not create law, according to the Christian view, but merely discovered it, gave expression to it, enforced and guarded it. Most law developed over the centuries as custom, an organic product of God's creation. Elizabethan legislators and jurists are more comparable to modern physicists than they are to modern members of their own profession, for like physicists, they sought the universal and immutable.

In England, these ideas are given their most influential expression by the fifteenth-century political theorist, Sir John Fortescue, in On the Laws and Governance of England. Fortescue encourages a hypothetical prince to study law because:

All laws that are promulgated by man are decreed by God. For, since the Apostle says, "All power is from the Lord God," laws established by man, who receives power to this end from God, are also formulated by God. . . . By this you are taught that to learn the laws, even though human ones, is to learn laws that are sacred and decreed of God, the study of which does not lack the blessing of divine encouragement.

Fortescue argues that all men want happiness—which must include virtue—and that justice makes people happy. But since original sin has destroyed man's desire to be virtuous, the discovery of law comes to us through divine grace:

As Pariensis says . . . "The fundamental appetite of man for virtue is so vitiated by original sin, that to him the works of vice savour sweet and those of virtue bitter." Wherefore that some give themselves to love and pursuit of virtues is a gift of divine goodness, not derived from human merit. Are not, then, the laws which, guided and directed by grace, accomplish all these effects worthy to be studied with all application?

A set of metaphors was developed to show how God's grace, as law, flowed through the country. Descriptions of England as a "body politic" find the eventual sustenance of that body in a hierarchal chain that ran from the lowliest Englishman to the king, and from the king to God. In De Republica Anglorum (1565), Sir Thomas Smith used the metaphor of the body politic to describe the king's relationship to the judicial system as follows: "the prince is the life, the head and the authority of all things that be done in the realm of England," adding "this head doth distribute his authority and power to the rest of the members for the government of his realme, and the commonwealth of the politique bodie of England in choosing the election of the chiefe officers and magistrates and in the administration of justice."

William Hughes, in "The Diversity of Courts and Their Jurisdictions" (1642), stated that the king was the "fountain of justice." This metaphor was more generally applied in Sir Francis Bacon's 1612 essay "Of Judicature," where he used it to describe the continuing effect of bad judicial decisions: "One foul sentence doth more hurt than many foul examples, for these do but corrupt the stream, the other corrupteth the fountain." Bacon used the same idea in a 1617 speech to the judges and justices of the peace of England, in which he stressed that itinerant justices—the assize judges who toured each circuit in England twice a year—were more likely to be disinterested and free from local prejudice than justices of the peace who resided where they held court:

The six circuits of England are like the four rivers in Paradise. They go to water the whole kingdom, and pass through the whole land to the distributing of justice for a man's life, his goods, and his freehold, and do justice from the greatest to the groom. Where justice is local and not itinerant, there judges are subject to be affected and infected with the conditions and humours of the country where they are, but justices itinerant in their circuits, they preserve the laws pure, and are not led by affections. . . . This manner of justices itinerant carrieth with it the majesty of the King to the people and the love of the people to the King; for the Judges in their circuits are sent a latere Regis to feel the pulse of the subject and to cure his disease.

Ironically, in the 1621 proceeding in Parliament to impeach Lord Chancellor Bacon, the chief justice of the realm, for taking bribes, Sir Robert Phelps turned the fountain metaphor against Bacon, accusing him of muddying the stream nearest the source, since Bacon, as chief justice, was closest to the king. If the fountains of justice were muddy, how could the streams—the justices of the peace and circuit court judges—be pure?

Though the king was the fountain from which the judges, as vessels, distributed justice throughout the body politic, God was the acknowledged source of the fountain. In his Archeion, William Lambarde flatly states: "It is the office of the King to deliver Justice," and at the end of the book he explains from whom the delivery is being made:

Now therefore, as God is highly to be thanked, that these Flowers of Justice are thus delivered forth and Dispersed abroad: So is hee also heartily to bee prayed unto, that those which occupie the place of Justice by them, may so behave themselves as it may appeare that they doe not exercise the judgments of man, but of God himselfe, the chief justice of the World for so shall the good be succoured, and the evill suppressed, so shall the judges themselves be well acquitted, so shall her Majestie be duly served, and God himselfe honoured aright.

