Custom, Common Law, and the Constitution of English Renaissance Literature 0198861435, 9780198861430

Citation preview

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Custom, Common Law, and the Constitution of English Renaissance Literature

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

L AW A N D L I T E R AT U R E The Law and Literature series publishes work that connects legal ideas to literary and cultural history, texts, and artefacts. The series encompasses a wide range of historical periods, literary genres, legal fields and theories, and transnational subjects, focusing on interdisciplinary books that engage with legal and literary forms, methods, concepts, dispositions, and media. It seeks innovative studies of every kind, including but not limited to work that examines race, ethnicity, gender, national identity, criminal and civil law, legal institutions and actors, digital media, intellectual property, economic markets, and corporate power, while also foregrounding current interpretive methods in the humanities, using these ­methods as dynamic tools that are themselves subject to scrutiny. Series Editors Robert Spoo, University of Tulsa Simon Stern, University of Toronto

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Custom, Common Law, and the Constitution of English Renaissance Literature S T E P HA N I E E L SK Y

1

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Stephanie Elsky 2020 The moral rights of the author have been asserted First Edition published in 2020 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2019956697 ISBN 978–0–19–886143–0 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

For Ari and Felix

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Acknowledgments The benefit of working on a book since what feels like time immemorial is the many debts of gratitude I have accumulated in that time. I am so delighted to finally have a chance to enumerate them here. First and foremost, I would like to thank Margreta de Grazia, who has had a profound influence not only on my thinking about this period but also on my thinking about how we think about periods. I continually seek to live up to the model of intellectual curiosity, generosity, and integrity that she has provided. Her unstinting commitment to the intellectual lives of her students combined with her deep care for their personal well-being is nothing short of astonishing. The longer I spend in academia, the more deeply I come to admire it. From Philadelphia to London, she has been my best critic and supporter. This project began as a dissertation, with Margreta as its director, and I thank the rest of my dissertation committee for going well beyond the call of duty: Zachary Lessary, Ania Loomba, and Melissa Sanchez. Rita Copeland, Jed Esty, Suvir Kaul, Heather Love, Peter Stallybrass, Emily Steiner, and David Wallace were sources of support and inspiration throughout grad school and afterward. I had the privilege of being at Penn during yet another renaissance of Renaissance graduate students, and I am particularly grateful to Catherine Nicholson, Thomas Ward, Urvashi Chakravarty, Bronwyn Wallace, Megan Cook, Miriam Jacobson, and Marissa Nicosia for friendships marked by generosity and intellectual ­excitement. My path to this project can be said to have begun when I had the good fortune to be taught as an undergraduate by Julie Crawford, Jenny Davidson, Jean Howard, David Kastan, Julie Peters, and Jim Shapiro. My academic career has taken me to a number of different institutions, and at each I was fortunate to find camaraderie and mentorship. Thank you to Jonathan Wilson, Kevin Dunn, and Judith Haber at the Center for the Humanities and the English Department at Tufts; to that excellent trio of female role models at UC-Davis, Margie Ferguson, Fran Dolan, and Gina Bloom, as well as Seeta Chaganti, Liz Miller, Matthew Stratton, and Joshua Clover. At Amherst College, I’d like to thank the inimitable members of the Department of Law, Justice, and Social Thought: Austin Sarat, Adam Sitze, Martha Umphrey, Lawrence Douglas, David Delaney, and the late Nasser Hussain. I’d also like to thank Anston Bosman, Jane Degenhardt, and Adam Zucker for welcoming me into the Western Massachusetts Renaissance community. At the Freie Universität, I would like to thank Anita Traninger, Andrew James Johnston, Andreas Mahler, and Björn Quirig.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

viii Acknowledgments At the University of Wisconsin, I was surrounded by a vibrant group of Renaissance scholars, including Elizabeth Bearden, Karen Britland, Joshua Calhoun, and Ullrich Langer, all of whom I thank for contributing to my thinking in this project. Thank you especially to David Loewenstein for his mentorship during his time there and afterward. I would like to thank the UW Center for the Humanities First Book Program for giving me the opportunity to bring together scholars from Madison and elsewhere to read an earlier version of this manuscript. Thank you to Russ Castronovo, Lynn Keller, Mitra Sharafi, Ralph Gruenwald, and Daniel Kapust for their incisive feedback. I am also deeply grateful to Caroline Levine, Susan Bernstein, and Lisa Cooper for their guidance; and to Jordan Zweck, Colin Gillis, Ramzi Fawaz, Aida Levy-Hussen, Bridget Fielder, Jonathan Senchyne, Nandini Pandey, and Danielle Evans for their inspiring friendship. Thank you, too, to the excellent undergraduate and graduate students at all of these institutions. Most recently, I have found a wonderful home at Rhodes College. Leslie Petty has been a supportive chair in all ways, while Scott Newstok has been an ideal Renaissance colleague and Brian Schaffer an exemplary dean. My writing group, Hannah Barker, Lori Garner, Judy Haas, Clara Pascal-Arguente, and Laura Loth, provided much needed sustenance and company during the long process of book revision. Amy Benson, Chanelle Benz, Gordon Bigelow, Marshall Boswell, Chris Brunt, Rebecca Finlayson, Jason Richards, Rashna Richards, Seth Rudy, and Caki Wilkinson make me look forward to coming to my office every day. Thank you, too, to the English Department at University of Mississippi, especially Ivo Kamps and Karen Raber, for making me feel so welcome in my move to the mid-South. Many people have read many versions of parts of this book or spent hours ­discussing it with me. I want to thank especially Bradin Cormack and Victoria Kahn for their infallible advice on a full draft of the manuscript as part of the UW First Book Program. J.K. Barret, Crystal Bartolovich, Cathy Nicholson, Debapriya Sarkar, and Thomas Ward also deserve special mention for their invigorating responses to the project, which always kept me excited about continuing to work on it during moments of frustration and confusion. My work is all the stronger for the engagement of Kevin Curran, Kathleen Davis, Rayna Kalas, Lucy Munro, Björn Quirig, and Sebastian Sobecki with it during a 2016 conference I organized at the Freie Universität in Berlin, “Common Eras: Law, Literature, and the Rhetorics of Commonality in Medieval and Renaissance England.” Reid Barbour, Ayelet Ben-Yishai, Katie Brokaw, Jim Bromley, Drew Daniel, Topher Davis, Heather Dubrow, Will Fisher, Penny Geng, Linda Gregerson, Jane Grogan, Liora Halperin, Steve Hindle, Gavin Hollis, Jeff Knight, András Kiséry, Tatiana Korneeva, Rebecca Lemon, Russ Leo, Ivan Lupić, Julia Lupton, Jenny Mann, Carla Mazzio, Steven Mullaney, Molly Murray, Christopher Pye, Ben Robinson, Amy Rodgers, Jennie Row, Marjorie Rubright, Michael Schoenfeldt, Sasha Senderovich, Dan Shore, Nigel Smith, Alan Stewart, Gin Strain, Valerie Traub,

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Acknowledgments  ix Scott Trudell, Henry Turner, Wendy Wall, Brian Walsh, Tiffany Werth, Will West, and Jessica Wolfe have all offered feedback, encouragement, and general good cheer at multiple points during this project. I have also benefited from thoughtful audiences at the Renaissance Society of America Annual Convention; the Modern Language Association Annual Convention; Indiana University’s Renaissance Studies Program; Miami University’s Early Modern Studies Collective; the Renaissance Center at the University of Massachusetts; and the Early Modern Seminar at University College London. Thank you to Penelope Anderson, Hall Bjørnstad, Jim Bromley, Catherine Gillepsie, Jane Degenhardt, Katherine Ibbett, and Alexander Samson for their invitations to share my work in these venues, and to Chris Pye, Rebecca Lemon, and Penny Geng for organizing generative and productive seminars at the Shakespeare Association of America’s Annual Convention. I received essential and generous support from UW-Madison’s Anonymous Fund; the Andrew W. Mellon Foundation and VolkswagenStiftung; and the Henry  E.  Huntington Library. Thank you to English Literary Renaissance; Law Culture, and the Humanities; and Spenser Studies for permission to reproduce previously printed material here, and to the readers and editors who helped strengthen that material. An earlier version of Chapter 2 appeared as “Common Law and the Commonplace in Thomas More’s Utopia” (English Literary Renaissance 43.2, May 2013); of Chapter 3 as “ ‘Wonne with Custome’: Conquest and Etymology in the Spenser-Harvey Letters and A View of the Present State of Ireland” (Spenser Studies Vol. XXVIII, 2013); and of Chapter 6 as “Ernst Kantorowicz, Shakespeare, and the Humanities’ Two Bodies” (Law Culture and the Humanities 13.1, 2017). Friendships old and new have sustained my spirit during the many moves that accompanied the process of writing this book. Thank you to GerShun Avilez, Rachel Buurma, Laura Heffernan, Ori Weisberg, Ilana Blumberg, Alan Itkin, Mira Seo, Carrie Wood, Mearah Quinn-Brauner, Ari Eisenberg, Charles Hughes, Cristie Ellis, Dan Stout, Rachel Federman, Daniella Kevelson, Barbara Chubak, and Rachela Elias. I am profoundly grateful to Simon Stern and Robert Spoo for believing in this project and giving it a home in their Law and Literature series. Their feedback on the manuscript has been invaluable. Thank you to Kevin Curran, who kindly revealed himself as one of the readers, for his generous and generative report and an anonymous reader for sharing their wealth of knowledge of English legal ­history. Thank you to Jacqueline Norton at Oxford University Press for guiding the project through publication, and Aimee Wright, Christine Fleischer, Emily Loney, Kate Lechler, Claire Cronin, Michal Loren, Francesca White, Scott Garner, and everyone who was involved in preparing the manuscript. I could not have finished this project without the support of Anne Amienne. Finally, my family has lived through the ups and downs of this project, ­celebrating my successes and feeling my setbacks as their own. My sister Julie has

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

x Acknowledgments long been my best friend and is now a valued colleague as well. My father, Martin, provided me with a model of how to be an academic with integrity and love, while my mother, Harriet, taught and continues to teach me to pursue my goals with a full heart. I thank them for their nourishing combination of support, empathy, and good cheer. My in-laws Mark and Mindy, Eric, Sima and Jonathan and their children, Moses, Victoria, and Gabriel all deserve my gratitude for bearing with this project, while providing excellent distractions from it. Anyone who has shared their work with Ari Friedlander knows how lucky I am to have him as my own in house interlocutor. This book would not be what it is without his fiery intellect and steadfast care—nor would I be. If Ari’s transformative presence in my life well predates this project, Felix arrived on the scene just as it was being finished and in short order life without his curious eyes and irresistible smile has become unimaginable. I dedicate this book to them both, my greatest happiness and joy.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Contents List of Figures

Introduction: Custom and Renaissance Literature 1. Time Out of Mind: Custom and the Politics and Poetics of Duration

xiii

1 20

2. The Commonwealth of Custom in Thomas More’s Utopia 43 3. Inventing Custom: Meter, Etymology, and Conquest in the Spenser–Harvey Letters and Spenser’s A View of the Present State of Ireland 76 4. Performing Custom: Poetry and the Aporia of Constitutional Authorship in Sidney’s Old Arcadia 103 5. Cultivating Custom: The Poetics of the Commonplace in Isabella Whitney’s A Sweet Nosgay 133 6. Forgetting Custom? Rebellion, Revolution, and Narratio in Sir Thomas More and Shakespeare’s Hamlet 159 Conclusion: Custom’s Futures

194

Bibliography 199 Index 217

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

List of Figures 2.1 Manicule in Utopia (1556), trans. Ralphe Robinson, C1v, © British Library Board

71

2.2 Handwritten note in Utopia (1551), trans. Ralphe Robinson, C1r, © British Library Board

72

4.1 Marginalia in Cambridge Manuscript of the Old Arcadia, 42v, By permission of the Master and Fellows of St John’s College, Cambridge

130

4.2 Marginalia in Cambridge Manuscript of the Old Arcadia, 43r, By permission of the Master and Fellows of St John’s College, Cambridge

131

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction Custom and Renaissance Literature

It is difficult to imagine a more damning portrait of custom than the one that opens the second edition of Milton’s The Doctrine and Discipline of Divorce. In his epistle to Parliament and the Assembly, he laments that Custom, rather than v­ irtue and conscience, has “drawn the most Disciples” and has been “silently receiv’d for the best instructr.” For Milton, this is cause for concern: Custom is the perverse teacher who provides “bad nourishment,” causing her students’ faces to “puff up unhealthily.” She is the “swolln visage” of “counterfeit knowledge” that fills “each estate of life and profession, with abject and servil principles.” Worse yet, Custom exacerbates our fallen condition: adherence to it not only sinks Man “farre beneath the condition wherein either God created him” but also where “sin hath sunke him.” As if this were not sufficient to drive the point home, Milton finally ­compares Custom to the serpent in the Garden of Eden. In a parody of the body politic, Custom becomes the “mere face” of “Serpentine” Error’s headless body. “Error,” Milton asserts, “supports Custome, Custome countenances Error.”1 Just as the serpent in Paradise Lost, that “subtlest Beast of all the Field” whose “sly/ Insinuating” reflects “his fatal guile,” “the suttle insinuating of Error, and Custome” obscures and blots out truth.2 Milton’s rejection of custom is part of the reason that modern readers value him so highly, for it is the corollary to his commitment to liberty and reason. Nigel Smith summarizes the case in Is Milton Better than Shakespeare?: [Milton] is the poet who places liberty at the center of his vision . . . Milton’s ­presence may be discerned in the formation of much of the English speaking world’s understanding of how the individual belongs to the world and how a just society should be ordered. He considers the nature or even necessity of ­rebellion, the need to overcome the deadening hold of custom, and the belief that ­liberty

1 J. Milton, The Doctrine and Discipline of Divorce (1643), in Complete Prose Works of John Milton, Vol. 2, ed. E.  Sirluck (New Haven: Yale University Press and London: Oxford University Press, 1959), 222–3. 2 J. Milton, Paradise Lost, ed. M. Hughes (Indianapolis and Cambridge: Hackett Publishing, 2003), 9.560; 4.347–8; 4.349; Milton, Doctrine and Discipline, 224. Custom, Common Law, and the Constitution of English Renaissance Literature. Stephanie Elsky, Oxford University Press (2020). © Stephanie Elsky. DOI: 10.1093/oso/9780198861430.001.0001

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

2  Custom, Common Law, and the Constitution comes through the confrontation of contrary experiences and contrariness itself. (emphasis mine)3

Although the concept of liberty consistently receives more attention from critics, Milton’s attitude toward custom plays a similarly important role in making him both a modern figure and a figure for modernity. Like us, he recognizes that ­custom entrenches the status quo, whether against divorce or in favor of monarchy. According to Milton, again in The Doctrine and Discipline of Divorce, custom “chase[s] away all truth and solid wisdome out of humane life” and cries down “the industry of free reasoning under the terms of . . . innovation.”4 Custom invokes the dead weight of the past; modernity throws off custom’s chains as it moves forward into a new future. We love Milton, at least in part, because Milton hates custom. All this makes “custom” seem a distinctly unpromising focus for a book on early modern literature. Scholars tend to be interested in tracing change, and ­custom seems to be largely about remaining exactly the same. Moreover, perhaps because of our very desire to identify the sixteenth century as “early modern,” we have overlooked custom’s importance, imposing upon it our modern sense of custom as deadening, static.5 Yet, this book will argue, some of Milton’s most important predecessors would have been surprised by his utter contempt for ­custom. Edmund Spenser especially may have been alarmed to see The Faerie Queene’s description of Error with a female head and serpent’s body repurposed to describe Custom.6 Not only Spenser but also Thomas More, Philip Sidney, Isabella Whitney, and William Shakespeare all saw custom not as an impediment to truth or change, but rather as a source of poetic creativity and political possi­ bility. It was an engine for literary production, justifying a startling array of fictive and formal experiments. Far from static and deadening, custom was flexible, dynamic, and enlivening. Indeed, custom was a supremely generative literary force for a range of Renaissance genres, from utopian fictions and poetic debates to romances and stage dramas. To the extent that scholars are familiar with custom’s importance to Renaissance literature, it has been treated as a kind of synonym for popular tradition. Both Robert Weimann in Shakespeare and the Popular Tradition and François Laroque 3 N.  Smith, Is Milton Better than Shakespeare? (Cambridge, MA: Harvard University Press, 2008), xv. 4 J.  Milton, Doctrine and Discipline, 223–4. See also J.  Milton, Areopagitica, in John Milton: The Major Works, eds. S.  Orgel and J.  Goldberg (Oxford: Oxford University Press, 2003), 236–72; and J. Milton, Tenure of Kings and Magistrates, in John Milton: The Major Works, 273–307. 5  Indeed, in overlooking custom we are joined by Raymond Williams, who leaves it out of his ­keywords entirely. Williams does not include words whose meanings have, in his view, “deteriorated” since the onset of the eighteenth century. R. Williams, Keywords: A Vocabulary of Culture and Society, revised ed. (Oxford: Oxford University Press, 1983), 269. 6 E. Spenser, The Faerie Queene, ed. A.C. Hamilton, 2nd ed. (London: Routledge, 2001), 1.i.14–15.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  3 in Shakespeare’s Festive World trace the persistence in the urban, professional commercial theater of rural traditions that had disappeared during the Protestant Reformation.7 Yet custom has another valence that is less familiar to literary scholars, though it has been the subject of extensive research and debate by legal historians of the period: custom as a kind of law. This meaning, which lay at the heart of English common law in particular, I argue, lent custom a counterintuitive power in the literary realm. In seeking to persuade readers that legal custom was an indispensable concept to early modern literature, I am profoundly indebted to the work of critics such as Bradin Cormack, Lorna Hutson, and Luke Wilson, which has shown us how literary changes during the Renaissance were informed by the development of particular early modern legal concepts, including contract law, jurisdiction, and forensic rhetoric.8 But this book also proposes that the liter­ ary use of the legal concept of custom in particular invites us to reexamine what we mean by terms like “change” and “development”—and even “early modern” and “the Renaissance.” It does so because, as we shall see, the concept of custom ultimately unsettles our still dominant narrative of literary periods.