Thus, the administration and enforcement of law in Renaissance England was embedded in a politico-theological framework in which the laws themselves, and trials and verdicts in the most mundane of cases, had national and cosmological significance. This was reflected also in court ritual. For instance, at the border of the first county they entered, circuit judges were met by trumpeters and the sheriff's bailiff, and as they neared the first town where trials would take place—the "assize" town—they were met by the sheriff himself, local officers, and representatives of the local gentry. The parade into town included pikemen and liverymen, specially clothed for the occasion. The judge was greeted with music, bells, and sometimes a Latin oration. The judge then went to his lodgings, where he met with the local gentry to learn the state of the county and to get a sense of the cases he was about to hear. The next stop after this was the church, where the local minister read prayers and the sheriff's chaplain delivered a sermon. These sermons were long, usually forty to fifty pages, though the prizewinner is probably William Pemberton's sermon at the Hertford assizes in 1615: it went 108 pages. With this spiritual boost, the judge was ready to hear cases throughout his circuit, which would comprise five or six counties.

Trials were the occasions in which human judges applied laws, the instruments of God's grace, to the resolution of human conflict and the accomplishment of justice. Courtrooms were the sites where temporal and spiritual authority met, and judges, to do God's will on earth, attempted to disentangle the truth from satanic deception. In keeping with this, criminal trials were displayed to the public as morality plays, illustrating divine principles about the discovery of sin, punishment, grace, and repentance. Trials and executions were presented to the public in such a way as to reinforce Christian doctrine. Trials reminded Christians that they were faced with the same choice between good and evil as their forebears Adam and Eve, and that, like their original parents, they would be held accountable for their decisions. Criminals who repented on the scaffold, who showed "a broken and contrite heart," and thus gave evidence of having accepted God's grace, were said to have "died well." They could look forward to forgiveness and a place in heaven. Each of these conversions affirmed Christian beliefs and legitimated the state as God's servant.

This, of course, represents the ideal functioning of the system, but Englishmen realized, and Shakespeare takes it as his fundamental premise, that people fall far short of what God wants them to be. The human condition, steeped in original sin, affected the judicial system as well as the men who appeared before it. Poor kingship could lead to unfair adjudication and unfair adjudication could undermine the king. Likewise, corruption in the judicial system, for whatever reason, could arouse the wrath of God, whose displeasure might then be visited on the kingdom in rebellion and anarchy. Trials, therefore, did not merely decide the fate of individual criminal defendants or settle the claims of civil litigants, but provided microcosmic readings of the kingdom's health and its conformity with cosmic patterns of order, which were simply manifestations of God's will.

The fairness with which a trial was conducted indicated as much about the health of the body politic as the result. The ethical foundation of trial rested on principles of due process and the rule of law: the conviction that judicial proceedings would be conducted by a set of rules that were known beforehand and bound all participants. In his History of the World, Sir Walter Raleigh distinguished monarchy from tyranny solely on the basis of the manner in which judges administered the law:

The most ancient, most generall, and most approved [form of government] was the Government of one ruling by just Lawes, called Monarchy, to which Tyranny is opposed, being also a sole and absolute Rule, exercised according to the will of the Commander, without respect or observation of the Lawes of God or Men. For a lawful Prince or Magistrate (said Aristotle) is the Keeper of Right and Equity, and of this condition ought every magistrate to be, according to the rule of God's word: Judges and Officers shalt thou make thee in thy cities and these shall judge.

The citizens of Renaissance England believed the primary function of the government was to dispense justice. Good government was equated with fairness in the courts, and that meant judges had to evenhandedly apply the same rules to everyone. For the English, "the rule of law" was no empty piece of rhetoric, but something they regarded as the cornerstone of their judicial system and the birthright of every citizen; it was what distinguished their country from most others in Europe. In France or Spain, the people might be subject to the capricious whims of their rulers, but not in England, where the same laws bound everyone, including the monarch. That the rule of law was of divine origin was established by reference to Deuteronomy 17:18-20, which directed the king of Israel to read the law every day of his life, to revere it, to keep it, "and to not consider himself better than his brothers and turn from the law to the right or to the left."

The idea that human law is the manifestation of natural law, the jus naturale, which has its ultimate origin in the mind of God, was maintained with vigor in England until the end of the eighteenth century. Edmund Burke was its last great advocate. "All human laws are, properly speaking, only declaratory," he said. And although the laws enacted by men were likely to be imperfect manifestations of God's will, human beings had the duty to declare the law of God as accurately as they could. Burke and Fortescue would have understood each other perfectly, for Burke also thought that judges worked in service to God. Burke wrote, "Religion is so far, in my opinion, from being out of the province of a Christian magistrate, that it is, and it ought to be, not only his care, but the principle thing in his care; and its object the supreme good, the ultimate end and object of man himself."

Judgment Day

In Elizabethan and Jacobean England, Judgment Day and a person's day in court served as analogs for each other and also functioned together, since an earthly criminal judgment, which led the defendant to repentance, prepared the way for a more successful judgment in the hereafter. Since most criminals who were judged guilty left quite soon for other realms, divine judgment often followed hard upon the human. In this spiritual shuttle from one jurisdiction to another, human judges and executioners simply completed the first of a two-step process. And even though the wicked might escape the judgment of human courts, God's judgment might overtake them before they died. Richard Hooker, the Church of England's greatest theologian, colorfully described this possibility in a sixteenth-century funeral sermon:

The judgments of God do not always follow crimes as thunder doth lightning, but sometimes the space of many ages comes between. When the sun hath shined fair the space of six days upon their tabernacle, we know not what clouds the seventh may bring. And when their punishment doth come, let them make their account in the greatness of their sufferings to pay the interest of that respect which hath been given them. Or if they chance to escape clearly in this world, which they seldom do; in the day when the heavens shall shrivel as a scroll and the mountains move as frightened men out of their places, what cave shall receive them? what mountains or rock shall they get by entreaty to fall on them? what covert to hide them from that wrath, which they shall neither be able to abide or avoid?

Shakespeare and his countrymen were surrounded by an iconography of the last judgment that had developed in Europe over centuries. The most famous of all its depictions, Michaelangelo's, had its thematic counterparts on the chancels of many English churches. (For example, the chancel arch in St. Peters Church, Wenhasten, Suffolk, shows the dead rising from the earth to meet their maker.) In the early sixteenth century, books with woodcuts illustrating the dance of death and the fifteen signs preceding Doomsday entered England. The Queen Elizabeth Prayer Book, which appeared in five editions during Shakespeare's lifetime, contained a depiction of the dance of death and the last judgment. Mystery play cycles, which Shakespeare may have seen in his childhood, all ended with the last judgment.

The centrality of final judgment in the English Renaissance mind is demonstrated by a great body of art, sermons, poetry, and also drama. Christopher Marlowe's Doctor Faustus (ca. 1589) provides an early example of how the English morality play's concern with divine judgment worked its way into the popular theater of the Renaissance. Doctor Faustus, discontent with his university studies, longs to have the powers of a god. He sells his soul to the devil, signing it away in blood, for twenty-four years of supernatural power and knowledge, but what he gets in return is only a spectacular bag of tricks, which he uses to do little more than amaze people and play practical jokes. The meanness of Faustus's character is demonstrated by the paltry ways he uses his power and the pleasure that it gives him. The play is a countdown toward judgment for Faustus, and Marlowe adapts the medieval morality play, which also builds to judgment, to tell Faustus's story. Like the morality play, Faustus shows the forces of good and evil (in the forms of a good and a bad angel) contending for Faustus's soul; the play has the traditional parade of the seven deadly sins, and a spiritual counselor in the character of an "Old Man," who tries to save Faustus.