I.  Custom, Common Law, and the Problem of Novelty Two terms, custom and common law, are central to this study, so although they will be unfolded in more depth in Chapter 1, it is worth pausing briefly to offer a short, provisional definition of them both before moving on to explain the source of their appeal to early modern writers. Common law governed the ownership, possession, transfer, and inheritance of that most important category of property: land. Primogeniture is probably best known among these laws, which also ­covered various types of possession, such as fee simple, fee tail, and different forms of tenancy and copyhold. Common law was also an important means by which questions that were important for conquest, such as whether someone could own land in two kingdoms, were addressed. Common law was distinct from other European systems law; unlike civil law, which was based on a set of authoritative texts, common law was considered “general custom” or the “custom of the realm.” In the early seventeenth century, Sir John Davies put it bluntly: “the Common law of England is nothing else but the Common custome of the Realme” 7 R. Weimann, Shakespeare and the Popular Tradition in Theater: Studies in the Social Dimension of Dramatic Form and Function (Baltimore: The Johns Hopkins University Press, 1978); F.  Laroque, Shakespeare’s Festive World: Elizabethan Seasonal Entertainment and the Professional Stage (Cambridge: Cambridge University Press, 1991). 8 B. Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509–1625 (Chicago: University of Chicago Press, 2007); L. Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford: Oxford University Press, 2007); L.  Wilson, Theaters of Intention: Drama and the Law in Early Modern England (Stanford: Stanford University Press, 2000).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

4  Custom, Common Law, and the Constitution (emphasis mine).9 The term encapsulates multiple interdependent elements. Custom was ius non scriptum (unwritten law), as opposed to continental civil and canon lex scripta (written law). That is, common law possessed no authoritative text to which judges and lawyers might refer. Instead, they relied on a com­bin­ ation of, first, what was called “common learning” or “common erudition,” as J.H. Baker describes it, “the settled learning of the inns of court,”10 where students and lawyers alike studied their craft, and, second, different types of records that had accumulated over the centuries, including official plea rolls and Year Books and (their successors) reports, the latter two of which were compiled by lawyers and judges. The content of common law was thought to be made up of the c­ ollected, uncodified practices of the English people and the wisdom of generations of ­lawyers and judges.11 Consequently, common law as custom was considered the law of the land or the kingdom, rather than of the king; it was thought “to deriv[e] its authority from its acceptance by the land or the kingdom and its ­people over time.”12 “Common usage” and duration over time were both central to custom. Because it does not consist of “Monuments in writing,” as one seventeenthcentury jurist put it,13 custom could be imagined to have no beginning, and hence to have existed since “time immemorial,” “time out of mind,” or “beyond the memory of man.” Finally, in a period that privileged antiquity, ­custom’s im­me­ mor­ial status conferred supreme authority on common law (at least according to its practitioners).14 But why should the formulation of common law as the “common custom of the realm” have any particular significance for early modern literary writers? I argue that it is because of the peculiar temporality assigned to legal custom, its existence since “time out of mind,” “time immemorial,” or “beyond the memory of man.” Understanding why custom’s temporal schema was so appealing requires a ­significant shift away from our modern perspective, which often treats in­nov­ ation, in and of itself, as valuable. Renaissance art is celebrated for its innovative qual­ities, yet sixteenth-century English literary writers likely would have balked at this description of their work. In the political realm, the writer John Hayward 9  Sir J. Davies, “Preface,” in Le Primer Report des Cases & Matters en Ley Resolues & Adiudges en Les Courts del Roy en Ireland (Dublin: John Franckton, 1615), 2. 10 J.H. Baker, The Oxford History of the Laws of England: 1483–1558 (Oxford: Oxford University Press, 2003), 469. 11  This concept is discussed extensively in Chapter 1, section I. Throughout the footnotes to this Introduction, I will cross reference more detailed discussions of legal and political concepts that take place in Chapter 1. 12  P. Brand, “Law and Custom in the English Thirteenth Century Common Law,” in Custom: The Development and Use of a Legal Concept in the Middle Ages, eds. P.  Andersen and M.  MünsterSwendsen (Copenhagen: DJØF Publishing, 2009), 26. See Chapter 1, sections IV and V for a further discussion of the nature of common law’s authority. 13 M. Hale, The History of Common Law in England, ed. C.M. Gray (Chicago: University of Chicago Press, 1973), 16. 14  The concepts of time immemorial and duration are discussed extensively in Chapter 1, sections II and III.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  5 associated novelty with the restless rabble, noting that “the multitude [is] alwaies enclined to innovation” and invoking Augustus’s definition of a “good citizen” as one who “desireth not a present state to bee changed.”15 When instituted by a prince, novelty could prove disastrous, as Philip Sidney demonstrates in his Arcadia with the calamities that befall even a “well-tempered . . . people” after their ruler abdicates his throne, leaving a constitutional void in his wake.16 In the religious realm, Protestant reformers insisted that they were returning to the “primitive church”: “[T]he religion presently taught & professed in the Church at thys present,” John Foxe asserted, “is no new reformation of thinges lately begonne, which were not before, but rather a reduction of the Church to the Pristine State of olde conformitie” (emphasis mine).17 In Actes and Monuments, he wrote: “[W]e have sufficient matter for us to shew that the same form, usage and institution of this our present reformed Church, are not the beginning of any new church of our own, but the renewing of the old ancient Church of Christ.”18 This suspicion of novelty extended to and was recognized in the poetic sphere. Novelty was a contested category, as George Puttenham’s discussion of his new English names for classical poetic and rhetorical figures demonstrates. Puttenham knew he had to acknowledge as problematic the “strangeness” and “novelty” of the English names that he had devised for classical poetic and ­rhetorical figures.19 He also saw fit to reassure his readers that they were intended “to satisfy not the school, but the court, whereas, they know very well, all old things soon wax stale and loathsome, and the new devices are ever dainty and delicate.”20 The fickle royal court is always on the lookout for the latest thing; his English designations are intended for them. The schools, by contrast, are serious places. They recognize the value of the old and require no dainty devices to ­sustain their interest. In this atmosphere, it made sense that writers would emphasize not the novelty of their work but its connection to the past, and, indeed, this is precisely what they did. As legal historians have shown, common lawyers and politicians called upon custom as they sought to broaden their authority in unprecedented ways. So, too, literary writers invoked custom to justify a range of experiments. Puttenham, for example, reassures his readers that the “novelty” of his English terminology “in process of time and by custom will frame very well.”21 When

15 J. Hayward, The Second Part of the Life and Raigne of Henry IV, ed. J.J. Manning (Cambridge: Cambridge University Press, 1995), 199–200. 16 P. Sidney, The Old Arcadia ed. Katherine Duncan-Jones (Oxford: Oxford University Press, 1994), 4. I discuss this issue in detail in Chapter 4. 17 J. Foxe, The Gospel of the Fowr Evangelistes (London: John Day, 1571), Av5. 18  Qtd. in L. Manley, Convention, 1500–1750 (Cambridge, MA: Harvard University Press, 1980), 71. 19 G.  Puttenham, The Arte of English Poesie (1589), eds. F.  Whigham and W.  Rebhorn (Ithaca: Cornell University Press, 2007), 242. 20  Ibid., 244. 21  Ibid., 242.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

6  Custom, Common Law, and the Constitution ­ iscussing the imperfect match between English words and classical meter, he d likewise credits custom with a great deal of authority for cementing poetic change: Now again, if ye will say to me that these two words liberty and conquerors be not precise dactyls by the Latin rule, so much will I confess to, but since they go current enough upon the tongue, and be so usually pronounced, they may pass well enough for dactyls in our vulgar meters, and that is enough for me, seeking but to fashion an art, and not to finish it, which time only and custom have authority to do, especially in all cases of language, as the poet hath wittily remembered in this verse  -si volet usus Quem penes arbitrium est et vis et norma loquendi. [. . . if Usage so will it,/in whose hands lie the judgement, the right, and the rule of speech.]22

If Puttenham can “fashion an art,” only time and custom can “finish it.” And lest his readers think this idea is an innovation in and of itself, he calls upon Horace, “the poet,” who tells us that use is the only arbiter of speech, to back him up. In other words, custom and change go hand in hand. The authors this book focuses on appeal to custom at just those moments when innovation to native literary forms and culture seems to us, as modern readers, most glaring. Time immemorial furnished custom with a unique and paradoxical capacity: to make familiar new political forms. During a period when novelty was con­sidered suspect, even insurrectionary, the concept of legal immemoriality proved valuable to literary writers who were grappling with the history of their generic forms, their language, and their land. It allowed them at once to reimagine past ruptures as continuities and to postulate changes ranging from the classicizing of English verse to the appearance of a laboring woman’s verse in print. Perhaps most unexpect­ edly, a form of law that was considered staunchly native helped open up a space for sixteenth-century writers to participate in the project of classical literary human­ ism. I argue that sixteenth-century artists saw the present as suffused with the aura of the past. Their literature connects with and embodies the past-as-present.

II.  The Politics of Custom and the Commons In Shakespeare’s Cymbeline, two young rustics, Arviragus and Guiderius, come upon a boy who has snuck into their cave in the Welsh wilderness. The next day, 22  Ibid., 210; for the translation of the lines of verse, see Horace, Ars Poetica, in Satires. Epistles. The Art of Poetry, trans. H.R. Fairclough, Loeb Classical Library 194 (Cambridge, MA: Harvard University Press, 1926), ll. 71–2.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  7 they insist on staying home with their charge rather than going out hunting with their father as usual, but the boy protests this change in routine. “[T]he breach of custom/Is breach of all,” he sagely explains.23 This aphoristic comment proclaims the paramount importance of custom. Yet it is also an ironic moment since the rustics are no rustics but the sons of the king, and the young boy is in fact a woman in disguise, and no less than their exiled sister Imogen. Perhaps appropri­ ately for a play that itself breaks with generic conventions,24 in Cymbeline charac­ ters breach custom at almost every opportunity: Belarius, the man Arviragus and Guiderius believe to be their father, does so by stealing the princes from court as infants and raising them in a cave; Imogen by cross-dressing; and Arviragus and Guiderius themselves by raising the specter of incest with their desire for a young boy who also happens to be their sister. One might think, then, that Shakespeare is mocking Imogen’s blind faith in custom. Yet all these breaches of custom turn out to be in service of the continuities of royal lineage, and, moreover, a royal ­lineage untouched by court intrigue or, even more crucially, by foreign, Roman influence. That Imogen utters these aphoristic words at the height of the nexus of these breaches speaks not only to the unexpected power of custom, but also to its political resonance. Although the young princes’ custom of hunting is by no means a legal one, it is, as we shall see in this section, consonant with legal ideas of custom. But, as will be discussed here, custom was also a deeply political ­concept. This book explores the ways that legal custom as a political concept ­suffused both other ideas about and discussion and depictions of a variety of ­customs. Rather than identify and then isolate legal custom from other kinds of custom, I aim to show their interpenetration, especially because of the former’s political multivalence. If a key concept of legal thought shaped early modern ­literature, this literature, in turn, transformed a legal concept into an evocative mythopoetics. Common law’s very status as custom proved key to the development of early modern England’s constitutional politics. It played an integral role in sixteenthcentury thinking about the nature of the common weal. The laws governing land ownership, transfer, and inheritance were increasingly theorized and imagined as a collection of national customs. In Glenn Burgess’s words, common law “constituted the English polity.”25 Another key term for this book that emerges from the understanding of common law as custom is the concept of the ancient constitution. The ancient constitution is the term that modern scholars use to describe the belief that England’s common law and political institutions like parliament were 23 W.  Shakespeare, Cymbeline, in The Norton Shakespeare, eds. S.  Greenblatt, W.  Cohen, J.E. Howard, and K.E. Maus (New York and London: W.W. Norton, 1997), 4.2.10–11. 24  The play as a whole, which stitches together tragedy and comedy, poses a problem for generic custom. This uneasy status is reflected in the First Folio’s including it in its list of “Tragedies.” 25 G. Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642 (University Park: Pennsylvania State University Press, 1992), 4.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

8  Custom, Common Law, and the Constitution the long-standing, native practices of the people, in place not solely because of monarchical authority but as a result of consent. By asserting that England’s ­central legal and political institutions, such as trial by jury, had existed since time immemorial, politicians, lawyers, and historians (and sometimes a single figure was all three) laid claim to the view of the English past as continuous rather than fractured by multiple conquests at the hands of the Saxons, Danes, and Normans.26 As a result, they saw its political structures as existing by virtue of enduring consent rather than the coercion of a monarch or conqueror. As we shall see throughout this book, the ancient constitution was crucial to debates about the nature and limits of England’s sovereignty both within and outside its borders. These debates addressed central issues such as the extent of the m ­ onarch’s authority, the possibilities of political and religious resistance, and the legitimacy of colonial expansion, especially in Ireland. Custom was the basis of common law’s political meaning. This book shows that far from being ignorant of such political stakes, these writers were deeply aware of them; they include among their number a lawyerjudge-politician (More), a colonial administrator (Spenser), and a courtier and ambassador (Sidney). Although Isabella Whitney and Shakespeare were not directly involved with the political sphere, Whitney’s brother Geoffrey held (or attempted to hold) several political appointments, and Shakespeare’s drama, well known for its political engagements, often turns to many of the texts that celebrate England’s ancient constitution for source material.27 Taken together, their writ­ ings evince a profound knowledge of custom’s political dimension, especially its role in constitutionalism—which Alan Cromartie defines as “(t)he claim that ordinary law defines the monarch’s power”28—and the profound and widespread implications of that role. Custom encompasses what, for these writers, can be best described as legalpolitical practices. Thus, I place a great deal of emphasis on how literary writers explore the implications of law in the political realm. They intervene in political debates on the level of content, especially in their depictions of legal and political crises, whether Laertes’ rebellion in Shakespeare’s Hamlet, the constitutional 26  See especially 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). While he influentially introduced the argument in the 1957 version of this book that the temporal schema of common law was connected to the English view of their past and the nature of their governance, many others have followed and refined it. I discuss Pocock and the ancient constitution in Chapter 1, sections III and IV. 27  To be sure, as a London-trained lawyer, Thomas More would have been most intimate with the detailed practicalities of legal custom, but basic premises of common law practices were well known since they touched most people’s lives. More significantly for my purposes, the concepts of legal ­custom and the ancient constitution were widespread and available in a range of different types of texts. 28 A. Cromartie, The Constitutionalist Revolution: An Essay on the History of England (Cambridge: Cambridge University Press, 2006), 9.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  9 unrest that frames Sidney’s Old Arcadia, or even England’s attempts to rule Ireland in Spenser’s A View of the Present State of Ireland. But they intercede most powerfully on the level of literary form, including the intricacies of meter, the tools of rhetoric, and the protocols of genre. Custom enables these experiments in form, and, in turn, these experiments disclose the legal and political processes by which custom gains its formidable power. They often illuminate the difficulties of sustaining some of custom’s constitutive binaries: native and foreign, written and unwritten, conquest and consent. This book, then, does not argue that every liter­ ary allusion to custom must necessarily be to this legal-political concept. Instead, I identify the invocation of common law ideas of custom via rhetorical and struc­ tural patterns in a text, specifically the appeal to time out of mind, the contempla­ tion of the relationship between monarchical and common authority, and the binding nature of repetitive practices. These literary invocations and experiments reveal the difficulty of sustaining binaries during a time when England is both confronting its own past as a conquered nation and fashioning its identity as an incipient imperial power. Writings by More, Whitney, Spenser, Sidney, and Shakespeare thus provide a counterweight to the celebration of custom in the legal realm, often revealing its tensions and contradictions. This brings me to the final, perhaps most vexing, concept in the lexicon, or nexus, surrounding custom that I propose is crucial to early modern poiesis: com­ mon. Following the complexity of this term in the legal and literary discourse that I trace, common takes on multiple meanings in this book. The first way in which I attend to the term is as a descriptor for law. Common law was thought to be com­ mon in two senses. First, it obtained throughout the realm, and in that sense was distinct from local or manorial law.29 Second, it arose not solely from the ­monarch and his will, but also from that of the English people and, thus, had a common source.30 But if early modern lawyers celebrated common law as the “common custom of the realm,” these writers ask what it means to consider ­custom “com­ mon” and what constitutes the “realm.” The legal-political story this book tells alongside and intertwined with the literary one is, therefore, about paradox of custom as a concept that simultaneously regulates the possession of private prop­ erty and constitutes a community. Thus, the other meanings of common that I consider range from the specific rights of commons (e.g., the right to land for pasture) to the broader idea of a common weal. These legal meanings themselves move into the realm of the metaphorical, as different writers consider the possi­ bilities of a discursive commons, one based in a shared speech or language such as that expressed in the rhetorical figure of the commonplace, and, finally, what I call a “temporal commons,” one that encompasses disparate though shared moments in time. This idea of the temporal commons returns us to the question of literary 29  These distinctions are addressed in Chapter 1, sections I and II. 30  These distinctions are addressed in Chapter 1, section V.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

10  Custom, Common Law, and the Constitution authority since it is here that writers as diverse as Sidney and Whitney saw the potential for imagining their relationship with past writers and writing. This ­relationship, as we shall see in section III, plays out on the level of form.

III.  Law, Rhetoric, Form In A Power to Do Justice, Cormack argues that “jurisdiction must be seen as a principle of analysis more than a literary theme or topic per se”—and his injunc­ tion can be expanded to law more broadly.31 For example, in Theaters of Intention, Wilson reveals that the emerging concept of contract, which necessitated an account of intention, shaped not only the characters but also the plots of Shakespeare’s and Jonson’s plays by creating a sense of commitment over time.32 In this book, I discuss a range of genres in which custom shapes literary forms and rhetorical figures. In this section, I discuss the ramifications of my argument about literary form for what Christopher Warren has recently called the “ ‘legal turn’ in English Renaissance literary studies.”33 In particular, focusing on custom brings together two critical conversations that are often treated as distinct: argu­ ments about law and rhetoric, on the one hand, and those about rhetoric and vernacularity, on the other. The conceptual legal apparatus of custom transforms what critics have shown to be the tension between England’s vernacular ambi­ tions and anxieties into “an enabling principle of [] aesthetic production”34 and, in turn, helps produce a common identity. My approach is shaped by Victoria Kahn and Lorna Hutson’s crucial conten­ tion that “rhetoric and law” could themselves “define a field of study” in early modern Europe, but I expand what gets included in the category of rhetoric.35 Classical rhetoricians like Cicero and Quintilian divide rhetoric into five parts: inventio (the discovery of material for a speech); dispositio (the arrangement of that material); elocutio (the artful expression of material); memoria (memoriza­ tion); and pronunciato (delivery). Hutson has done much to illuminate the importance of the first two aspects of rhetoric, inventio and dispositio, especially in her discussions of drama’s use of narration, where she argues that Renaissance playwrights’ familiarity with classical “forensic rhetoric,” or the laying out of evi­ dence and events in probable ways to prove innocence or guilt, enabled them to inject “liveliness and power” into their plots.36 But Jenny Mann has recently noted

31  Cormack, 4. 32 Wilson, Theaters of Intention. 33 C.  Warren, Literature and the Law of Nations, 1580–1680 (Oxford: Oxford University Press, 2015), 4. 34  Cormack, 38. 35 V.  Kahn and L.  Hutson, eds. Rhetoric and Law in Early Modern Europe (New Haven: Yale University Press, 2001), 2. 36 Hutson, The Invention of Suspicion, 2.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  11 that English Renaissance rhetorical manuals, including Richard Sherry’s Treatise of Schemes and Tropes (1550), Thomas Wilson’s Art of Rhetoric (1553), and Henry Peacham’s Garden of Eloquence (1577), tend to be obsessed with just one aspect of rhetoric, elocutio. They have garnered less critical attention than their continental counterparts, even though they too were based on classical predecessors, because their focus is primarily on “issues of style,” on “the part of rhetoric concerned with linguistic ornament.”37 This book argues for the importance of joining the eccentric English rhetorical manuals in their obsession with style because that obsession was shared by early modern writers. It thus continues to focus on invention but expands the focus to even more specific rhetorical figures like ­aporia or the adage. I argue that these rhetorical figures become sites for experimenting with the possibilities of vernacular writing even as they open a space for literature to “bur­ row[] into [law’s] forms and categories,” to borrow another one of Cormack’s evocative phrases.38 This is because these seemingly minor “linguistic ornaments” were doubly connected to law. First, as other critics have noted, the audience for rhetorical handbooks included poets as well as lawyers and politicians. The dual­ ity of these handbooks’ audience becomes even more apparent when George Puttenham imports these rhetorical figures into the third book of his The Arte of English Poesie (1586), “The Book of Ornament.” Second, as the chapters of this book show, there is a structural connection that has gone unrecognized between certain rhetorical figures and common law itself, especially as it was understood as custom. While the connection of law and literature through their shared interest in rhetoric has been and continues to be productive, scholars of early modern law and literature tend to underemphasize the attendant anxieties of vernacular ­rhetoric in sixteenth-century England.39 For early modern writers, vernacular writing represented both an opportunity and a problem. The possibility of ver­ nacular eloquence was crucial to England’s emergent sense of its national identity, as Richard Helgerson influentially demonstrated in his seminal work, Forms of Nationhood.40 At the same time, though, attempts to achieve vernacular eloquence often highlighted the English language’s insufficiencies in comparison to Greek and Latin. Mann has recently termed English rhetoric an “outlaw rhetoric” to con­ vey how “vernacular rhetoric . . . roam[s] at the margins of the classical tradition,”

37 J.C.  Mann, Outlaw Rhetoric: Figuring Vernacular Eloquence in Shakespeare’s England (Ithaca: Cornell University Press, 2012), 17. 38  Cormack, 22. 39  In Chapter 4 of The Invention of Suspicion, Hutson discusses the complexity of importing Roman New Comedy into English playwriting, but she focuses on the conceptual tension rather than the ­linguistic and rhetorical one. 40 R. Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

12  Custom, Common Law, and the Constitution only gaining access to it through a series of stealthy incursions.41 Catherine Nicholson likewise calls attention to the lack of fit between vernacular rhetoric and national identity because the former depends upon the strange, the uncom­ mon, for ­success, while the latter requires consolidation and com­mon­al­ity.42 Custom ­enabled just such a commonality, and thus bringing law into discussions of ­vernacularity helps us better understand this complex story. As we shall see in section V, this book tells the story of how, in the sixteenth century, legal custom became central to navigating English writers’ often vexed relationship to classical humanism. This possibility is first glimpsed in More’s Utopia, then transplanted to England itself with Isabella Whitney’s A Sweet Nosgay, in which a woman writer imagines herself as part of the humanist trad­ ition. It resumes later on in the century in Edmund Spenser and Gabriel Harvey’s debates about quantitative verse and in the eclogues of Philip Sidney’s The Old Arcadia. Finally, at the beginning of the seventeenth century, Shakespeare explores the potential of narratio, a classical dramatic technique, to develop the resources of the English theatrical tradition.