But unlike the morality play, in which Everyman is always saved, Faustus is damned, though the Old Man and Faustus's good angel try to save him. The Old Man tells Faustus to leave that "damned art" which has the power to charm his soul to hell; Faustus can still change directions. "Yet, yet thou hast an amiable soul, / If sin by custom not grow into nature." In other words, constant rejection of grace, constant persistence in the same sin, so that sinning grows into one's very nature, inures the heart to any incursion of grace. The result is damnation. Faustus, moved by the Old Man's words, is attempting to repent when up pops Mephistophilis, his demonic tempter, who threatens to "piecemeal tear" Faustus's flesh if he goes any further. Faustus abjectly caves in to the threat and his cowardice does him in. On the eve of his damnation, it is too late for Faustus to repent. His good angel tells him:

Hadst thou affected sweet divinity,
Hell, or the devil, had had no power on thee,
Hadst thou kept on that way, Faustus, behold
In what resplendent glory thou hadst sat
In yonder throne, like those bright shining saints,
       And triumphed over hell.

(5.2.106-11)

Faustus sees Christ's blood streaming in the firmament and cries out "One drop would save my soul, half a drop," but it is too late, and a horde of devils drags Faustus to hell. Doctor Faustus develops two religious themes prominent in English Renaissance literature: that a villain can so harden his heart that he puts himself beyond redemption, and that cowardice is often the deadly enemy of repentance. Shakespeare illustrates the same themes in a scene from Hamlet, where Claudius tries to repent.

Having secretly murdered his brother in order to become king and to take his brother's wife, Claudius is haunted by the knowledge that there will be a final, inescapable judgment. Plagued by his conscience, and knowing that he faces hell, Claudius would like to repent, but cannot. In a scene that owes a lot to Doctor Faustus, Claudius finds that he has cut himself off from God:

O, my offence is rank, it smells to heaven;
It hath the primal eldest curse upon't,—
A brother's murder. Pray can I not,
Though inclination be as sharp as will,
My stronger guilt defeats my strong intent,
And, like a man to double business bound,
I stand in pause where I shall first begin,
And both neglect. What if this cursed hand
Were thicker than itself with brother's blood,
Is there not rain enough in the sweet heavens
To wash it white as snow? Whereto serves mercy
But to confront the visage of offence?
And what's in prayer but this twofold force,
To be forestalled ere we come to fall,
Or pardoned being down? Then I'll look up.
My fault is past—but O, what form of prayer
Can serve my turn? 'Forgive me my foul murder?'
That cannot be, since I am still possess'd
Of those effects for which I did the murder—
My crown, mine own ambition, and my queen.
May one be pardon'd and retain th'offence?
In the corrupted currents of this world
Offence's gilded hand may shove by justice,
And oft 'tis seen the wicked prize itself
Buys out the law. But 'tis not so above.
There is no shuffling, there the action lies
In his true nature, and we ourselves compelled
Even to the teeth and forehead of our faults
To give in evidence.

(3. 3. 36-64)