IV.  Custom and the Art of Diachronic Innocence Scholars have made a convincing and often brilliant case for the legal ­underpinnings of early modern literature. Yet custom, a foundational concept of common law, has been almost entirely overlooked. It remains now for me to answer the question: why? As I have begun to suggest, one reason is that custom as a category may hold little appeal because it does not look to us like a dynamic one. But this brings us to an even more deep-seated reason: the centrality of custom to early modern literature brushes against the grain of our dominant period schemes. In a sense, by focusing on legal developments, recent work in early modern law and literature has used law to further cement our period nar­ ratives, even as we acknowledge the constructed nature of those narratives and periods. Custom offers a different mode of thinking about the periodization, making it—and law more generally—all the more indispensable to the study of early modern literature. The legal turn in early modern studies and the debates about periodization are imbricated in a way that has not been sufficiently recognized. While this book builds on the critical model that connects developments in a single legal concept to changes in literary practice, it also poses a question that others by and large have not taken (or not taken explicitly) into account: how does literary change 41  Mann, 7. 42 C.  Nicholson, Uncommon Tongues: Eloquence and Eccentricity in the English Renaissance (Philadelphia: University of Pennsylvania Press, 2014).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  13 happen? I ask this question not just because it is important to consider if we aim to connect parallel developments in law and literature, but also because it was of critical concern to Renaissance writers, who inhabited a world in which change and innovation, as I have explained, were viewed with suspicion, even considered anarchic and insurrectionary. Law, I argue, is a rich and supple resource for English writers as a meta-­discourse about the nature of change and development itself. This argument ­renders law perhaps even more central to our understanding of early modern l­iterature because the idea of change is fundamental to how scholars have staked a claim for the Renaissance (or the early modern) as a period. The remarkably ­persistent, transdisciplinary narrative of the shift from the medieval to the early modern period largely depends upon a historical change in the very understanding of his­ torical change. The medieval period, according to this narrative, is defined by its lack of awareness of historical change, its inability to recognize the irreducible difference between past and present, whereas the Renaissance ­possessed a keen awareness of the pastness of the past, or a “historical consciousness.” In art ­history, Erwin Panofsky interpreted medieval artists’ use of ana­chron­is­tic­al­ly contemporary garb and settings for Christological and classical figures as a sign of this lack.43 In the discipline of history, Reinhart Koselleck argues that during the sixteenth through eighteenth centuries, a philosophy of history emerged that ­displaced the “exemplary nature of past events” in favor of the “uniqueness of ­historical processes.”44 Finally, in literary studies, Thomas Greene has argued influ­ entially that the Renaissance commenced with figures like Petrarch who experi­ enced the first pangs of “temporal estrangement” from the classical past. To describe the medieval period, he coined the evocative term “­diachronic innocence.”45 Recent scholars of art and literature continue to put a premium on historical consciousness as a way to define the period. Greene and others follow the ­nineteenth-century Burkhardtian conception of roughly the fifteenth through seventeenth centuries as the “Renaissance.” But the more recent period designa­ tion of “early modern” also builds upon the idea of historical consciousness, espe­ cially as creating the artistic desire for the new. As Margreta de Grazia observes, if, according to critics, “1400 to 1600 is to be the period of ‘nascent modernity,’ then it . . . must authorize itself by the introduction of novelty.”46 In A Singular Modernity, Fredric Jameson describes “the teleology of the modernist aesthetic” as

43 E. Panofsky, Renaissance and Renascences in Western Art (New York: Harper & Row, 1972). 44 R.  Koselleck, Futures Past: On the Semantics of Historical Time, trans. K.  Tribe (New York: Columbia University Press, 2004), 36. 45 T. Greene, The Light in Troy: Imitation and Discovery in Renaissance Poetry (New Haven: Yale University Press, 1982), 30. 46  M. de Grazia, “The Modern Divide: From Either Side,” Journal of Medieval and Early Modern Studies 37.3 (Fall 2007), 455. My understanding of how the Renaissance and its artistic production have been understood by earlier critics draws extensively on this essay.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

14  Custom, Common Law, and the Constitution a tri­umph­al procession “from the newer to the newest.”47 He argues that as r­ upture is valued over continuity, constant innovation becomes modernity’s imperative.48 If chronological time always tilts toward the future, then those of us who live within it are also always looking for the next new thing that will impel us into the future, or provide evidence that, at this very moment, it has arrived. The desire for newness in modernity is intertwined with the recognition of historical difference that is at the heart of Renaissance models. Even the return to antiquity, at least in Panofsky’s influential account, ironically allowed Renaissance writers to consider themselves a new period, without precedent. In this light, “Renaissance” and “early modern” look much more similar than critics might like to admit. Custom, rather than innovation, as a model for change contests this period narrative. Custom does not rely upon—even rejects—the possibility of historical consciousness because it refuses to recognize the pastness of the past.49 This book is in sympathy with medievalists who have shown that the description of their period as one of “diachronic innocence” is inaccurate. But rather than demon­ strating the awareness of historical change during the medieval period—as Monika Otter has done with regard to twelfth-century inventiones, a genre of writing that describes the discovery of saints’ relics,50 and Jennifer Summit with regard to medieval encounters with Roman ruins51—I, perhaps perversely, seek to reclaim Greene’s term, “diachronic innocence,” as a generative and complex relationship to time, rendering it potentially more appealing to Renaissance and medieval scholars alike. After all, what is “time immemorial” if not a version of

47 F. Jameson, A Singular Modernity: Essay on the Ontology of the Present (London and New York: Verso, 2002), 22. 48  Ibid., 1. 49  Other critics who importantly work against the notion of the supremacy of chronological time in the Renaissance include J.G.  Harris, Untimely Matter in the Time of Shakespeare (Philadelphia: University of Pennsylvania Press, 2010) and J.K. Barret, Untold Futures: Time and Literary Culture in Renaissance England (Ithaca: Cornell University Press, 2016). 50  Otter argues that these “show communities (usually monastic) relating to their past, discovering or retroactively inventing their origin;” “they stress cultural and historical continuity . . . but, at the same time, they acknowledge the disruption, the loss of continuity and often of cultural or corporate identity that makes the continuity narrative necessary in the first place.” M. Otter, “ ‘New Werke’: St. Erkenwald, St. Alban, and the Medieval Sense of the Past,” Journal of Medieval and Renaissance Studies 24.3 (1994), 394–5. Others question the break between the medieval and the Renaissance itself. See, for example, M.  Cook, The Poet and the Antiquaries: Chaucer and the Rise of Literary History, 1532–1635 (Philadelphia: University of Pennsylvania Press, 2019); K. Schreyer, Shakespeare’s Medieval Craft (Ithaca: Cornell University Press, 2014); and D.  Wallace, “Mary Ward and the Premodern Canon,” Journal of Medieval and Early Modern Studies 36.2 (2006). 51 Reading Chaucer’s Second Nun’s Tale alongside medieval guidebooks for and accounts of ­pilgrimages to Rome, Summit shows that medieval encounters with Roman ruins “occasioned some of the period’s most prolonged meditations on the nature and meaning of historical change.” By contrast, one of the founding texts of Italian Renaissance Humanism, Petrarch’s Letter to Giovanni Colonna (written between 1337 and 1341), is less an inaugural moment of historical consciousness than a ­profoundly political document that aims to “refound Rome as the center of Christendom” during the period of the Avignon Papacy. J. Summit, “Topography as Historiography: Petrarch, Chaucer, and the Making of Medieval Rome,” Journal of Medieval and Early Modern Studies 30.2 (2000), 214, 220.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  15 “diachronic innocence”? What could be more synchronic than a concept without an origin? With this proposal to rethink historical consciousness as a period divider, my argument also makes a contribution to medieval and Renaissance legal history. Legal scholars, too, have begun to reconsider period divides by revealing the ­persistence of certain concepts from the medieval to the early modern period.52 I  am indebted to Janelle Greenberg’s argument (contra Quentin Skinner, Christopher Brooks, and Kevin Sharpe) that the radical dissidents of the 1640s, rather than creating the idea of an ancient constitution, “merely expanded on and embellished the traditional ancient constitution whose roots stretched back to the ­middle ages” and could be found in the writings of sixteenth-century antiquarian historians.53 But I believe that we can take the argument even further by showing how time immemorial in and of itself puts pressure on the Renaissance’s concep­ tual relationship to time that has characterized period narratives. Kathleen Davis has argued that scholars like J.G.A. Pocock, who first made the influential argu­ ment that custom and common law’s equivalence shaped England’s relationship to the past, in fact rely upon the period break.54 According to Pocock, in the tell­ ing of England’s legal history by common lawyers like Edward Coke and Henry Spelman, the “feudal law” was forgotten only to be recuperated, but recuperated specifically as substantially different from their own present.55 By failing to attend to the constructed nature of the alterity of the medieval past, Davis reveals, ­scholars who have followed in Pocock’s wake have accepted it as fact.56 This goes a long way toward explaining why, by and large, legal historians have not recog­ nized the period-destabilizing properties of custom and time immemorial. Yet, in my view, these same scholars ironically lay the groundwork for uncovering the potential in the concept of time immemorial to undo this break.57 Custom, Common Law, and the Constitution of English Renaissance Literature, in contrast to both literary and legal scholarship, ultimately proposes the slow change of custom as an alternative to the stark breaks and ruptures that we ­usually associate with, first, the movement from one period to another, and, second, with

52  For an excellent example, see S. Sobecki, Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463–1549 (Notre Dame, IN: Notre Dame Press, 2015), which shows how the medieval conceptions of common law influenced early Tudor rebellions. 53 J. Greenberg, The Radical Face of the Ancient Constitution: St. Edward’s “Laws” in Early Modern Political Thought (Cambridge: Cambridge University Press, 2001), 5. See also Q. Skinner, “History and Ideology in the English Revolution,” Historical Journal 8.2 (1965), 151–78; C. Brooks and K. Sharpe, “History, English Law, and the Renaissance,” Past & Present 72.1 (1976), 133–42. 54 Pocock, Chapter  2. K.  Davis, Periodization and Sovereignty: How Ideas of Feudalism and Secularization Govern the Politics of Time (Philadelphia: University of Pennsylvania Press, 2008), 60–1. 55  Pocock, Chapter 5. Davis, 60–1. 56  Davis, 61. 57  Although I build upon Davis’s work in that it attends to the relationship between law and peri­od­ iza­tion, Davis is more interested in how legal writings establish period boundaries, while I am more interested in how they transgress them. This is in part because of her focus on seventeenth-century English legal writings and mine on sixteenth-century ones.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

16  Custom, Common Law, and the Constitution older but still powerful scholarly articulations of the Renaissance’s own c­ onception of the past. It shows how law itself offers this different model of change or devel­ opment, thus decoupling early modern literary production from the modern imperative to innovate. Yet, I argue, it is attention to the literary text, and to the poetic dimension of the legal, that illuminates the possibilities of time im­me­mor­ ial to reshape our ideas about Renaissance literary authority and p ­ roduction. What we find is a rich sense of the presence of the past, and its ­contribution to the constitution of English Renaissance literature.

V.  Chapter Descriptions The first chapter offers a more in-depth account of custom’s place in common law: it focuses on those aspects of custom that are critical to literary writers and concludes by arguing for custom as a poetics. Each chapter that follows demon­ strates how early modern writers draw upon custom as a legal structure or form that is rooted in a specific temporality and promises a political yield—even and perhaps especially when they question the political dimension of this equation.58 In each chapter, writers are shown to relate to custom in varied ways. These rela­ tionships, and the tensions and paradoxes they entail, are worked out not just on the level of content but also form. Although the chapters unfold in roughly chronological order, as befits a concept that defies historical chronologies, they do not aim to offer a developmental narrative. Rather, I have organized each one around how a particular genre and even rhetorical figure become intertwined with a particular aspect of legal custom, building up to a holistic picture of a full engagement with the concept. Additionally, while the first three chapters focus on members (or would-be members) of the political and social elite and of the court, in the final two chapters, I shift my focus to a broader social spectrum, showing how authors like Whitney and Shakespeare were able to make use of its potential to expand the idea of the commons and their modes of resistance. Chapter 1, “Time Out of Mind: Custom and The Politics and Poetics of Duration,” elucidates the legal-political concept of custom upon which literary writers drew. It provides an account of how custom suffused English law at every level, while delineating the contours of custom in the area of law that is this book’s focus, common law. I focus on how a practice was determined to be a legally binding custom. On the one hand, there were theoretical discussions that ­supported these determinations. On the other hand, lawyers relied on “common

58  In this sense, I diverge from Hutson’s work on how drama teaches equitable judgment, in which she tends to see drama as only celebrating and furthering the consensual dimension of the ancient constitution. See L.  Hutson, The Invention of Suspicion and “Imagining Justice: Kantorowicz and Shakespeare,” Representations 106.1 (2009), 118–42.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  17 learning” or “common erudition” to guide them, which I will argue bears a s­ imilar relationship to the past as custom. In all cases, though, duration was a central ­criterion. As a result of the importance of “time immemorial” to common law, the ancient constitution refuses to conform to our modern sense of history. Moreover, it became a political tool precisely due to its reliance on the temporality of ­common law. Importantly for English literary writers, early modern English law was politically constituted, just as its politics were legally constituted. Finally, this chapter attends to the poetic and fictive nature of custom that will be explored further by early modern writers. In Chapter 2, “The Commonwealth of Custom in Thomas More’s Utopia,” More sets the stage for fiction as a sphere in which to explore the constitutional promise of custom. This chapter reads Utopia (1516) as connecting two concurrent devel­ opments: the emergence of Renaissance humanism and the growing dominance of common law as the basis of England’s legal system and political identity. The absence of private property on the island of Utopia precludes law, and custom takes its place, thus mirroring the peculiarities of England’s own constitutional dispensation. At the same time, More’s ubiquitous use of the commonplace, which had been theorized in terms of custom by his good friend Erasmus, pro­ vides an apposite figure for Utopia’s political commons and thereby engenders the possibility of a discursive one. Uncovering the remarkable conceptual similarities between common law and the commonplace, this chapter argues that More ensures the commensurability of a native political institution with the classical tradition that humanists were seeking to revive. Yet sustaining commonality, whether in “no-place” or the commonplace, proves difficult, as the distinctions between custom and law begin to blur and the apparently expansive community to whom the proverb belongs begins to contract. More thus also gestures at the limits of a political-linguistic commons rooted in custom. His recognition of these tensions poses a conundrum to which sixteenth-century writers would return over and again, even as his early experiment with the classical common­ place influenced literature in English that looks to custom as a source of poetic inspiration. Chapter 3, “Inventing Custom: Meter, Etymology, and Conquest in the SpenserHarvey Letters and Spenser’s A View of the Present State of Ireland,” ­considers custom’s function in colonial conquest, juxtaposing England’s c­onquest-filled ­ ­history with English attempts at expansion in Ireland. I argue that Edmund Spenser and Gabriel Harvey’s debate about the imposition of classical meter on English verse, which appears in their 1580 published correspondence, illuminates custom’s importance in navigating the intertwined legal, political, and linguistic changes that result from conquest. Spenser and Harvey frame their debate in imperial terms, ironically revealing custom as the basis of the ­etymological ­process by which the foreign becomes native, even part of the fabric of the English ­language. They offer a rejoinder to More’s Utopia, particularly the ­connection it

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

18  Custom, Common Law, and the Constitution perceives between problems of geographic and cultural expansion: the tension inherent in custom can itself be generative. But what is productive for two poets with a distant national history of subjection proves devastating for a colony in for­ mation. Spenser and Harvey’s construal of custom as an agent of foreign conquest rather than indigenous resistance provides an heuristic framework for Spenser’s violent approach to England’s colonial venture in A View (1596). At the same time, however, by exploring the history of Ireland’s equally customary Brehon law, Spenser reveals the difficulty of establishing linguistic—and therefore political— chronologies within a global history that stretches beyond the vexed borders of Ireland and England. While Chapter  3 examines the unsustainable binary of native and foreign, Chapter  4, “Performing Custom: Poetry and the Aporia of Constitutional Authorship in Sidney’s Old Arcadia,” focuses on the relationship between the written and the unwritten within common law. It examines custom’s authority as an unwritten form of law, with its roots in practice and performance rather than code and decree. What I call Sidney’s “constitutional romance” reveals the poten­ tial for custom to vacillate between the poles of constitutional and consensual on the one hand, ceremonial and coercive on the other. The crisis of regnal succes­ sion that frames the Old Arcadia (1580) is resolved not by a legal or military ­conquest but rather by the willingness of a foreign interim sovereign to take on Arcadian customs. Yet this same sovereign’s subsequent dismissal of custom as empty ritual renders custom a canny political expedient. It is the romance’s narra­ tor that seeks to retain the constitutional authority of the uncodified, first by employing the rhetorical figure of aporia, or doubt, within the narrative itself to open up a space for readerly consent and, second, by positioning the eclogues— that is, Sidney’s imitations of classical poetry placed in the mouths of shepherds (and aristocrats disguised as shepherds)—in the liminal space between per­form­ ance and codification. Through both these aspects of the romance, Sidney reflects on the debates about codifying common law that were taking place during this period. At the same time, he offers a model of authorship with a different rela­ tionship to the past than critics usually identify with the Renaissance artist. In the usual model, he (or she) is figured as a melancholic author longing for a lost past that can never be recovered fully. In his eclogues, by contrast, Sidney imagines the artist as one who creates an inaccessible past that he, counterintuitively, has no desire to recover. Chapter 5, “Cultivating Custom: The Poetics of the Commonplace in Isabella Whitney’s A Sweet Nosgay,” shows how a female writer lays bare a tension that was implied in More’s Utopia: the proverb or commonplace is a form of communal property that relies upon a system of private property. In confronting this ­tension, Isabella Whitney reconfigures the relationship between proverb and author in her printed commonplace book, A Sweet Nosgay (1573), pushing back against her ­predecessor Hugh Plat’s attempts to enclose the Senecan commonplace as his own