This speech pulls in the core of the New Testament: grace, repentance, forgiveness, and judgment. Claudius is in the position of Cain. Part of him is desperate for forgiveness, and he would like to repent, but then he would have to confess his crimes, not only to God, but to Denmark. Additionally, Claudius clings to the fruits of the murder: his kingship and his brother's wife. Neither can he give up his motive for the murder, his own ambition. Like many people in the Bible, Claudius is bound to "double business," and he comes to the essential human crux, as defined in the Old Testament and the Gospels: the choice between God and the things of this world. Though the rich young man of Matthew 19:16-28 has not committed Claudius's crimes, he and Claudius face essentially the same choice. The young man can give away everything he has to follow Christ, or he can clutch his possessions. Like Claudius, he opts to keep the immediate safety his possessions provide, eliciting the following comment by Jesus to his disciples: "Verily I say unto you, That a rich man shall hardly enter into the kingdom of heaven. And again I say unto you, It is easier for a camel to go through the eye of a needle, than for a rich man to enter into the kingdom of God." The phrase "to double business bound" describes Claudius's psychological condition, suspended between the desire to repent and the fear to do so, but it also alludes to the law of agency: an honest servant or agent cannot let his own business conflict with his master's. The same metaphor is used in Luke 16:13, a verse that Shakespeare possibly had in mind when writing Claudius's speech: "No servant can serve two masters: for either he will hate the one, and love the other; or else he will hold to the one, and despise the other. Ye cannot serve God and mammon."

What makes Claudius's situation so agonizing is that he cannot repent, which means he will not be forgiven, and will face judgment, like Hamlet's father, with all his sins upon his head. Claudius needs God's help, in the form of grace, to even begin to repent, but as Marlowe's Dr. Faustus discovers, after a long course of thumbing one's nose at God such grace is not forthcoming. Claudius knows that he is destined for hell, and by implication, he must have known that he was putting his soul in grave danger when he killed his older brother. Even knowing this, however, did not stop him. From a spiritual perspective, Claudius has not only sinned, but his logic has failed. He has deliberately chosen to worsen his life and his soul, with all the attendant consequences. Human judges can be bought off—often with a percentage of the ill-gotten gains—but there is no bribing God, and therefore no ultimate escape from one's crimes. Before the battle of Agincourt, Henry V tells the soldier Williams much the same thing about any criminals that might be in his army: "If these men have defeated the law and out run native punishment, though they can outstrip men, they have no wings to fly God." When Falstaff cries out on his deathbed, "God, God," perhaps he has in mind the judgment to which he will soon come.

Shakespeare examines the same situation in Richard III, where he contrasts the choices made by two men whom Richard has sent to kill his brother Clarence. In the second "murderer," Shakespeare portrays a failure to harden the heart: a belief in God—and the possibility of damnation—prevents the would-be killer from carrying out his orders. Having committed themselves to obey Richard, and having his warrant to kill Clarence, the murderers go to Clarence's cell, where he lies asleep:

Second Murderer:	What, shall I stab him as he sleeps?
First Murderer:	No: He'll say 'twas done cowardly, when he wakes.
Second:	Why, he shall never wake until the great Judgement Day.
First:	Why, then he'll say we stabbed him sleeping.
Second:	The urging of that word, "Judgement," hath bred a kind of remorse in me.
First:	What, art thou afraid?
Second:	Not to kill him—having a warrant—but to be damned for killing him, from the which no warrant can defend me.
First:	I thought thou hadst been resolute.
Second:	So I am—to let him live.
First:	I'll back to the Duke of Gloucester [Richard], and tell him so.
Second:	Nay, I prithee stay a little: I hope this passionate humour of mine will change. It was wont to hold me but while one tells twenty.
	(1.4.99-115)

But counting to twenty only helps for a moment. Ultimately, the second murderer's fear of his accomplice, and of Richard, is outweighed by the more distant fear of judgment. Clarence wakes, and says: "I charge you, as you hope to have redemption, / By Christ's dear blood shed for our grievous sins, / That you depart and lay no hands on me: / The deed you undertake is damnable" (1.4.178-81). This additional reminder dissuades the second man, who even tries to save Clarence, but he is too late to stop the first murderer from stabbing Clarence in the back. Yet, the second man's action affirms that the right moral decision can be made, even under pressure.

The drama of choosing between heaven and hell displays a mindset that in sixteenth- and seventeenth-century England was virtually inescapable. Spiritually, people confronted judgment every day of their lives. Earthly trial and judgment externalized and dramatized the most fundamental facts of their relationship with God: that they were "destined unto judgment after all." No wonder that Shakespeare, the most capacious mind in English literature, was so concerned with it.