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Introduction  19 private property. The theory of custom that undergirded common law, often understood to be the purview of male landowners, turns out to be vital to Whitney’s writing and sense of authorship. Although her commonplaces are selfconsciously generated in response to a dystopic London landscape, they do not function as a retreat into the time-tested wisdom of the past. Instead they allow her to construct an identity as an urban female writer. Perhaps appropriately, it is a commoner who is able to poetically realize the democratizing possibilities of ­custom’s literary properties. In the poetic last will and testament that closes the volume, Whitney, unlike More, offers the reader a true commonplace book, one that makes use of custom in order to gather up London “places,” or topoi, and by imaginary fiat effect the impossible: making them common to all. Finally, Chapter 6, “Forgetting Custom?: Rebellion, Revolution, and Narratio in Sir Thomas More and Shakespeare’s Hamlet,” explores the most extreme pol­it­ ical usage of custom—to resist or even overturn a monarch. I argue that just as custom was invoked to justify popular rebellions in the sixteenth century, so too is it called upon to navigate their contentious staging. In Sir Thomas More, a play that Shakespeare is generally thought to have helped revise after its censorship, custom recuperates both the May Day insurrection of 1517 and More’s own resist­ ance to the king from the charge of innovation. Returning to the notion of a ­discursive commons that I explore in Chapters 2 and 5, I demonstrate the im­port­ ance of the proverb in this process. In Hamlet, by contrast, Shakespeare himself seems to take on the role of censor by situating Laertes’s rebellion offstage. In this ­context, the anonymous messenger’s description of the rebellion as a break with custom seems to place it beyond the pale of mimesis. While this, in turn, seems to signal the end of custom’s generative authority, the rhetorical and dramatic tech­ nique of narration opens up a space for the demotic, suggesting that custom lies at the heart of a political movement typically associated neither with custom nor with the Renaissance: revolution. Bringing together modern theories of political theology with Renaissance dramatic theory, this book ends by showing that Shakespeare discloses the possibility of custom’s strangely enduring power. After all, even Milton never fully turned his back on the authority of antiquity, since in the same letter to parliament in which he vilifies custom, he also justifies divorce by appealing to “an ancient and most necessary . . . statute of Moses.”59

59 Milton, Doctrine and Discipline, 224.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

1

Time Out of Mind Custom and the Politics and Poetics of Duration

Custom suffused the English legal system on every level, from local manor courts to common law itself. One could even say that the intensely legalistic culture of England was framed by and understood through the category of custom. Because custom’s range was so extensive and meanings so varied, this chapter begins by distinguishing between the multiple levels at which custom functioned—from local custom to “general” custom, also known as common law. It also traces these different levels of custom’s multivalent relationship to law as well as their shared focus on property rights and overlapping ideas about the past. Yet my main aim in this chapter is not to offer a comprehensive account of all types of legal custom or common law, but rather to provide readers with an account of those particular aspects of common-law custom that subsequent chapters will show are crucial to early modern literary production. This chapter thus sets the stage for understanding how a key concept of legal and constitutionalist thought shaped sixteenthcentury literature, while this literature, in turn, transformed a legal-political concept into an evocative mythopoetics. It does so by focusing on a central aspect of custom that allowed for this relationship: the long duration of a practice, its supposed use since “time immemorial.” Temporality played a role not only in establishing the practice itself as a pattern but also in professional knowledge of the practices that made up common law. Even if it did not rely upon the same duration of “time immemorial” for efficacy, I argue that what was called lawyers’ “common learning” produced a strikingly similar relationship to the past as did custom itself. Finally, “time immemorial” undergirded the increasingly political idea of the “ancient constitution.” This temporality was dynamic in nature and, as a result, it rendered custom and the ancient constitution a poetics that proved crucial for early modern literary writers.

I.  Law and/or Custom Before turning to the different facets of custom in common law, it is important to differentiate it from the perhaps more familiar meaning of custom in the legal context: local custom. England, like the rest of Europe, had an extensive set of local customs, sometimes called “customary law.” Paul Brand defines custom in Custom, Common Law, and the Constitution of English Renaissance Literature. Stephanie Elsky, Oxford University Press (2020). © Stephanie Elsky. DOI: 10.1093/oso/9780198861430.001.0001

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  21 this context as “a special normative rule or procedural rule which applied only within a particular area or jurisdiction,” areas that included counties, manors, ­cities, and villages, among other spaces.1 What did these local legal customs entail? They were primarily concerned with property rights, such as inheritance, the alienation of property, and the lord’s rights over his tenants and their lands.2 They also governed the commons and enclosure, tithes, manorial duties, forms of labor service, local agriculture, and, in some parts of England, fishing rights, salt industries, and free mining.3 For example, who had rights to fish in a river that ran through a manor was a matter of custom.4 Sometimes set down in books called “custumals” but often orally transmitted, they were legally binding practices at the local level. Indeed, whether or not a custom had been breached could be adjudicated in England’s networks of “inferior courts” such as manorial, ­borough, county, forest, merchant courts, and others.5 When a court, whether local or royal, enforced a local custom, it declared “a special law to prevail, in the relevant locality, over the general non-statutory law of the land.”6 In David Ibbetson’s account of custom, during the early medieval period, European legal systems were considered to be composed holistically of both law and local custom together, lex et consuetudo. Ibbetson refers to custom’s separate but complementary nature with the term “custom-as-law.”7 In the later Middle Ages, by contrast, the relationship began to shift: “Law was the given, custom something which either added to it or took away from it.”8 Moreover, law dom­in­ ated custom in the sense that it “determined the sphere of application of a custom and the conditions of its validity.”9 Ibbetson uses the term custom-in-law to describe the increasingly oppositional relationship of local custom to law, referring to local custom’s growing need to accommodate and be reconciled to a broader legal system.10

1  P. Brand, “Law and Custom in the English Thirteenth Century Common Law,” in Custom: The Development and Use of a Legal Concept in the Middle Ages, eds. P.  Andersen and M.  MünsterSwendsen (Copenhagen: DJØF Publishing, 2009), 18. 2  Ibid., 18–19. 3 A.  Wood, The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge: Cambridge University Press, 2013), 35, 101. 4  Ibid., 101. Wood’s excellent book offers extensive studies of these different types of local custom that have largely been overlooked by historians. 5  While these courts were part of the common-law system by the thirteenth century, they also retained a degree of autonomy. D. Ibbetson, “Custom in Medieval Law,” in The Nature of Customary Law, eds. A. Perreau-Saussine and J. Murphy (Cambridge: Cambridge University Press, 2009), 167. 6  N. Duxbury, “Custom as Law in English Law,” The Cambridge Law Journal 76.2 (2017), 343. 7  Ibbetson, 154, 161. 8  Ibid., 154. Interestingly, Frederic Cheyette reverses the relationship, arguing that in the thirteenth century law was considered “a deviation from custom,” in the sense that it was introduced by the king and not part of the people’s practice. F. Cheyette, “Custom, Case Law, and Medieval ‘Constitutionalism’: A Re-Examination,” Political Science Quarterly 78.3 (Sept. 1963), 367. 9  Ibbetson, 153–4. 10  Ibid., 161.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

22  Custom, Common Law, and the Constitution But England was different from other European countries in that the term c­ ustom referred not only to local law, but also to the legal system that increasingly bound the whole country. In other words, customary law as I have just described it was opposed not to law (as was the case in continental Europe) but rather to another set of customs, that is, the practices of the English people as a whole. In the influential thirteenth-century treatise De legibus et consuetudinibus Angliae (also known as Bracton), for example, custom or consuetudo could be used either to refer to a set of special local laws or to “general customs” (i.e., common law), and references to common law as consuetudo became increasingly frequent in the early modern period.11 In his encomium De Laudibus Legum Angliae, the fifteenth-century Chief Justice John Fortescue placed a “novel emphasis on ­ ­custom” that was to prove foundational to early modern jurists.12 He described all English law as consuetudo in an attempt to create a distinction between natural and manmade legal principles.13 In the 1520s, Christopher St. German, the great sixteenth-century scholar of common law, laid out six grounds for English law, from the law of reason to statute law, naming as the third ground “dyuverse ­generall Customes of old tyme vsed through all the realm.” He explained that these customs, which have the “strength of a law,” are “properely . . . called the common lawe” and offered an array of examples regarding English forms of land ownership.14 Even the grounds of law that did not at first appear related to ­custom, such as the law of reason and maxims, were, for St. German, connected to it.15 Most Elizabethan lawyers came to share his view of common law as mainly comprised of custom.16 Thus, Sir Edward Coke, the central figure in Pocock’s story, wrote polemical prefaces to eleven of the thirteen volumes of his Reports, an ambitious collection of common-law cases that were published over the course of the first quarter of the seventeenth century. Scholars have shown that he began working on these volumes in the 1580s and developed his thinking on custom’s immemoriality as early as the 1570s.17 In them, he insisted that common-law ­procedures, including trial by jury, assizes, and offices, such as the Sheriff, existed throughout England’s history in much the same form that they did in his day. 11  Ibid., 162–63; Brand, 19–20. 12  Brand, 22–3. 13 A. Cromartie, The Constitutionalist Revolution: An Essay on the History of England (Cambridge: Cambridge University Press, 2006), 22. 14  C. St. German, Doctor and Student, eds. T.F.T. Plucknett and J.L. Barton (London: Selden Society, 1975), 45–6. 15  For example, St. German divided the “law of reason” into the “the law of a secoundarye reason generall” and the “law of a secoundarye reason pertyculer,” deduced respectively from the universal or “dyvers” custom of property. “Maxims” and custom were two versions of positive law relating to property; the former was familiar only to the king’s court or those who were learned in law, while the latter was known throughout the realm. St. German, 12–13, 26, 33–5; Cromartie, 49. 16  Cromartie, 99. 17  For a full account of Coke’s process, see The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard. Vol. 1 (Indianapolis: The Liberty Fund, 2003), xxxv–li. See also I. Williams, “The Tudor Genesis of Edward Coke’s Immemorial Common Law,” Sixteenth Century Journal 43.1 (2012), 103–23.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  23 He made use of Fortescue’s belief that the “realm has been continuously ruled by the same customs as it is now.”18 By the seventeenth century, the idea that common law was custom may have seemed commonplace, but it was in fact a striking and even problematic claim. The language in which the authors of Bracton present the idea suggests as much: “Though in almost all lands use is made of the leges and the jus scriptum [written law], England alone uses unwritten law and custom. There law derives from nothing written but from what usage has approved. Nevertheless, it will not be absurd to call English laws leges, though they are unwritten.”19 Bracton introduces the status of English law as law by recognizing the incongruity of his claim. While local customary law was a recognized category in Roman law, there was no similar, parallel category of general custom. Unwritten law was a contradiction in terms and would become more so during the medieval period as scholastic ­thinkers refined the concept of “law.”20 As this chapter will discuss, English jurists were simultaneously proud of and anxious about their law’s unique nature.21 Just as local custom concerned itself with property rights, so too did England’s general custom. In the higher courts (i.e., Common Pleas and the King’s Bench), different types of land ownership, such as freehold and fee simple, and the ­processes of transfer and inheritance of land, such as primogeniture, were all thought of as customs.22 Moreover, the very practices of learning, transmitting, and deciding what counted as a legal custom generated by the Inns of Court— what I call “legal” knowledge—was, I argue, also customary. And finally, so too was the “ancient constitution,” the theorization of common law itself, that could be found primarily in legal treatises, chronicles, and parliamentary speeches. Although in this chapter I continue to address the relationship between local and general custom, it is ultimately this tripartite understanding of common law as

18 G. Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642 (University Park: Pennsylvania State University Press, 1992), 6, 74; J.P.  Sommerville, Politics and Ideology in England, 1603–1640 (London and New York: Longman, 1986), 88. 19  G.E.  Woodbine, ed., S.  Thorne, trans., Bracton on the Laws and Customs of England, Vol. II, (Cambridge, MA: The Belknap Press, 1968), 18–19. 20  T.F.T. Plucknett and J.L. Barton, “Introduction,” in St. German, Doctor and Student, li. See also Brand, 22. While this may seem like a linguistic incongruity, the lengths to which the authors of Bracton and of Glanvill go to justify this incongruity suggests its conceptual nature. 21  Ada-Maria Kuskowski recently has shown that medieval French coutumiers (custumals) themselves began to form a kind of common law across regional lay courts. Although different than the idea of English common law, this puts pressure on the sharp distinction between continental Europe and England that was important to medieval and early modern English legal writings. A-M. Kuskowski, “Inventing Legal Space: From Regional Custom to Common Law in the Coutumiers of Medieval France,” in Space in the Medieval West: Places, Territories, and Imagined Geographies, eds. M. Cohen and M. Fanny (London: Routledge, 2014), 133–58. 22  Although legal writers like the authors of Bracton and of Glanvill, Fortescue, St. German, and Coke were far more likely than the higher courts themselves to invoke the term custom, the way that these courts approached cases having to do with land ownership suggests that they too thought of common law in these terms. For examples of medieval law reports that use the term “custom,” see Brand, 24, 28.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

24  Custom, Common Law, and the Constitution custom—property rights, knowledge, and constitution—that forms a central ­concern of early modern literature, and thus of this book.

II.  Time Immemorial in Local Memory and Common Law What does it mean, though, to equate law with custom? Who determined whether a practice was a legal custom—and how? These were fraught questions for ­common law because, unlike the continental civil law system, its courts possessed no set of authoritative texts, such as Justinian’s Code and Digest. Instead, to establish the validity of a local custom, the courts turned to technical processes of ­evidence ­gathering. These processes were guided by the issue of temporality in the sense that duration was paramount. In some instances, it became necessary to prove the ­duration of a general custom since “time immemorial,” but to do so for, say, primo­ geni­ture, would have been superfluous. In the inferior courts, local customs often were matters of dispute—one party might allege that his “right” was supported by a custom while his opponent denied it or cited a different custom to support his claim.23 For example, tenants might take their landlord to court for violating their right to cut turf or wood for fuel, or one village might sue another over who had the customary right to a ­common area of land that sat between them.24 The uncertainty over these c­ ustoms increased after the Reformation because the new market in land brought in ­owners and others who were unfamiliar with local legal customs, and because landlords often responded to the increase in population by enclosing common lands.25 In response to the difficulty of defining or ascertaining custom, England’s courts developed increasingly explicit criteria and processes by which to determine what constitutes a custom that, in turn, grants a legal right. In both the inferior and higher common-law courts, establishing a local ­practice’s continuity and persistent usage was central to determining a custom’s val­id­ity.26 This required a technical process of collecting evidence, even if different inferior courts had differing standards for and types of evidence. In the lowest courts of the land, the manorial courts, juries were given discretion to judge a custom’s validity in a similar manner to fact finding. Surviving court records 23  Ibbetson., 167. 24  Wood, 105, 8–9. 25 A. Fox, Oral and Literature Culture, 1500–1700 (Oxford: Clarendon Press, 2001), 272; R. Ross, “The Memorial Culture of Early Modern English Lawyers: Memory as Keyword, Shelter, and Identity, 1560–1640,” Yale Journal of Law and Humanities 229 (1998), 266. 26  Duxbury, 345, 348. This was not the sole criterion. Littleton’s Tenures explains: “And so it is to be understood that in divers lordships and divers manors, there be many and divers customs . . . and whatsoever is not against reson may be admitted and allowed.” As late fifteenth-century Year Books record, even if a custom’s continuity could be proven, it would be rejected if it was found contrary to reason (Ibbetson, 172; Duxbury, 348). See  T.  de Littleton, Littleton’s Tenures in English, ed. E. Wambaugh (Washington, DC: John Byrne and Co., 1903), x.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  25 describe local witnesses using a combination of older written documents and oral tradition to provide evidence of a custom.27 Evidence of customs could also be taken from “all the Oldest and Wise men” in a community and then, sometimes, written down for later use.28 A community in conflict might even turn to a man on his deathbed to ask him about the customary boundaries or rights of a commons or tenant.29 Both because written records were so barebones as to give no indication of how a custom functioned and because they were subject to allegations of forgery, these oral testimonies were often thought to be more trustworthy than any written records. In some courts, a combination of records and oral testimony was even preferable to record alone.30 In higher, more professionalized courts such as those of London, however, lawyers made recourse to old records to argue for or against a custom’s validity. In other courts still, important customs were so well known that they needed no proof, as with Kentish gavelkind, a ­system of partible inheritance in which the land was split between all heirs. Judges in the higher courts often found themselves in the position of judging the validity of a local custom. Beginning in the 1570s–90s, their dockets began to fill with cases relating to local custom, including copyhold, tithes, and parish rates, for which they offered writs of trespass and ejectment.31 Moreover, these higher courts might confront questions about local custom in the course of an action.32 In this case, judges were similarly concerned with determining how long a custom had been practiced. Ideally, they could discover whether it had been in use since “time immemorial.”33 While this might seem like a vague term, jurists assigned a specific date to legal memory: September 3, 1189, or Richard I’s cor­on­ation day. To arrive at this date, they drew on the doctrine of prescription, a legal concept by which a litigant proved a claim to property by long usage.34 They thus applied a date intended for an individual claim to a collective practice. As John Cowell explained in The Interpreter (1607): “Prescription is, when for a ­continuance of time, whereof there groweth no memory, a perticuler person hath 27  Wood, 130. 28  Qtd. in Wood, 130–1. In the example Wood offers, an Abbott only charged someone to do so after the tenants claimed to be ignorant of his customary rights as lord of three manors or of how to explain them. 29  Wood, 8–9. Unfortunately, the records do not make it clear how they determined which party to believe when both asserted longevity (Ibbetson, 168). 30  Ross, 260. This was the case with the Court of Requests, an offshoot of the King’s Council that gave poorer litigants access to inexpensive and quick equity proceedings. 31  Ross, 262. 32  Ibbetson, 172. 33 Ibid. 34  Whether or not prescription could establish a right to real property was up for debate. Legal memory had been assigned an exact date since at least the post-conquest era. Initially that date was a moving target, first set to 1135, the year of Henry I’s death, then to 1154, the year of Henry II’s accession, then to 1189, Richard I’s coronation year. Because of Hubert Walter’s reforms in the twelfth ­century, at least in the king’s courts, record keeping had grown trustworthy enough to rely upon for evidence by the late thirteenth century, thus obviating the need to continually move the date of legal memory closer to the present time. The date for prescription had been set permanently by statutes in 1275 and 1293. See Greenberg, The Radical Face of the Ancient Constitution: St. Edward’s “Laws” in Early Modern Political Thought (Cambridge: Cambridge University Press, 2001), 22.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

26  Custom, Common Law, and the Constitution perticuler right against another perticuler person. And custome is, where by continuance of time beyond memorie, diuers persons haue gotten a right” ­ (emphasis mine).35 Custom creates the possibility of a common, or communal, right. But while it may have been feasible to trace a monarch’s or aristocrat’s legal claim or right to a piece of land back to the twelfth century because their possession of real property was increasingly well documented,36 it was usually im­pos­ sible for early modern communities to do so—and judges recognized this. Thus, they more often relied upon local knowledge. A whole county might report that a custom was theirs, or, again, there might be a foundation charter in which the custom was recorded.37 Duration, too, was central to the determination of what constituted a general custom, which is the level of custom with which this book is most concerned. As Neil Duxbury puts it, “it seems no exaggeration to claim that every common ­lawyer of note between the thirteenth and seventeenth centuries thought the ­status of the general custom as common law had something to do with that c­ ustom having endured for a very long time.”38 One could submit this idea to closer ana­ lysis as did Christopher St. German, who drew upon the medieval ius commune, a combination of Roman and canon law, in order to articulate a set of tests to ­support a custom’s legitimacy.39 Just as with local or industry customs, it was important to show whether a custom had been in practice uninterruptedly for a long duration. But it is important to note that the date of legal memory, 1189, while crucial to determining a party’s right to a piece of property or the validity of local custom, was less so in the case of general common-law customs. Here, as we shall see, the year of the Norman Conquest, 1066, trumped all other dates. In addition to long duration, according to St. German, one had to verify that this custom was accepted by rather than imposed onto the community that was governed by it and that it accorded well with divine law, natural law, and reason.40 By applying these criteria, St. German argued for the validity of the law by which kings could take away the lands of an outlaw after he failed to appear in court, even if he did not know there was a suit against him. St. German proved that this law had existed as a practice since “time out of mind” and that it was accorded with reason because as positive law “reasonable conditions” could be placed on

35 J. Cowell, The Interpreter (Cambridge: Printed by John Legate, 1607), 3E2r (s.v. “prescription”). 36  On this shift, see M.T. Clanchy, From Memory to Written Record, 1066–1307, 3rd ed. (Chichester: Wiley-Blackwell, 2012), Chapter Two especially; A. Wood, “Custom and the Social Organization of Writing in Early Modern England,” Transactions of the Royal Historical Society, 6th series, Vol. 9 (1999), 262–4. 37  Ibbetson, 173. 38  Duxbury, 356. 39  R. Helmholz, “Christopher St. German and the Law of Custom,” The University of Chicago Law Review 70.1 (2003), 129–39. See also Duxbury, 350–1. 40  Helmholz, 131–2.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  27 private property rights, and this practice of the king constituted one of them. In doing so, then, one would not be going against natural or divine law.41 Despite the existence of potential sets of tests to determine what constituted England’s “general custom,” that is, common law, it would have been odd to ­submit its main features, such as primogeniture, to a series of technical tests, as was done with local customs. It wasn’t usually necessary to decide whether an aspect of common law was customary—it was already a custom.42 In a sense, “common law” and “custom” could be redundant terms. Although, as I have ­discussed, custom had multiple meanings in the law, in this book I will use “­ custom” interchangeably with “common law,” unless otherwise noted. This ­synonymy did not mean, however, that the question of common law’s temporality became less important; in fact, it became more so. Indeed, common law’s existence since “time immemorial” became increasing important precisely because, as we shall see in the sections that follow, its immemoriality engendered a specific, complex relationship to the past.