Shakespeare's scenes of judgment cannot be fully understood without reference to the theological status of law and adjudication in Elizabethan and Jacobean England. Even when we examine judgment in Shakespeare's plays most broadly, as the exercise of a human faculty, we need to be mindful of the theological subtext his audience brought to the theater: that man is a fallen creature whose ability to observe and reason has been severely occluded by original sin. Shakespeare examines judgment in a variety of ways, but this religious framework is always present.

Shakespeare and Moral Wisdom

Today it is typical in the humanities and social sciences to shun any claim that values or truths transcend time and place. Postmodernists, Marxists (the few that remain generally hang out in English departments, along with the last remnants of Freudians and Jungians), anti-foundationalists, and assorted new-leftists hold the view that human nature is so malleable that we are utterly the creatures of circumstance, our minds locked into the ideologies of our own times and places, out of communication with the past or with each other. They leave us with a picture of ourselves as completely isolated and alienated—quarantined in the present and utterly determined by culture: we cannot understand the past, or at best, we can only see it through the dark, ideological glass of our own time. Even if we could understand the past, it would not help us. This way of seeing the world, taught to a generation of undergraduates, is profoundly nihilistic, depressing, and illogical: nihilistic because it erases the past, and in so doing, forecloses any possibility of thinking critically about the present; depressing, because it isolates us from the accumulated store of human experience and wisdom, estranging us from our heritage; illogical, because at the same time theorists assert we cannot understand the past, that heritage is criticized as if it could be understood—and usually charged with being imperialistic, racist, patriarchal, deadeningly dualistic and rational, and generally un-PC. Undergraduates and graduate students who swallow these theories receive a double dispensation of resentment: they get to feel self-righteous and indignant about the history of the West while at the same time maintaining that they are cut off from it. One can feel quite superior from such a perch, and the desire to feel superior to everything is a virulent and Faustian academic disease.

Thus, although before 1970 most scholars recognized Christianity as one of the most influential forces in Renaissance culture, a religion that had to be understood if the Renaissance was to be understood, Shakespeare scholars of the past thirty years have largely ignored it in favor of examining "the margins" of Renaissance culture. As a result, students are far more likely to study cross-dressing in England, the gender quandaries posed by boys playing female roles, and how Shakespeare's plays served as propaganda for the despotic regimes of Elizabeth and James, than they are the religious beliefs that united and divided English society, and through which the most profound critiques of that society were expressed. To remove the most important aspect of the context for Renaissance literature is also to remove the core of that literature from the reach of a student's understanding.

Dr. Samuel Johnson faulted Shakespeare for not taking an explicit moral position in his plays. But Johnson wrote in the eighteenth century, when authors displayed morals in their novels like neon lights. If you missed the point in the story, you were likely to get it again, in essay form, in another chapter. Drama does not lend itself to moralizing by an authorial voice, and Shakespeare has too much finesse to browbeat his audience with an explicit moral. But his plays always raise moral issues and contain a moral dialogue. Characters judge other characters, often by an explicitly Christian code of ethics, and often by an ethics that would have been attributable to natural law—written in the hearts of men, as St. Paul says, and hence as available to antique Romans as sixteenth-century English theater audiences. The ethical tools for making judgments are contained in characters' speeches and actions, often those of the secondary characters, such as Kent in King Lear, Horatio in Hamlet, or Paulina in the Winter's Tale, who remain true to their friends and loyal to the truth. Though Shakespeare's major characters are more complex, and so more riddled with faults, they too have their epiphanies: Hamlet finally understands the value of faith as opposed to calculation; Isabel, in Measure for Measure, learns to forgive; Lear discovers compassion and finds that he is not "everything." Shakespeare's work is a lot less "multi-vocal" and ambiguous than modernists or postmodernists would like to believe, and more committed to Christian ethics than Dr. Johnson thought.