III.  The Time of Custom, i: Common Learning and Case Law The superfluity of submitting common law’s primary features to the test poses an epistemological question: how did lawyers and judges know what they know? From our modern point of view, this question is compounded for early modern judicial practice by the fact that late medieval and early Renaissance lawyers, judges, and students of common law possessed no authoritative texts to guide their educations, arguments, or decisions. Moreover, from the medieval period through at least the first half of the sixteenth century, common law was not yet case law. In other words, past cases were not considered to constitute a “body of judicial decisions” by either common lawyers or judges.43 Lawyers did not rely upon them to persuade judges of their clients’ claims, nor did judges refer to them in their decisions. Citations, whether to Year Books or treatises like Littleton’s Tenures, were few. Westminster Hall contained no library. As  J.H.  Baker put it, “[l]itigation was, for the most part, not designed to find out the law”—nor were 41  Ibid., 136–7. For a discussion of reason’s role in custom, see also Duxbury, 350–1. 42  Brand, 24; Duxbury, 343–4, 348. 43 J.H. Baker, The Oxford History of the Laws of England, Vol. 6 (Oxford: Oxford University Press, 2003), 486. Discussing the early medieval period, Cheyette argues that common law was “secreted in the interstices of procedure” so slowly that when the attempt was made to compile Bracton “on the model of Justinian’s Institutes, [they] could find English parallels to only two of Justinian’s three books on substantive law” (375–6). Although Cheyette’s work predates my focus, it offers a compelling account of the basis upon which the authors of Bracton described English law as custom. He suggests they applied to it the three signs of a (local) custom’s existence from Azo’s commentary on Justinian’s Code: (1) “it was so decided without anyone denying it”; (2) “complaints regarding the custom in question have not been received by the court”; and (3) “someone claimed in court that that the custom did not exist, and a judgment declared on the contrary that the custom did indeed exist” (380).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

28  Custom, Common Law, and the Constitution its records.44 Medieval Year Books were far more concerned with the debates that took place during a litigation than with its outcome and any legal principle it might establish. Thus, they seldom recorded the reason for the bench’s decision, and often neglected to include the decision altogether.45 While continental lawyers sought answers to legal questions, Ibbetson explains, English lawyers “­concentrated almost exclusively on the way in which the questions should be asked.”46 Individual cases, then, were not a means of either ascertaining or transferring legal knowledge. Baker has remarked, “if the sole means of transmitting the common law from one generation to the next was the year books, then the survival of the common law must be one of the greatest unexplained mysteries of intellectual history.”47 During the sixteenth century, the explanation for this mystery was in flux. The kind of knowledge called “common learning” or “common erudition,” associated with the oral practice of readings at the Inns of Court, had long provided the foundation for the forensic practices of students and practitioners of common law. But lawyers were now also coming to value case law and printed law books as sources of knowledge and authority. As we shall see, these two different ways of knowing the law entailed different ways of conceiving of the past, the former of which bore close resemblance to custom’s “time immemorial.” Common learning yielded a similar relationship to the past as its subject matter, even if it did not rely on precisely the same claims of duration as did common law. Rather than referring to the general knowledge of the population, common learning was know­ ledge shared by the legal community and transmitted to its students. It is a concept akin to the legal maxim because it represented a set of “propositions which . . . required no proof,” no “chapter and verse” to support them.48 Common learning was “commonly felt to be right.”49 Sometimes an aspect of common learning could be crystallized in a maxim, such as those provided by Christopher St. German in Doctor and Student, but much of it was far less fixed and stable than the form of a maxim might suggest.50 Instead, common erudition was “inherited learning” that emerged by “consensus rather than by authoritative rule.”51 E.W. Ives notes the imprecise language of common learning that the 44 J.H.  Baker, The Law’s Two Bodies: Some Evidential Problems in English Legal History (Oxford: Oxford University Press, 2001), 11. 45 E.  Ives, The Common Lawyers of Pre-Reformation England: Thomas Kebell: A Case Study (Cambridge: Cambridge University Press, 2008), 148. 46  D. Ibbetson, “Ghosts of the Past and the English Common Law,” in History in Court: Historical Expertise and Methods in a Forensic Context, ed. A. Wijffels (Leiden: Ius Deco, 2001), 112. 47 Baker, Law’s Two Bodies, 9. 48 Baker, Oxford History, 468–9. 49 Baker, Law’s Two Bodies, 76; Brand, 24. 50  Ibid., 68. See also St. German, 51–75. St. German tried to divide common law into customs (generally known to the public) and maxims (known mainly to the legal profession) in Doctor and Student, but ultimately admits that this is a heuristic device rather than a true distinction (Plucknett and Barton, lii). 51 Baker, Oxford History, 470.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  29 prominent late medieval, early Tudor lawyer Thomas Kebell (1439–1500) often used, such as “if the law is as I have always taken it” and “I have often seen that,” or, to refute an opponent, “This erudition you speak of, I have never heard it before.” Yet, Ives argues, rather than engendering uncertainty, as we might expect, it was a “recipe for vitality” since “(a)uthority lay in the collective mind of the profession, past and present.”52 While some fifteenth- and sixteenth-century common lawyers in part implicitly critiqued common learning by complaining that the judgments of the Year Books were “infinite and full of much controversy,”53 or more generally of the difficulties of “ascertaining and learning” a law without a code, without any “authoritative pronouncements,”54 others explained that there was no need for such things because, in St. German’s formulation, the law was “openly known through common use”: “For what needs it to have any law written,” he asked, “that the eldest son shall inherit his father . . . ?”55 The collective mind of common learning was most often put on display in the readings that took place at the Inns of Court. These were extended analyses of a statute by a barrister who had already been called to the bar and bench. The reader expounded upon the logic of each clause of the statute as a way to provide an exposition of the law.56 His analysis was then followed by “disputations” in which other barristers, benchers, and even judges in attendance challenged the illustrative cases that the reader had put forth.57 Readings were crucial to establishing common learning since debates reported in the courts of Westminster Hall often “obscured” principles in favor of procedural considerations.58 It is important to note here that while the importance of common erudition may seem to support the idea that common law was “judge-made law,” as contemporary scholars now think of it, early modern judges did not view the decisions they based on these arguments as transforming a custom into a binding rule. Rather, whether accurately or not, they saw themselves as identifying a custom that already existed, and the judiciary’s role as acting as a repository for common law.59 52  E.W. Ives, 161. 53  Thomas Starkey voiced the complaint about Year Books in A Dialogue between Reginald Pole and Thomas Lupset (Qted. in Ross, 300). 54  Ross, 300. 55  Qtd. in Ross, 300. 56  M. McGlynn, “Idiosyncratic Books and Common Learning: Readings on Statutes at the Inns of Court,” in The Oxford Handbook of English Law and Literature, 1500–1700, ed. L.  Hutson (Oxford: Oxford University Press, 2017), 41–2. 57 Baker, Oxford History, 464–5. 58  Ibid., 471. 59 Duxbury, 353; D.  Ibbetson and A.  Wijffels, “The Techniques of Judicial Records and Law Reports,” in Case Law in the Making: The Techniques and Methods of Judicial Records and Law Reports, Vol. 1, ed. A.  Wijffels (Berlin: Duncker & Humblot, 1997), 14. Legal historians disagree about the nature of the relationship between judges and custom earlier on, in the medieval period. Cheyette argues that judicial decisions were understood to create laws and give customs their binding force. Ibbetson agrees that this is how it happened in practice, but that medieval lawyers and judges did not think of it that way and attributed custom’s force to the people. Both McSweeney and Brand offer arguments for balance. Bracton, McSweeney argues, sought a balance between the judge’s singular authority and the authority of the system, while Brand concurs that for the authors of Bracton the force of custom as law emerged both from the approval of “the counsel and consent of the magnates”

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

30  Custom, Common Law, and the Constitution “Common learning” has been most strongly associated with the fifteenth and early sixteenth centuries, and scholars argue that by the second half of the sixteenth century and certainly by the seventeenth century references to “common learning” had declined, reflecting its diminishing power.60 Although readings maintained a similar structure and persisted through the later sixteenth and seventeenth centuries, they were rarely reported anymore.61 Scholars further argue that common learning was largely replaced by printed books and recorded case law as a source of the lawyer’s ongoing education. This shift has been attributed to causes external and internal to common law: the advent of the printing press and changes in judicial procedures. The printing of the Year Books and reports granted lawyers and judges better access to past judicial decisions. Beginning with Anthony Fitzherbert’s La Graunde Abridgement (1514–16, 2nd ed. 1565), which has been called the “book that made common law,” a series of printed abridgments contained indices that made sifting through the vast amount of information in the Year Books and reports feasible.62 One of the selling points of Edmund Plowden’s volume of extensive law reports, Commentaries and Reports (1571), was that it contained the most trusted citations. In other words, pub­lishers recognized that lawyers were looking for reliable citations they could deploy in their arguments, and law students were looking for ones that would help guide them in understanding the law. Ian Williams has argued that over the period 1550–1635, common lawyers began to prefer working with printed ma­ter­ials over manuscript.63 On at least two occasions, James I’s and Charles I’s ­lawyers even tried to argue that printed books should be considered more authoritative.64 At the same time, written rather than oral pleadings had become the order of the day, and procedural devices that “isolated legal questions” grew in use. Richard Ross argues that these shifts in turn changed the nature of the record, “reorient[ing]” it from “the tentative, exploratory pleas of the yearbooks toward the firmly decided legal points of the nominate reports” and creating a “­citation-heavy style of legal literature.”65 as well as but what “usage has approved and . . . the ‘general agreement’(communi sponsione) of the res publica.” Cheyette, 368; McSweeney, 851; Brand, 22–3. 60 Baker, Law’s Two Bodies, 82. 61  J.H.  Baker and S.E.  Thorne, “Introduction,” in Readings and Moots at the Inns of Court in the Fifteenth Century, Vol. 2, eds. S.E. Thorne and J.H. Baker (London: Selden Society, 1990), lxx–lxxi. 62  H.J. Graham and J.W. Heckel, “The Book that ‘Made’ the Common Law: The First Printing of Fitzherbert’s La Graunde Abridgement, 1514–1516,” Law Library Journal 51.2 (1958), 100–16. 63  I. Williams, “ ‘He Creditted More the Printed Booke:’ Common Lawyers’ Receptivity to Print, c. 1550–1640,” Law and History Review 28.1 (2010), 48–9. Williams revises this account in “Common Law Scholarship and the Written Word,” in The Oxford Handbook of Law and Literature, ed. L. Hutson (Oxford University Press, 2017), 61–79. 64  Ibid., 52–3. 65  Ross, 268. Scholars differ over whether the authors of Bracton could be considered to be using case law. Cheyette argues that they were; Plucknett that they were not; and, most recently, Thomas McSweeney argues for an in between position. He suggests that they collected and used cases “not . . .

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  31 Coke lamented that a citation-heavy style had begun to replace “(t)he antient order of Arguments by our Serjeants and Apprentices of Law at the Barr is al­together altered,” and further specified: 1. They never cited any Book Case, or Authority in particular . . . 2. Then was the Citing general, but always true in particular; and now the Citing is particular, and the Matter many times mistaken in general. 3. In those days few Cases in Laws were cited but very pithy and pertinent to the purpose, and those ever pincht most, and now in so long Arguments with such a Farrago of Authorities, it cannot be but there is much to refuse, which ever doth weaken or lessen the weight of the Argument.66

Coke recognized two dangers in this dramatic alteration. First, citations did not necessarily illuminate the truth of the matter since it turned out that there could be a kind of mismatch between the particular and the general. Second, the more citations an advocate used, the more he opened the door to dissent, the very thing he was trying to prevent with citation in the first place. Yet despite Coke’s ­complaints about their overuse, the growing importance of case law led, in turn, to what Baker calls a “new-found judicial positivism.”67 Ironically, despite his ­skepticism, Coke himself may have played a role in this because of his own ­penchant for the “string cite,” or the piling up of examples of cases in the margin of the text, especially in his Institutes.68 Yet, just because attending readings was no longer considered an effective means of being initiated into common learning, this does not mean that the latter ceased to be a source of legal knowledge. Indeed, as Margaret McGlynn has shown in her groundbreaking work, manuscripts (or lecture notes) of readings, the “physical manifestation” of common learning, continued to be prominent parts of lawyers’ personal collections long into the seventeenth century.69 These manuscripts could be found in the same collections as printed materials, and even in the same notebooks as transcriptions of other types of documents that are because they were statements of custom. They were using them because cases were, in the eyes of the clerks of the court, the words of great jurists.” T. McSweeney, “English Judges and Roman Jurists: The Civilian Learning Behind England’s First Case Law,” Temple Law Review 84 (2012), 839. 66  E. Coke, “Preface” to Tenth Reports, in The Selected Writings and Speeches of Sir Edward Coke, ed. S. Sheppard, Vol. 1: Reports (Indianapolis: Liberty Fund, 2003), 336. 67 Baker, Law’s Two Bodies, 18. 68  Simon Stern argues that Coke’s use of the “string cite” not only “marks [him] as a professional,” but also defines the professional in a specific way, as one who understands the relationship between a particular case and a “well-recognized structure” and who can discern “the insights, inferences, and implications concealed behind the express statements” in the sources that he cites. S. Stern, “Margins of Authority: Coke’s Institutes and the Epistemology of the String Cite,” Law and Humanities 11.1 (2017), 127, 132. 69  M. McGlynn, 47.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

32  Custom, Common Law, and the Constitution more commonly associated with that century’s legal learning, such as cases from known casebooks.70 Thus, as McGlynn puts it, “older forms of teaching and ­learning persisted and functioned alongside the new.”71 This is not to say that common learning was untouched by these developments in print; for example, later manuscript records of readings tend to associate a reading with an individual judge whereas earlier ones do not.72 Moreover, as Baker points out, in the 1590s Coke and Thomas Walmsley, a judge of the Court of Common Pleas, referred to “the common learning in our books,” a phrase that earlier would have been an oxy­moron.73 One might take this as evidence that the idea of common learning had been corrupted, or, alternately, one could argue that this offers an instance of how the two could co-exist. As McGlynn cautions, the “period of transition between manuscript and print was long and complex” and “the transition between habits of learning, arguing, and citing that went along with those formats was equally complex.”74 What difference does it make whether legal knowledge emerged from common erudition or from printed books, whether common learning disappeared in the second half of the century or persisted? For this book’s purposes, the crucial ­difference is the relationship to the past that each entailed. Although the legal ­literature of the period does not apply the term “custom” or “customary” to describe common learning, I argue that the two were similar in ways that have implications for the common lawyers’ and judges’ relationship to the past. Like custom, ­common learning relied on consensus; it was not connected to a written tradition or corpus but rather could be found not only in Year Books but also in the oral traditions of the Inns of Courts and Chancery; and, finally, as with ­custom, its repetition was crucial.75 As Baker explains, through the “constant ­repetition of the ‘common cases’ . . . the system established a tradition as to what was received learning and what was dubious.”76 To be sure, the duration of “time immemorial” was not a part of the definition of common erudition as it was with legal custom. Nevertheless, the inherited nature of common learning suggested that, like custom, it was significant because it had been around for a long time. As a result, like custom, it im­agines past generations as enmeshed in present practice. It is indifferent to origins that would divide up the past, or even to distinguishing between moments at all. Instead, common learning suggests a process of accumulation that does not draw attention to the past as past, and in this way imagines it on a ­continuous plane with the present. This foundational sense of continuity paradoxically allowed for a dynamic legal practice since a sense of deep connection to the past—but one that does not directly dictate the actions of the present—afforded a flexibility less ­available to those who worked in the framework of a past written set of texts. 70  Ibid., 54–5. 71  Ibid., 42. 72 Ibid. 73 Baker, Law’s Two Bodies, 81. 74  Ibid., 58. 75 Baker, Oxford History, 486. See also E.W. Ives, 155–61. 76 Baker, Oxford History, 470–1.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  33 This relationship to the past differed not only from both continental civil law and the system of precedent that eventually emerged by the eighteenth century, but also from the case law that was emerging at the time. In civil law, a singular figure from the past was treated as decisive and authoritative. Although Justinian’s Corpus Iuris Civilis was followed by multiple texts that vied for authority in different European countries,77 the former was nonetheless a distinct artifact to which lawyers returned in order to determine and apply the law. Thus, even as the past governed the present, in its codified form, the two were also separate. In a system governed by precedent, prior cases came to possess a binding effect on present judges rather than just being one means of persuasion, as they were in the sixteenth century.78 In this case, then, the past enters into the present through an isolated moment that could be applied to the present. While lawyers and judges do not always view these decisions serially, as punctuated moments in time,79 the possibility of doing so is present in a way that it was not in the early modern period. Printed case law functions as a kind of middle ground between early modern common learning and modern precedent, both historically and conceptually.80 Early decisions began to carry more weight, and lawyers began to be expected to provide them in their arguments. On the one hand, this change meant that judges gained greater authority;81 on the other hand, it meant that they became increasingly tied to the written record. As a result, common lawyers’ understanding of their relationship to the past began to shift. Thus, if we consider that the shift from common learning to printed books as the primary source of legal knowledge was a gradual one, this means that one notion of the past did not

77  These include custumals such as the Summa de legibus Normanniae (c. 1235–45), the Coutume de Paris (1580) and the Sachsenspiegel (c. 1220–1235), as well as the Corpus Iuris Canonici, a medieval collection of canon law. Roman and canon law formed an amalgam that was eventually known as the ius commune in Europe. See Helmholz, 131–2. 78  For a rare instance of binding precedent in the sixteenth century, see Williams, “Early-modern Judges,” 45n.64. 79  Richard Danzig famously laments that the law-school curriculum “erroneously” teaches students to treat precedents ahistorically, like “doctrinal fruit upon a conceptual tree . . . as though they all ­blossomed at the same time . . . .” R. Danzig, “Hadley v. Baxendale: A Study in the Industrialization of the Law,” The Journal of Legal Studies 4.2 (1975), 250. For an argument about how precedent enabled a connection with the past during the Victorian period, see A. Ben Yishai, Common Precedents: The Presentness of the Past in Victorian Law and Fiction (Oxford: Oxford University Press, 2013). 80  Scholars distinguish between early case law and the doctrine of precedent (stare decisis), which would not exist for at least another century. In the sixteenth century, prior cases possessed a “persuasive effect” rather than a “coercive” one as they did in the doctrine of precedent. Moreover, a single prior case could not overcome “common learning.” Neil Duxbury has argued that changes in the trial process during the sixteenth century paved the way for judicial precedent but agrees that case law does not reach the status of binding precedent until the mid-eighteenth century. See R.  Cross and J.W. Harris, Precedent in English Law, 4th ed. (Oxford: Clarendon Press, 1991), 3–4; Baker, Law’s Two Bodies, 84; N.  Duxbury, The Nature and Authority of Precedent (Cambridge: Cambridge University Press, 2008), 25; D. Ibbetson and A. Wijffels, “The Techniques of Judicial Records and Law Reports,” in Case Law in the Making: The Techniques and Methods of Judicial Records and Law Reports, Vol. 1, ed. A. Wijffels (Berlin: Duncker & Humblot, 1997), 29. 81 Baker, Oxford History, 486.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

34  Custom, Common Law, and the Constitution altogether supplant the previous conception. The epistemology of common law was still shaped by a form of learning that bore deep resemblance to its subject. As we have seen, the existence of a custom since time immemorial was a crit­ ic­al criterion for determining its binding status as a kind of law. For local practices, this time span had a specific date, 1189, and required proof (even if not to so early a date) in the courts of law. By and large, however, common law practices supposedly went back even further than 1189, yet they required no proof of this even more longstanding existence. In the case of common law, the “common learning” or “common erudition” of the Inns of Court sufficed instead. In other words, what I would call a customary form of learning supported a customary form of law. This nexus created a complex relationship to the past. During the latter half of the sixteenth century, common learning started to come into conflict with other kinds of legal knowledge, such as printed reports and case law. While these may have begun to endanger that temporal complexity, jurists sought to maintain the flexibility of custom. As we will see in the chapters that follow, the tensions engendered by the growing importance of the written to common law became an opportunity for English writers to conceive of their own authorship.

IV.  The Time of Custom, ii: Time Immemorial and the Norman Conquest Just as lawyers and judges’ legal knowledge yielded a dynamic relationship with the past, so too did the belief that the system in which they were working as a whole had existed since “time immemorial.” In his seminal 1957 book, The Ancient Constitution and the Feudal Law, J.G.A.  Pocock made the influential— and controversial—claim that, starting in the sixteenth century, there existed in England a “common-law mind.”82 He defined the common-law mind as “unconscious habits of mind” by which English common lawyers and others believed that, first, because common law was customary, it was insulated from foreign legal systems, and, second, because this customary law was immemorial, “­common law, and with it the constitution, had always been exactly what they were now.”83 That is, early modern lawyers embraced a “radical . . . tendency to read existing law into the remote past.”84 Pocock identified 1550–1600 as a period of “hardening and consolidation of common-law thought,” turning to Sir Edward Coke and his influential Reports as evidence.85 Coke, he argues, may have 82  See 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). 83  Ibid., 36. 84  Ibid., 31. 85  Ibid. Although Pocock’s evidence mainly draws on Reports that were published in the late ­sixteenth and early seventeenth century, the research for them began at least in the 1580s. See Chapter 1, section I.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  35 recognized the adaptive capacities of custom, but eventually “suppressed” any notion that “custom might give rise to ideas of law being in continuous development” and thus he was able to identify completely the past with the present.86 The thesis still has purchase today, and Alan Cromartie describes it in The Constitutionalist Revolution as a model that has “worn extremely well.”87 Yet the idea of “the common-law mind” was revised and challenged so often in the half century that followed its publication that in 1987 The Ancient Constitution and the Feudal Law was reissued with an extensive retrospect in which Pocock responded to his critics. In the discussion of “time immemorial” that follows, I  am inspired by Pocock’s work in both the 1957 and 1987 editions, but I also draw upon the work of subsequent scholars that has added nuance to what often struck critics as a monolithic account of common law’s temporality. As we have seen, common lawyers often made the claim for custom’s im­me­ mor­iality. But, unlike with local customs, they had to account for the cataclysmic events of 1066, the date of the Norman Conquest, which redistributed England’s population and lands, thus threatening to divide England’s history in two. Indeed, the organization of Raphael Holinshed’s Chronicles of England, Scotland, and Ireland (1577; 1586) into pre- and post-conquest volumes ef­fect­ ive­ly restarts the clock on English history with the Norman invasion. Perhaps, then, William the Conqueror had brought a new form of law, the common law, with him? This was the Italian humanist Polydore Vergil’s assertion in Anglica Historia (1513; printed 1534), but the English greeted it with umbrage. Instead, English historians and common lawyers insisted that common law existed as it had “time out of mind before the Conquest.”88 Coke built on the work of John Fortescue, sixteenth-century chronicle his­tor­ ies, and a whole range of other sources in his Reports to make a claim for c­ ommon law’s immemorial status beyond the Conquest. In De Laudibus Legum Anglie (c. 1470), Fortescue described England’s seemingly endless cycle of conquest in a counterintuitive manner: The kingdom of England was first inhabited by Britons; then ruled by the Romans, again by Britons, then possessed by Saxons . . . Then for a short time the kingdom was conquered [perdominatum est] by Danes, and then again by Saxons, but finally by Normans . . . And throughout the period of these nations and their kings, the realm has been continuously ruled by the same customs as it is now.89

The calamities of the past had no effect on England’s common laws.

86  Ibid., 45. 87 Cromartie, Constitutionalist Revolution, 198. 88  Coke, 1.162. 89 J. Fortescue, De Laudibus Legum Anglie, trans. S.B. Chrimes (Cambridge: Cambridge University Press, 1949), 38–9.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

36  Custom, Common Law, and the Constitution One might have thought that sixteenth-century antiquarian historians would have dispelled the myth of continuity. Yet they only bolstered it in their own accounts of the Norman Conquest. In The Description of England (1577), which was appended to Holinshed’s Chronicles, William Harrison claimed that common law was “fetched even from the course of most ancient laws made far before the Conquest.”90 Holinshed records that when William I attempted to introduce new laws, the Saxons revolted, and William I promised once again to “observe and keep the good and ancient approved laws of the realm.” Common law was “so much esteemed of the Englishmen,” according to Holinshed, “that, after the ­conquest, when the Normans oftentimes went about to abrogate the same, there chanced no small mutinies and rebellions for retaining of those laws.”91 Although William only partially reinstated them, his successors, most notably Henry I in the Charter of Liberties, did so fully.92 Holinshed’s Chronicles was more well known than those that had come before him, but these stories had appeared much earlier in the century, in Robert Fabyan’s New Chronicle of England and France (1516), which was reprinted ­mul­tiple times throughout the first half of the century; Thomas Lanquet and Thomas Cooper’s An Epitome of Chronicles, copied by Robert Crowley in 1559; John Rastell’s Chronycles of England (1530) and A Breviat Chronycle (1560); and Richard Grafton’s Chronicle at Large (1568). It also appeared in John Stow’s The Chronicles of England (1580 and 1587) and The Annales of England (1592), the latter of which was reprinted four times in the seventeenth century.93 In the Preface to Part III of the Reports (1602), Coke repeated the story of how William I’s successors fully restored common law in England.94 He also insisted that a wide swath of judicial procedures and offices predated the Norman Conquest, existing in much the same form that they did in his day. Sheriffs, for example, “were great officers and ministers of justice, as now they are, long before the Conquest.” Writs of assize were, likewise, “by prescription time out of mind of man,” and were in use during the reigns of kings “before the Conquest.” Drawing on the language of a plea in the sixth book of assizes, recorded during Edward III’s reign, Coke determines that not only were there sheriffs and writs of assize, but also trial by jury and a Court of Chancery. In other words, he insists, the “Common Law of England had beene time out of minde of man before the Conquest, and was not altered or changed by the Conquerour.”95 The antiquity of 90 W. Harrison, The Description of England (1577), ed. G. Edelen (Ithaca: Cornell University Press, 1968), 171–2. 91  See Holinshed’s Vol. 1, 747–8. This passage appears in the 1577 edition of Holinshed, and variations are included in the 1586 edition (Greenberg, 100). 92  Greenberg, 87–8. 93  Greenberg, 88–9. See also Greenberg 88n.23 and n.25 for other critics who discuss the popularity of this story. 94  Coke, 1.68. 95  Ibid., 1.61–4. See also Preface to the Eighth Reports, 1.245–51.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  37 England’s common law, of course, meant different things to different people. Some, including Coke, believed what Fortescue had asserted, that it dated at least to the time of the Britons and had persisted unaltered through England’s various conquests at the hands of the Saxons, Danes, and Normans. Others, like William Lambarde, believed that common law was a Saxon inheritance, but was im­me­ mor­ial in the sense that its origins lay deep in the forest inaccessible to any scholar.96 But while it may sound as if the English embraced a static vision of their ­common law and thus of their past, “time immemorial” was, in Glenn Burgess’s phrase, “a complex and subtle piece of historical imagination.”97 Custom had a dual imperative: to continue to reflect the unchanging character of the English people, while responding to the inevitability of historical change in ways that maintained its relevance and suitability. Thus, in his speech in parliament in 1610, Thomas Hedley compared it to “a garment fitted to the body or a glove to the hand or rather as the skin to the hand, which groweth with it,” and in his “Notes on Fortescue,” John Selden likened it to an old ship wherein most of the materials had been replaced but the structure still remained.98 Although his critics have suggested otherwise, Pocock was actually attuned to the poles of “preservation and adaptation” in Coke’s work,99 especially in Calvin’s Case where Coke offers an account of common law as having been shaped by the “wisdom of the most excellent men, in many successions of ages” who “by long and continual experience . . . fined and refined, which no one man,  (being of so short a time) . . . in any one age could ever have effected or attained unto.”100 This theory of common law thus acknowledged that the ­present and the past were “linked in a continuous evolutionary process.”101 Especially as antiquarian his­tor­ians uncovered more information about the English past, including about its supposedly native institutions such as Parliament, rather than losing sway al­together, the concept of custom and time immemorial allowed for “a complex fusion of the growing knowledge of change with the persistent idea of continuity.”102 Rather than simply being ahistorical, then, c­ ustom refuses to c­ onform to a modern sense of history, one that is characterized by that “fair sequence,” chronology.103 As was the case with common learning, the past was never truly past, but continued to live on and imbue the present with its aura.

96  Burgess, 61. 97  Ibid., 102. 98  Hedley, “June 28, 1610 Speech in Parliament,” in Proceedings in Parliament, 1610, ed. E. Read Foster, Vol. 2 (New Haven: Yale University Press, 1966), 180; Burgess, 7. 99  Pocock, 274. 100  Coke, 1.173. 101  Burgess, 11, 102. 102 Ibid. 103 W. Shakespeare, Richard II, in The Norton Shakespeare, eds. S. Greenblatt, W. Cohen, J.E. Howard, and K. Eisaman Maus (New York and London: W.W. Norton, 1997), 2.1.200.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

38  Custom, Common Law, and the Constitution

V.  Custom and the Politics and Poetics of the Ancient Constitution Having focused on the complementary ways in which the temporality of custom worked, I turn in this section to its more explicit deployment in the political sphere, where custom and time immemorial together played a crucial role in debates about the source and extent of the monarch’s authority, both within and outside the borders of England; the possibility of religious and political resistance; and the legitimacy of political expansion. Each of these debates shaped the ­contours of England’s identity. We might think of common law as a specialized legal system replete with esoteric mechanisms for adjudicating the ownership of property and thus having little to do with larger political debates. Yet, as legal ­his­tor­ians have shown, far from “politically innocent,” it was in fact central to “opinions about the commonweal.”104 Precisely because of its status as im­me­mor­ ial, common law provided the basis not only for Henry VIII’s claim to supremacy in England, but also for parliament’s arguments for its own rights and privileges— all the while supported by chronicle historians. In the sixteenth century, England’s politics were legally constituted, just as its law was politically constituted, via the concept of custom. Scholars of the seventeenth century have long recognized common law’s political utility during the Civil War and Revolution, but more recently historians like Cromartie and Janelle Greenberg have made the case that common law, especially understood as custom, had political meaning and clout in the sixteenth century. While common law itself provided no totalizing, definitive statement on monarchical authority, it was put to different political uses by different people, even as its meaning remained complex, multivalent, and ­contested. It thus was integral to how some early modern thinkers sought to define the English nation, and its temporality was inseparable from its political capacity to make change. The ancient constitution gained prominence during the reign of Henry VIII as a way to institute a dramatic change, the establishment of his supremacy over the Papacy as the head of the English Church. Thomas Cranmer assembled on Henry’s behalf the “Collecteana satis Copiosa,” a collection of documents that supposedly revealed that the king could govern the English church. It included the (forged) letter from Pope Eleutherius to King Lucius that proved English ­monarchs had been heads of the English church since ancient times and preceded papal jurisdiction.105 At the same time, the English crown appealed to the authority of common law as it sought to expand its reach over its subject within the

104  Cromartie, 106–7. 105  J. Greenberg, “St. Edward’s Ghost: The Cult of St. Edward and His Laws in English History,” in English Law before the Magna Carta: Felix Leibermann and Die Gesetze der Angelsachsen, ed. S. Jurasinski, L. Oliver, and A. Rabin (London: Brill, 2010), 281–2.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  39 realm, “encourag[ing] the belief that English common law was, in the strict sense, omnipotent.”106 Not long after, and ironically precisely because of the authority with which Henry VIII endowed it, the ancient constitution was employed to justify yet another political shift, providing a means for common lawyers and politicians to argue for limits to the Crown’s power.107 In 1566, for example, the jurist Edmund Plowden asserted that the king’s body politic was “founded . . . by common law only,” and, in this claim, he was supported not only by earlier legal treatises but also by sixteenth-century chronicle histories.108 Their ideas about “time im­me­ mor­ial” proved useful because at base they were telling a political story about England’s prior conquests. Fortescue’s description of England’s past conquests, quoted earlier, would be foundational for early modern commonweal thinkers. But Fortescue himself was making a political argument, since his text was an imagined dialogue between a chancellor and a prince, and hence an opportunity to persuade Prince Henry of his theory of “royal and political rule.” Coke was perhaps most vocal about the ancient nature of England’s legal and political institutions. Whether he was representative of early modern thought or an extreme instance remains a matter of debate among historians, but nevertheless even those who did not consider the ancient constitution quite as ancient as Coke did still believed that the unwritten status of common law meant that it had no identifiable point of origin.109 Although this absence did not mean common law was completely detached from the monarch—or conqueror—it did come to imply for Coke and others that its authority arose from the mutual approval of monarch and people. Thus, while it may seem odd that an eleventh-century history had such profound importance for the English polity, during the sixteenth century, writers turned to it over and again to articulate what they saw as the proper relationship between the monarch and his subjects. The temporality of custom grounded common law’s status as England’s “ancient constitution,” and this ­status, in turn, rendered it a political tool. The idea that common law was custom eventually enabled legal and political thinkers to emphasize the role of the English people, and not just the king (or even parliament), in engendering the ancient constitution. Medieval legal writings derived common law’s authority from the supposed approval by the King’s Counsel. For the Glanvill treatise, written in the twelfth century, common law was royal legislation, and it was good and just because it had been developed by a good king and his worthy advisers.110 For Fortescue, the customs of common law were simply the customs of the common lawyers. To the extent that Fortescue was interested in consent, it was as a sign that the king had taken good counsel.111 But the idea of the ancient constitution placed common lawyers, parliament, and 106  Cromartie, 3. 109  Burgess, 61.

107 Ibid. 108  BL Harleian MS 849 fol. 7, qtd. in Cromartie, 96. 110  Cromartie, 14. 111  Ibid., 23–4.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

40  Custom, Common Law, and the Constitution eventually the people front and center. Thus, it was crucial to the growing idea of consent. Fortescue’s theory of governance became popular in the sixteenth ­century, but Cromartie points out that its role as “one of the sources of English popu­lism would surely have astonished its inventor.”112 Instead, he identifies Christopher St. German as the originator of the idea that English law consisted of “populist custom.”113 In Doctor and Student, St. German explains that “The third ground of the law of England standeth vpon dyverse generall Customes of old tyme vsed through all the realme: which haue ben acceptyd and approvyd by our soueraigne lorde the kynge, and his progenytours, and all his subjects” (emphasis mine).114 While the criterion of the king’s acceptance and approval is unremarkable, the final clause “and all their subjects” (emphasis mine) is itself remarkable, since it makes the people’s approval of equal importance to that of the monarch.115 The belief that common law had been engendered by the people became an important aspect of its status as custom in early to mid-sixteenth-century legal abridgments such as Fitzherbert’s Magnum Abbreviamentum (1514–17) and Brooke’s La Grande Abridgement (compiled sometime before his 1558 death), even if they sometimes misinterpreted the sources upon which they made these claims.116 The mutual consent of monarch and people was beginning to function as that which legitimated custom. By the time we reach the later sixteenth ­century, years during which the majority of the authors analyzed in this book wrote, this idea was firmly established by legal thinkers including Edmund Plowden and Richard Hooker.117 The idea of “time immemorial,” that this is how it had always been, ironically enabled the shifts I have been discussing in this section. In fact, neither parliament nor common lawyers nor even Protestant dissidents advocated for change. Rather, the continuities of the past became politically decisive. Custom’s ability to make change played out on the religious front, becoming the basis of John Foxe’s theory of resistance; in stark contrast, it also helped the English assert their 112  Ibid, 31. 113  A. Cromartie, “The Idea of Common Law as Custom,” in The Nature of Customary Law: Legal, Historical and Philosophical Perspectives, eds. J.B.  Murphy and A.  Perreau-Saussine (Cambridge University Press, 2007), 206. 114  St. German, 45. William Muchall translates the final clause as “all his subjects”. See St. German, The Doctor and Student, ed. W. Muchall (Cincinnati: R. Clarke & Co., 1874), 17–18. 115  Cromartie, “Common Law as Custom,” 211. Cromartie contrasts this with Bracton’s earlier claim that “it will not be absurd to call [English unwritten customs] laws . . . since whatever has been rightly approved and decided with the counsel and consent of the magnates and the general agreement of the commonwealth with the previous authority of the King or prince has the force of law” (emphasis mine). Cromartie argues that Bracton drew upon but emended Digest’s definition of law (“the pronouncement of judicious men . . . the general agreement of the commonwealth”) to “emphasize royal power” (205). 116 Cromartie, Constitutionalist Revolution, 102. 117  Ibid., 141. By contrast, Brand asserts that even in the thirteenth century those who considered common law to be custom, such as Bracton and Glanvill, conceptualized it as the law of the land, rather than that of the king (even if it was administered by the king’s royal courts), which derived its authority from “its acceptance by that land or kingdom and its people over time” (26).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Time Out of Mind  41 dominion over Ireland when they sought to incorporate the Irish land into this history. Additionally, it played a role in parliamentary debates. The parliaments of Elizabeth I, Pocock has argued, began to “claim rights that were in fact new” by insisting that “what they desired was theirs by already existing law.”118 By the Apology of 1604, written in response to the perceived threat to parliamentary sovereignty by James I, the Commons could assert that “the whole body of their privileges should be recognized as theirs by right of time immemorial.”119 Thus, a temporal-political narrative was put to different uses by different people at different times. The past became politically dynamic. Before turning to the chapters that focus on literary works, I would like to pause here and consider how the dynamism of custom and the ancient constitution renders them both a poetics by virtue of the temporal schema “time im­me­ mor­ial.” By poetics, I mean specifically a process of making, which Renaissance literary theorists thought of not only in terms of the mechanical arts (or technē), but also, and more relevantly for my argument, in terms of world-making.120 In the opening lines of The Arte of English Poesie Puttenham defines the poet “as a maker,” calling our attention to the Greek etymology of Poeta, “poein [ποιεῖν], to make.”121 Philip Sidney proclaimed likewise in The Defence of English Poesie: “The Greekes called him a Poet, which name, hath as the most excellent, gone through other Languages. It commeth of this word Poiein, which is to make: wherein I know not, whether by lucke or wisedome, wee Englishmen have mette with the Greekes in calling him a Maker.”122 They both go on to explain the nature of the poet’s making as a process of “contriv[ing] out of his own brain” (Puttenham) or of “making things either better then Nature bringeth forth, or quite a newe, formes such as never were in nature” (Sidney).123 Sidney and Puttenham (among others) considered poesy a worldmaking activity; poets produced imaginative worlds that were not confined by parameters of the natural world, including