I am optimistic about our ability to understand the past, and I believe that studying it is one way to liberate ourselves from the cultural prisonhouses we have concocted during the last quarter century. One does not have to be religious to believe that morality and wisdom can transcend time and culture—an honest empirical look at the world will achieve the same result. In every culture, people function primarily in groups, and for groups to promote their own survival, cohesion needs to be maintained. It should come as no surprise, then, that basic moral rules promoting group cohesion are universal. Societies do not tolerate murder, theft, slander, fraud, the flouting of parental authority and responsibility, or adultery because they cannot survive long if they do. This list covers six of the Ten Commandments. (I am certainly not arguing that these rules are not broken. But to the extent that they are, and to the extent that a society tolerates or implicitly endorses their being broken, social cohesion is lost, and various social ills, with which we are all too familiar, follow.) In virtually all societies this list could be lengthened: promises must be kept, the injured should be compensated, agents should act in good faith to their masters, and, as Gilbert's Lord High Executioner says, the punishment should fit the crime. An enormous portion of the world's great literature, and virtually all of Shakespeare, examines what happens to individuals and societies when these moral rules are transgressed. To ignore the past, including its moral teachings, or to hold it in contempt, amounts to junking the moral treasure of Western culture. It is unfortunate, to say the least, that in English departments today students are so often cheated of the wisdom they hoped to find in literature, and instead are encouraged to feel morally superior for embracing radically skeptical and deterministic theories of what and how we can know.

Whether we accept or reject the religious views of Shakespeare's contemporaries, Shakespeare still presents the basic legal and moral problems that all societies must confront and at least partially solve in order to exist. This aspect of Shakespeare makes him well worth our consideration, not as an oddity, cast up from a time we can barely touch (and would not want to), but as a fellow human being, gifted with uncanny poetic skill, and who has much to teach us about ourselves, our problems, and our oft erring judgments.

In this book we will examine Shakespeare's presentation of judgment and trial as illuminated by the law, politics, and Christian beliefs of his day, all of which were so intermingled as to be inseparable. The first chapter, on Henry VI, Part 2, will deal with judgment in a kingdom where the rule of law is disintegrating. The second chapter, on Hamlet, will deal with human judgment as a faculty, its tendency to go wrong, and the ways in which it can be subverted. The third and fourth chapters are concerned with comedies in which long trial scenes function as religious allegories: The Merchant of Venice and Measure for Measure. The last two chapters examine three of Shakespeare's late plays. Chapter five looks at women on trial in The Winter's Tale and Henry VIII. Chapter six examines Prospero, in The Tempest, as a Christian judge who is preparing for his own final judgment. All quotations from the Bible are from the one Shakespeare knew, the Geneva Bible of 1560. To give the reader some help, I have modernized some of the spellings.

During the course of the book, I will at times have some harsh things to say about current historical and feminist criticism. I have no objection to criticism that helps us to more adequately contextualize and thereby understand Shakespeare's work, whether it bears on Shakespeare studies or an understanding of Tudor and Jacobean politics or the relations between men and women during the Renaissance. Certainly some historical and feminist criticism does this, in whole or in part. What I object to is the use of Shakespeare as a soapbox, for the conspicuous display of trendy political positions, or more commonly, the distortion of Shakespeare's work, to accommodate arguments criticizing present social arrangements. Certainly there is much to criticize, but such criticism can be more directly and astutely accomplished by political thinkers whose education and background have given them the wherewithal to do it.

I suggest a job change for people who hold teaching positions in departments of literature but who are more interested in the advancement of certain political causes than in the books they teach. Let them enter politics, become lawyers, journalists, social workers, soldiers, even political scientists—or let them simply argue as well-informed citizens, outside the auspices of literary education. They could free themselves from the confines of literary criticism and more directly address the social injustices they recognize and seek to remedy. Rather than being limited to the confines of a classroom or a seminar at the MLA convention, they could loose their cloistered virtue to the world, and the world could respond. The rest of us could get on with enjoying Shakespeare.

Return to The Trial of Man Home