118  Pocock, 47. 119  Ibid., 48. 120  On the relationship between poiesis and the mechanical arts and on the status of poetry as a material artifact in the Renaissance, see R.  Kalas, Frame, Glass, Verse: The Technology of Poetic Invention in the English Renaissance (Ithaca, NY: Cornell University Press, 2007); P. Parker, Shakespeare on the Margins (Chicago: University of Chicago Press, 1996), Chapter Three; and H.S.  Turner, The English Renaissance Stage: Geometry, Poetics, and the Practical Spatial Arts, 1580–1630 (Oxford: Oxford University Press, 2007). On the idea of Renaissance worldmaking, see A. Ramachandran, The Worldmakers: Global Imagining in Early Modern Europe (Chicago: University of Chicago Press, 2015). For an analysis of Spenserian poetics that brings together the two meanings of poiesis, see J.K. Barret, Untold Futures: Time and Literary Culture in Renaissance England (Ithaca, NY: Cornell University Press, 2016), Chapter Two. 121 G. Puttenham, The Arte of English Poesie (1589), eds. F. Whigham and W. Rebhorn (Ithaca, NY: Cornell University Press, 2007), 93. 122 P. Sidney, Defense of Poesie, in Defense of Poesie, Astrophil and Stella, and Other Writings, ed. E. Porges-Watson (London: JM Dent, 1997), 87. 123  Puttenham, 93; Sidney, 88. The other ways of conceiving of fiction were in terms of mimesis (or representation) and in terms of prophecy (the poet as vates, or prophet). These also play a role in Sidney and, to a lesser extent, Puttenham.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

42  Custom, Common Law, and the Constitution “what men have done” (as historians are) or what they “have determined” (as ­lawyers are).124 My argument is not that common lawyers were self-consciously engaged in the act of fiction making or that they believed “time immemorial” itself was a fiction. Neither, though, do I believe that for common lawyers it was “nothing but a rhet­ oric­al flourish,” as Ibbetson would have it.125 But, like many legal concepts, ­custom requires acts of imagination; in this case, because of its strange temporal schema, custom encompasses the counterintuitive idea that communal practices are unchanging yet dynamic, longstanding yet always fresh. It conceptualizes time in a way that confounds sequence by looking back to a period before memory while insisting on no origin point at all. Common lawyers, politicians, and legal theorists generated imaginative worlds when they conceived of a past shaped by custom. Like Sidney’s poets, they created a space for imagining alternatives. In subsequent chapters I will argue that poets were attuned to the mythopoetic qualities of custom—and, by extension, the ancient constitution—and that it is these qualities that make it possible for literary writers to make use of the concept in their own writing, that is, to shape their own poiesis, or worldmaking. For example, custom structures not only the fictional worlds of Thomas More’s Utopia and Philip Sidney’s Arcadia, but also those of Whitney’s London, Spenser’s Ireland, and Gabriel Harvey’s and the authors of Sir Thomas More’s England. By drawing on the politics and poetics of the ancient constitution in particular, these authors experiment with commonweals, even ones with demotic possibilities, while at the same time registering the ancient constitution’s origins in a monarchical bid for more power. Their use of custom was not simply a matter of borrowing legal and political rhetoric, although in some instances they did so liberally. Rather, as we shall see, it is the temporal-poetic structure of custom that makes it transferrable to literature. To offer a couple of preliminary examples: In Chapter 3 on Gabriel Harvey and Edmund Spenser the idea of custom as having existed since time immemorial supports metrical experiments that paradoxically do not entail linguistic rupture. In Chapter 4 on Philip Sidney, the relationship between unwritten and written discussed in this chapter shaped Sidney’s sense of poetic authority especially in the Old Arcadia, where the boundaries between performance and writing converge and diverge in surprising ways throughout the poetry that appears in his prose romance. The literature I explore in the chapters that follow turns to custom as a means of navigating the relationship between the past and the future; custom offers them a flexible way to do so by overcoming chronology’s sequential mandates.

124  Sidney, 88. In this passage, Sidney starkly distinguishes between poets, historians, and lawyers, but at other moments he points out the poetic nature of the latter two’s productions. 125  Ibbetson, “Custom in Medieval Law,” 166.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

2

The Commonwealth of Custom in Thomas More’s Utopia Few of Thomas More’s contemporaries could resist the appeal of his polysemic patronymic. Friends and foes alike drew upon a network of puns: morose (morosus), mulberry tree (morus), the memento mori, delay (moror), and the indispensable English adjective, more. An intricate network of homonyms emerged from another meaning of More’s name, moor or black-a-moor; the syno­nym negro was even used as More’s code-name in sensitive political communications.1 The Latin pun that is central to this chapter, mos or mores, likewise circulated widely. It was used to praise, to commemorate, and, by at least one nobleman, to insult.2 According to John Hoddesdon’s Thomas Mori Vita & Exitus (1652), Sir Thomas Manners, First Earl of Rutland, deployed it to imply that More had been corrupted by his success: “My Lord, Honores mutant mores,” honors change manners.3 Yet, despite the great critical sensitivity to More’s puns, the ubiquitous presence of this particular one in Utopia has been entirely overlooked. More consistently uses the term mores to describe the customs of the Utopians, making them quite literally his signature topic in Utopia. That this pun has slipped by for so long is symptomatic of a broader lack of  attention to the category of custom in Utopia. Although the term appears (in different forms) no fewer than ninety times, J.H. Hexter makes no mention of it in his influential introduction to Utopia in The Complete Works of St. Thomas More.4 When discussed by critics at all, custom is set in opposition to nature. It is identified with Europeans and their perverse habits (perverse consuetudo), in ­contrast to Utopian practices, which are interpreted as natural.5 Yet custom is central to the Utopian commonwealth. The Utopian system of housing and city planning, method of senatorial deliberation, mode of dress, manner of dining, travel practices, premarital courtship, garden growing, and chicken hatching—all 1  P. Parker, “What’s in a Name: And More,” Sederi 11 (2002), 101–50. 2  For the fullest account of puns on More’s name, see G. Marc’hadour, “A Name for All Seasons,” in Essential Articles for the Study of Thomas More, eds. R.S.  Sylvester and Germain Marc’hadour (Hamden: Archon Books, 1977), 539–62. 3 J. Hoddesdon, Tho. Mori Vita & Exitus (London: E. Cotes, 1652), 137. 4 J.H.  Hexter, “Introduction,” in Utopia, Vol. 4, The Complete Works of St. Thomas More, eds. E. Surtz and J.H. Hexter (New Haven: Yale University Press, 1965), xv–cxxiv. 5 L. Manley, Convention, 1500–1750 (Cambridge, MA: Harvard University Press, 1980), 109.

Custom, Common Law, and the Constitution of English Renaissance Literature. Stephanie Elsky, Oxford University Press (2020). © Stephanie Elsky. DOI: 10.1093/oso/9780198861430.001.0001

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

44  Custom, Common Law, and the Constitution these are described as customs. Far from rejecting the notion of custom, then, Utopia assumes its efficacy in shaping human behavior. Indeed, custom is the very foundation of Utopia. As Hythloday points out in Book I, Utopia has very few laws (paucis legibus); instead, it has a system of customs (eorum moribus).6 In addition to the binary of nature and custom, More points us to the one between custom and law. The Utopian commonwealth, this chapter will argue, thus evokes the peculiarity of the English system, its common law. Critics, of course, have not ignored the legal context of Utopia, but they tend to treat it as a veiled critique of how common law diminished the role of equity in England’s legal system. In these accounts, Utopia possesses that which England increasingly lacks.7 Yet this argument requires us to overlook the important ­distinction made by Hythloday and to collapse custom into law. In this chapter, I argue that attending to the similarities between Utopia’s and England’s constitutional dispensations allows us to read Utopia as positing the fictional sphere as a place in which to explore ­custom’s constitutional promise at an early moment in its (uneven) rise to dominance. At the same time, the title that Erasmus used for his satirical tract, Moriae Encomium, or The Praise of Folly, makes an alternate perspective inescapable—as is often the case with More’s work. “What put such a notion in my mind?” Erasmus asks in a prefatory letter addressed to More: My first hint came from your family name of More, which is just as close to Moria, the Greek word for folly, as you are remote from the thing itself . . . I had a suspicion that this joke would be agreeable to you because you particularly enjoy jests of this sort – that is, if I don’t flatter myself, jests seasoned with a touch of learning and a dash of wit.8

Thus, while the Latin mores signals the centrality of custom to the Utopian ­commonwealth, this Greek meaning, folly, warns us to be wary of taking custom’s role at face value. The constitutional resemblance between Utopia and England foregrounds tensions not only between common law and other jurisdictions, as other critics have argued, but crucially within common law itself. If the Morian paronomasia inspired Erasmus’s greatest work, then the Erasmian paroemia, or the proverb, provided More with an apposite rhetorical figure for his own. Proverbs and commonplaces, often traceable to Erasmus’s 1508 Adagiorum 6 T. More, Utopia, The Complete Works of St. Thomas More, Vol. 4, eds. E. Surtz and J.H. Hexter (New Haven: Yale University Press, 1965), 102-3. All Utopia quotations are from this edition and are hereafter cited within the text. 7  See Cormack, 102–29; A.J. Majeske, Equity in English Renaissance Literature: Thomas More and Edmund Spenser (New York and London: Routledge, 2006), 63–92; M.  Zilko, “The Influence of Sir Thomas More’s Career as a Lawyer and Judge on the Writing of Utopia,” Parergon 17.1 (1999), 45–62. 8 D.  Erasmus, The Praise of Folly and Other Writings, ed. R.  Adams (New York and London: W. W. Norton, 1999), 3.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  45 Chiliades, his ambitious project to catalog and explain the often-lost meanings of Greek and Latin proverbs, feature heavily in More’s text. In his printed marginalia to the 1517 edition of Utopia, Erasmus takes pains to point them out.9 Both texts espouse similar views on war, religion, the church and priesthood, the trappings of courtly life, and even on what More calls the “principal foundation of the whole structure” of Utopia, communal property (245). Noting these thematic connections, Margaret Mann Phillips calls the 1515 edition of Erasmus’s collection “The Utopian Edition.”10 Yet the link between Utopia and the Adages is not just topical, as critics have long recognized; it is also formal. In her discussion of the Adages, Kathy Eden has shown that proverbs engender what I will be calling a discursive commons. Erasmus figures proverbs as a kind of shared property, which he in turn “has ­collected to be used in common by both writers and readers alike.”11 More’s use of proverbs should be understood in this context. They are the discursive counterpart to More’s efforts to imagine a political commons, and, as this chapter will show, both are rooted in the discourse of custom. Like custom in common law, in Erasmus’s account, commonplaces possess indeterminate, corporate authority and have priority over the written record. Rather than pursuing two distinct concerns, then, the text explores and is profoundly shaped by the ­conjunction of common law and the commonplace. Their imbrication is essential to More’s text. Ironically, what More claims to be “most absurd” (45), most radically different from England in his imagined society, the idea of a ­commons—a shared system or political space whose authority is constituted by its very commonality—is actually integral to the society in which he lived and tradition in which he wrote. One of the earliest fictive texts of the English Renaissance, then, is doubly ­predicated on custom. Early on in the century, custom inspires and fuels More’s experiment in politics and form. Perhaps even more striking, Utopia brings together two traditions that were thought to be distinctly incompatible. More ­imagines a profound connection between the classical and native pasts that often seemed to early modern writers impossibly at odds with one another. Utopia ­creates a space for a classical English humanism by linking the common law and the commonplace via custom. More’s humanism is not hindered by but rather is alive to and animated by the tensions he perceives in both discourses.

9  While Peter Giles claims credit for the marginalia in his prefatory letter, the title page of this edition ascribes them to Erasmus. 10 M.M Phillips, The “Adages” of Erasmus: A Study with Translations (Cambridge: Cambridge University Press, 1964), 93. 11 K. Eden, Friends Hold All Things in Common: Tradition, Intellectual Property, and the Adages of Erasmus (New Haven: Yale University Press, 2001), 7.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

46  Custom, Common Law, and the Constitution

I.  Custom in English Common Law and the Classical Commonplace Utopia was written during the concurrent rise of Northern European humanism and emerging importance of common law, and its author was at the center of both. As such, More was in a unique position to notice what modern scholars still have not: there were profound similarities between common law and the proverb or commonplace, arguably the most important humanist rhetorical figure. Before turning to Utopia itself, this section will trace the overlooked connection between common law and commonplaces. Common law was becoming England’s dom­in­ ant legal form. Henry VIII’s reign was characterized by an increasingly centralized jurisdiction, as the three superior courts of common law, the King’s Bench, Common Pleas, and the Exchequer, accrued more and more power. Even outside of London, judges of common-law courts who were sent to the assizes gained more and more authority.12 More happily would have expanded their jurisdiction to include cases of equity, and even offered common-law judges the opportunity to do so, according to his son-in-law William Roper. When they turned him down, he mocked them, telling Roper: “[F]or they see that they may by the ­verdict of the jury cast off all quarrels from themselves upon them . . . ”13 At the same time, the humanist project was getting off the ground in Northern Europe, and one could say that Erasmus’s collection of adages, or sayings that were “morally efficacious and rhetorically powerful,”14 was emblematic of the project as a whole. The amount of time and energy that Erasmus put into his ever-expanding collection of proverbs might now strike us as strange, but commonplaces formed a crucial component of the humanist project, and have been the renewed object of critical attention.15 In the Prolegomena to the 1508 edition, Erasmus explains that adages contribute to four arenas with which humanism is most concerned, “phil­ oso­phy, persuasiveness, grace and charm in speaking, and the understanding of the best authors.”16 Citing Aristotle, he insists that they represent “the vestiges of 12 J.S. Cockburn, A History of English Assizes, 1558–1714 (Cambridge: Cambridge University Press, 1972), 23, 155; J.H. Baker, The Oxford History of the Laws of England, Vol. 6 (Oxford: Oxford University Press, 2003), 8, 121. 13 W.  Roper, “The Life of Sir Thomas More (c. 1556),” in A Thomas More Source Book, eds. G. Wegemer and S. Smith (Washington: Catholic University of America Press, 2004), 38. 14 M.T.  Crane, Framing Authority: Sayings, Self, and Society in Sixteenth-Century England (Princeton: Princeton University Press, 1993), 60. 15 A.  Blair, The Theater of Nature: Jean Bodin and Renaissance Science (Princeton: Princeton University Press, 1992), among others, prompted this renewal. See also A.  Moss, Printed Commonplace-Books and the Structuring of Renaissance Thought (Oxford: Clarendon Press, 1996) and Crane, Framing Authority. 16 D. Erasmus, Adages: I i 1-I v 100, in The Collected Works of Erasmus, Vol. XXXI, trans. M. Mann Phillips, ed. R.A.B. Mynors (Toronto: University of Toronto Press, 1982), 14. All citations from the Adages are to The Collected Works of Erasmus unless otherwise noted. All forthcoming quotations from the Adages are cited in-text by volume number and page; the adages themselves are referenced by section number.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  47 that earliest philosophy” and can be classified, for the purpose of law and rhetoric, as a form of “evidence” (14-15). Aristotle (quoted by Erasmus) elaborates with an example that falls perhaps more on the “rhetorically powerful” than “morally efficacious” side of adages: “if one wishes to persuade someone not to make close friends with an old man, he will use as ­evidence the proverb that one should never do an old man a kindness” (16). Adages enable orators to endow their speeches with beauty, dignity, and authority, and, thus, represent the “building blocks of ­literary style” (14). They nurture the copia for which early modern humanist ­writers strove. But, as fragments and allusions, they could also be quite difficult to understand, and thus, lack of knowledge of the adages of classical antiquity “cause[d] all sorts of errors when translating from Greek to Latin” (14). Erasmus’s project, then, was to recover their meaning, both for consumption of classical texts and the production of new writing. Erasmus saw his work as replicable, at least to a certain extent. The Adages, along with Erasmus’s De Copia (1512), had a profound influence on humanist pedagogy. In De Ratione Studii, the concluding section of De Copia, Erasmus advised students to mark in some way “any striking word[s];” arguments with “brilliant invention[s]”; instances of “brilliant in the style”; and “adage[s], his­tor­ ic­al parallel[s], and maxim[s]” in the classical texts that they read.17 “In order to enhance the value of that exercise,” Erasmus further instructs, “he should have at the ready some commonplace book of systems and topics, so that wherever something noteworthy occurs he may write it down in the appropriate column.”18 Armed with their own collection of commonplaces, students would possess “­matter for composition.”19 Largely because of Erasmus’s De Copia, addressed to John Colet (the founder of St. Paul’s School), the dual process of “gathering” ­commonplaces and “framing” them in one’s own writing became the basis of the Northern humanist curriculum and was particularly influential in England. (As we shall see, More’s Utopia was exemplary of the process of gathering and framing.) It is no wonder, then, that his Adages became a best seller. Fifty-five editions and seventy-two epitomized versions were printed between 1508 and 1700. In 1539, Richard Taverner wrote an English translation that went through multiple editions.20 Beyond the use value of the commonplaces for reading and composition, they also provided a conduit to the classical past, granting early modern scholars and students access to classical habits of thought and cultural codes.21 According to Crane, they were “a central mode of transaction with classical antiquity,” and in 17 D. Erasmus, De Ratione Studii, ed. C.R. Thompson, in The Collected Works of Erasmus, Vol. XXIV (Toronto: University of Toronto Press, 1978), 670. 18  Ibid, 672. 19  Crane, 60. 20  D.  Kinney, “Erasmus’ Adagia: Midwife to the Rebirth of Learning,” Journal of Medieval and Renaissance Studies 11.2 (Fall 1981), 169. 21  Crane, 3.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

48  Custom, Common Law, and the Constitution the words of one editor of the Adages, commonplace collections are “unsurpassed” as a “Renaissance expression of the love of antiquity.”22 Both Crane and Daniel Kinney argue that the commonplace-as-fragment could be just as im­port­ ant to the Renaissance understanding and use of classical antiquity as classical works in their entirety. With the Adages and De Copia, Erasmus implied that “fragments were better left fragments and could be best assimilated as such.”23 Rather than attempt to “reintegrate fragments . . . into vital and organic wholes” or to present the classical past in a series of heroic biographies, as Boccaccio did, Erasmus showed that classical speeches could be appreciated aesthetically for their use of proverbs alone, and even for the ways in which they seemed to be constructed “to be weighed and assimilated in fragments.”24 Thus, rather than being a flaw of the materiality of the transmission of the past, the fragmentary nature of classical texts was valuable in and of itself. Despite the historical coincidence of classical humanism and common law, the two could be understood as in direct tension with one another. In continental Europe the law was shaped by the classical past in at least two ways, by the “Reception,” which was practically oriented, and by legal humanism, which was more intellectually oriented. The Reception, or more precisely Reception(s), refers to the increasing Romanization of substantive law and legal institutions that has been ongoing since at least the end of the eleventh century in the majority of western European countries—though never in identical ways.25 Legal humanism began in France during the sixteenth century with the work of Andrea Alciato, and thus was referred to as the mos gallicus, as opposed to the mos italicus, which was a rival school of interpretation of Roman law that began in Bologna with medieval Glossators and Commentators. Broadly speaking, legal humanism was philological in focus and, thereby, turned law into historical study, connecting it with Roman society.26 Legal humanists trained their attention on Justinian’s Digest, whose meaning and language, in their view, had been corrupted by scholastic interpreters and by the introduction of the barbarisms of a Gothic language. Lorenzo Valla, a precursor to the mos gallicus, first aimed to restore the Digest to its “original” state in his In Bartoli de insigniis et armiis libellum (first

22  Ibid.; W. Barker, The Adages of Erasmus (Toronto: University of Toronto Press, 2001), x. 23  Kinney, “Erasmus’ Adagia,” 172. 24 Ibid. 25  Although the Reception was different in every country, it can be broadly conceived as taking place in three phases: the period of its use of Roman law for (1) the formation of a European ius ­commune from the end of the eleventh century until the sixteenth; (2) the development of national legal systems from the sixteenth through eighteenth centuries; and (3) the development of national codes, including outside of western Europe, in the nineteenth century. See P. Du Plessis, Borkowski’s Textbook on Roman Law, 5th ed. (Oxford: Oxford University Press, 2010), 369, 371–2. 26  The longstanding dichotomy between mos gallicus as purely academic and mos italicus as purely practical has been recently questioned by scholars. For an overview of this debate, see J.W.  Cairns, “Introduction,” in Reassessing Legal Humanism and its Claims: Petere Fontes?, eds. J.W.  Cairns and P.J. Du Plessis (Edinburgh: Edinburgh University Press, 2016), 1–8.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  49 published in 1517).27 In general, receptions and legal humanism were distinct phenomena—the former did not rely on the latter and, in fact, mostly predated it—but they shared in common the idea that European legal systems were (or could be made) compatible with the classical legal past. In England, things were different. First, England was almost entirely immune to the “Reception”; unlike other countries, it used what was thought of as native common law as its national, central legal system. This phenomenon (or lack thereof) has long puzzled scholars, but most attribute it to lawyers developing their own methodologies and even dialect.28 Second, there was no robust trad­ ition of legal humanism. David Ibbetson even begins a recent essay arguing for Gabriel Harvey’s interest in legal humanism by saying, “A paper on English legal humanism may be, almost by definition, a paper without a subject.”29 The sense that legal humanism had no purchase in England emerges from the fact that the movement took as its focus a foundational text of Roman law, but in England there was no foundational text of classical origin to which English ­lawyers and scholars could return, restore, and purify.30 By and large, common lawyers were unperturbed by the lack of a reception, but some humanist thinkers were troubled by it. Their arguments about the reception and legal humanism were intertwined. More precisely, those who argued for a reception of some kind tended to marshal legal humanist ideas. Indeed, in the 1530s, university-trained scholars expressed dismay at the barbaric language (law French) and content of common law, much as Lorenzo Valla had done about medieval civil law some sixty years before. In A Dialogue Between Reginald Pole and Thomas Lupset (1529–32), an early example of English thinking on the commonwealth, the humanist and sometime royal servant Thomas Starkey went so far as to propose that common law’s “barbarous c­ ustoms and ordinances” should be “wiped away” and Roman civil law installed in its place.31 In 1535, the more successful humanist politician Richard Morison ­presented to Henry VIII a treatise entitled A Discourse Touching the Reformation 27 D.R.  Kelley, Foundations of Modern Historical Scholarship: Language, Law and History in the French Renaissance (New York: Columbia University Press, 1970), 40–1. Kelley provides an extensive account of legal humanism in Parts I and II of this book. For further discussions of legal humanism, see also Cairns, “Introduction,” as well as A.  Wijffels, “Antiqui et Recentiores: Alberico Gentili— Beyond Mos Italicus and Legal Humanism” and D.  Osler, “Humanist Philology and the Text of Justinian’s Digest,” both in P. du Plessis and J.W. Cairns, eds. Reassessing Legal Humanism and Its Claims: Petere Fontes? (Edinburgh: Edinburgh University Press), 2016. 28 J.H. Baker, An Introduction to English Legal History, 4th ed. (Oxford: Oxford University Press, 2005), 12; F.W. Maitland raises the question in his 1901 Rede Lectures, published as English Law and the Renaissance (Cambridge: Cambridge University Press, 1901), 4–5. 29  D. Ibbetson, “Humanism and Law in Elizabethan England: The Annotations of Gabriel Harvey,” in Reassessing Legal Humanism, 282. Ibbetson accepts J.H.  Baker’s use of the term “Renaissance learning” rather than “legal humanism” to discuss English lawyers’ ­similarities and differences from continental lawyers. 30  Baker, 4–5. 31 T.  Starkey, A Dialogue Between Reginald Pole and Thomas Lupset, ed. K.M.  Burton (London: Chatto and Windus, 1948), 173–4. The manuscript was not published until the nineteenth century.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

50  Custom, Common Law, and the Constitution of the Laws of England. Rather than replace England’s legal system, Morison, in what could also be considered a radical move, recommended that “common laws . . . that now be dispersed and uncertain . . . be gathered together and made ­certain; that now be in no tongue might be reduced into the Latin tongue.”32 Morison calls not for the use of Roman law per se, but rather for writing down unwritten laws modeled on Justinian.33 Utopia predates Starkey’s and Morison’s manuscripts, but More—who spent time at Oxford and was friends with important legal humanist figures like Guillaume Budé—was likely well aware of both the reception and legal humanism. To be sure, More was not involved in the types of extensive philological arguments that took place between legal humanists or between legal humanists and their adversaries, adherents of mos italicus. I would argue, though, that More, in a similar vein to Starkey and Morison, recognized the theoretical (and practical) incompatibility between the humanist project with which he was engaged and the form of law that he practiced, taught, and enforced. I propose that he registered this tension in Utopia and that custom was the hinge that provided for him a ­connection between the two. Thomas More’s unusual biography likely heightened his awareness of the ­tension between these two arenas. His legal training was in common law, first at the New Inn, one of the chancery inns where students of common law typically began their studies, and then at Lincoln’s Inn. As a student, he would have learned from participating in moot courts, an exercise to practice pleadings and oral argument, and by listening to readings. These were extended analyses of a statute, which often entailed the discussion of a principle of common law, by a barrister who had already been called to the bar and bench, which were then followed by “disputations” in which other barristers, benchers, and even judges in attendance challenged the illustrative cases that the reader had put forth.34 These cases were often astonishingly far-fetched, and Karen Cunningham has argued that as such they encouraged “speculative play” and the “multiplication of possibilities and positions.”35 Thus mooting may well have influenced More’s literary writing. In 1514, he was elected to give the most prestigious reading, during the 1515 Lent term, which J.H. Baker describes as “the chief event[] in the educational cycle.”36

32  Qtd. in S.E.  Thorne, “English Law and the Renaissance,” reprinted in Essays in English Legal History (London: Bloomsbury, 1984), 190–1. Morison’s text exists only in manuscript form. 33  Scholars tend to dismiss or downplay the importance of Starkey and Morison’s critiques because their projects never took off and, thus, there was “no threat at all” to English law from Roman law, as Thorne argued in his rebuttal to Maitland’s Rede Lecture (Thorne, 187). Even though there was no  practical threat, these important Henrician thinkers make it clear that Roman law did pose a ­conceptual one to common law. 34 Baker, Oxford History, 464–5. 35 K. Cunningham, Imaginary Betrayals: Subjectivity and the Discourses of Treason in Early Modern England (Philadelphia: University of Pennsylvania Press, 2002), 32. 36 Baker, Oxford History, 464–5.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  51 His reading would have been attended not only by students but also by judges and serjeants who were former benchers.37 More also held various offices at Lincoln’s Inn, serving as a pensioner (i.e., financial accountant), a butler, a marshal, and finally as one of the Inn’s four governors.38 During these same years, More was practicing law, eventually acting as a judge in multiple capacities. He was a legal adviser to London companies and was admitted as an honorary member to the Mercer’s Company. In 1510, he was appointed Under-Sheriff of London, and thus served as judge in Sheriff ’s Court and represented the city at the common-law courts of Westminster. He also worked for the Court of Chancery, which handled equity cases, as a part-time examiner and arbitrator.39 From at least 1494 (and perhaps earlier, given that his father John was a common lawyer as well), More was steeped in the workings of common law and would continue to be so—as a member of the House of Commons, as part of the King’s Council, and finally as Lord Chancellor at least until his break with Henry VIII. At the same time, More was a key member of the international humanist ­community out of which Erasmus’s project emerged. During his two years as a student at Oxford, he was introduced to this world by the English humanist scholars Thomas Linacre, John Grocyn, and John Colet. His introduction to Erasmus in 1499, during the latter’s time in England, both deepened and broadened these connections. One need look no further than Utopia itself for evidence of More’s embeddedness in this community. It was written in a classicized Latin and ­contains letters and commendations by a panoply of humanist thinkers, including Guillaume Budé, Jerome de Busleyden, John Demarais, Peter Giles, and, of course, Erasmus himself. The earliest editions were published in some of the great centers of humanist learning by some of the great printers of humanist texts: in Louvain by Dirk Martens (1516), in Paris by Gilles de Gourmont (1517), and in Basel by Johann Froben (1518).40 Thus, the same experiences that would have made him attuned to the differences between the (supposedly) native common law and the classical commonplace also made him uniquely able to perceive their resemblances. Most notably, commonplaces and common law draw upon remarkably similar models of authority. Both Erasmus and common lawyers emphasize the unwritten nature of their subjects and their existence beyond the boundaries of historical time. They thereby position common law and commonplaces against a single, centralized

37 J.  Guy, Thomas More: A Very Brief History (London: Hodder, 2000), 43; Baker, Oxford History, 463. 38  Guy, 43. 39 The Court of Chancery also handled a small number of common-law cases. Baker, Oxford History, 171. 40  For more details, see T.  More, Utopia: Latin Text and English Translation, eds. G.  Logan and R. Adams (Cambridge: Cambridge University Press, 1995), Appendix.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

52  Custom, Common Law, and the Constitution authority that neither can escape fully. It is precisely this shared tension that More recognizes and exploits in his own text. In common law, this tension emerged from its positioning as custom. As opposed to local manorial law, common law was considered “common” in the sense that it was shared by the entire nation. In contrast to Roman or civil law, it was “common” in that it was a native, rather than foreign, legal form. In fact, in statutes and judicial records, common law was often referred to as “the common custom of the realm.” As Bracton (c. 1235) explained: “Though in almost all lands use is made of the leges and the jus ­scriptum, England alone uses unwritten law and custom [iure non scripto et ­consuetudine]”; he reminded readers that it is not “absurd” to consider these ­customs leges since they have “the force of law.”41 One of More’s adversaries, Christopher St. German, likewise viewed custom as fundamental to common law.42 In Doctor and Student (1528), he writes: The thyrd grounde of the lawe of Englande standeth vpon dyuerse generall Customes of olde tyme vsed through all the realm . . . the sayd customes . . . haue bene alwayes taken to be good and necessarye for the common welth of all the realme. Therfore they haue optayned the strengthe of a lawe, in so moche that he that doth agaynst them, doth agaynst Iustice.43

Similarly, although John Fortescue in De Laudibus Legum Angliae (c. 1468) explained that “all human laws are either law of nature, customs, or statutes,” he distinguished between England and other countries by insisting that “the customs of the English are not only good but the best.”44 Common law’s basis in custom meant it was interpreted to suggest certain indelible features. As we have seen in Bracton, it was an unwritten form of law; and, unlike civil law, common law had no official texts that outlined its tenets. 41  “Cum autem fere in omnibus regionibus utatur legibus et iure scripto, sola Anglia usa est in suis finibus iure non scripto et consuetudine . . . Sed non erit absurdum leges Anglicanas licet non scripta leges appellare, cum leges vigorem habeat . . . ” G.E. Woodbine ed., Bracton on the Laws and Customs of England, Vol. II, trans. S. Thorne. Cambridge, MA: The Belknap Press, 1968, 18–19. 42  For a fuller account of St. German’s multiple bases of English law, see Chapter 1, section II. More and St. German would come to disagree vehemently over the relative status of common law and canon law in the context of Henry VIII’s break from the papacy. For an account of their polemical back-andforth, see J. Guy, “Thomas More and Christopher St. German: The Battle of the Books,” in Reassessing the Henrician Age: Humanism, Politics, and Reform, 1500-1550, eds. A. Fox and J. Guy (Oxford: Basil Blackwell, 1986), 95–120. Although this controversy postdates the publication of Utopia, More’s ­skepticism toward common law can already be glimpsed in this text. 43  C. St. German, Doctor and Student, eds. T.F.T. Plucknett and J.L. Barton (London: B. Quaritch, 1975), 45. 44 J. Fortescue, On the Laws and Governance of England, ed. S. Lockwood (Cambridge: Cambridge University Press, 2002), 24, 27. Although De Laudibus Legum Angliae was not published until 1545–6, Fortescue, who was at one point England’s Chief Justice, influenced lawyers and politicians long before. His text was cited by St. German and by John Rastell in Liber Assissarum decades prior to its publication. See also J.  Fortescue, De Laudibus Legum Angliae, ed. S.B.  Chrimes (Cambridge: Cambridge University Press, 1942), xcix, civ.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  53 Rather, common lawyers relied upon a combination of common learning, treatises, abridgements, and case reports. As Bracton and St. German describe it, common law derived its authority from both the king’s approval and its use and practice by the English people—rather than from the written edicts of a single ruler, such as a Roman emperor or a French monarch. As such, it was imagined to have existed since “time immemorial” and thus to have possessed no locatable moment of origin. Fortescue famously described England’s laws as unaltered by a series of conquests: “The kingdom of England was first inhabited by Britons . . .  then it was possessed by Saxons . . . Then for a short time the kingdom was dom­in­ ated by Danes, but finally by Normans . . . And throughout the period of these nations and their kings, the realm has been continuously regulated by the same customs as it is now.”45 England’s allegedly invincible native legal system emerged from a process of communal consent rather than compulsion. According to Fortescue, as the head of a dominium politicale et regale (a political and royal ­government), rather than a dominium regale, such as France, the king of England “is not able to change the laws without the assent of his subjects.”46 The people, Fortescue continues, must be “ruled by laws that they themselves desire.”47 Thus, common law was also “common” in the sense that it was imagined to have a ­collective source of authority. The classical proverb or commonplace might seem to have little connection to legal custom in the resoundingly native common law. Yet, as described by Erasmus and his classical predecessors, proverbs are a form of customary language that operates much like the legal concept of custom. In the Prolegomena to the Adages, Erasmus highlights the oral nature of proverbs and thus emphasizes both their indeterminate, corporate authority and their priority over the written record. He offers multiple explanations for how “proverbs got into popular speech”: They enter in from “the oracles of the gods”; “the sayings of the sages”; from “some very ancient poet” belonging to the time when verses were “sung at feasts”; or they are “snatched from a word rashly spoken” (XXXI, 4–5). Although eventually written down, notably by Erasmus himself, proverbs maintain their status as an unwritten form of knowledge, much as common-law custom was to do during the early modern period. Erasmus draws a distinction between the perishable, material nature of writing and the more enduring oral tradition: “So true is it that what vanishes from written sources, what could not be preserved by inscriptions, colossal statues and marble tablets, is preserved intact in a proverb” (XXXI, 16–17). This passage suggests that oral proverbs represent not simply a different means of transmitting information, but a different kind of knowledge altogether, one that cannot be encoded in monumental or official forms of writing.

45  Ibid., 26.

46  Ibid., 17.

47 Ibid.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

54  Custom, Common Law, and the Constitution Erasmus’s ubiquitous citations of classical sources may appear to differentiate proverbs from English law because they seem to reveal an investment in proverbs’ originary authorial moment. But Erasmus does not believe that a proverb’s author or its first usage can ever be established. Classical writers themselves often indicate that their sayings are already proverbial. For example, Terence, a source for “Amicorum communia omnia” (“Friends hold all things in common”), identifies the phrase as an “old proverb” (Adages I.i.1; XXXI, 29). Erasmus suggests that the proverb even antedates Socrates, who “from this proverb . . . deduced that all things belong to all good men” (XXXI, 29). In his discussion of proverbs as rhet­ oric­al evidence, Quintilian refers to the proverb’s existence from time out of mind: “These sayings would not have endured for all time [aeternum] if they had not seemed true to everybody.”48 Walter Ong succinctly describes the diffuse nature of proverbs’ authority: “Everybody is quoting everybody else, and has been for tens of thousands of years before the written records began.”49 Finally, lacking a point of origin and, therefore, a single authority, proverbs, like common law, depend upon communal assent for their rhetorical value, as Quintilian indicates when he describes the persuasive power of proverbs in his Institutio Oratio: “Popular sayings which command general assent will also be found not without value as supporting material” (XXXI, 16).50 Erasmus goes ­further than Quintilian by imagining that proverbs call into being a kind of commonwealth: For if τò πιθανόν, the power to carry conviction, holds the first place in the achievements of persuasion, what could be more convincing, I ask you, than what is said by everyone? What is more likely to be true than what has been approved [comprobauit – also assented to, sanctioned] by the consensus, the unanimous vote, as it were, of so many epochs and so many peoples? (XXXI, 17)

Erasmus’s language here takes on a political cast, as he imagines proverbs being put to a vote in a transtemporal, transnational senate.51 The “commons” of the commonplace exceeds that of a nationally bound common law. Erasmus’s project would only continue to expand the bounds of this community. 48 Quintilian, Institutio Oratio, Vol. II, trans. Donald  A.  Russell (Cambridge, MA: Harvard University Press, 2002), 453. 49  W.J.  Ong, “Commonplace Rhapsody: Ravisius Textor, Zwinger, and Shakespeare,” in Classical Influences on European Culture, A.D. 1500–1700, ed. R.R. Bolgar (Cambridge: Cambridge University Press, 1976), 102. 50  “Ne haec quidem vulgo dicta et recepta persuasione populari sine usu fuerint” (Quintilian, 450). 51  This is not the only moment in which Erasmus appeals to a transnational community in the Adages. Lisa Jardine argues that when Erasmus offers his own work on this project as an example of the proverb “Herculei labores” (“Herculean labors”), he constructs it as a “task carried out not for direct profit or fame” but rather “for the betterment of a world whose boundaries are not national boundaries.” L. Jardine, Erasmus, Man of Letters: The Construction of Charisma in Print (Princeton, Princeton University Press, 1993), 43.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  55 Yet the very qualities that common-law and commonplace discourse valued, a diffuse source of authority and a genealogy without origins, were also cause for anxiety. Common lawyers had to contend with common law’s peculiar position as not only an expression of the people’s will but also—crucially, for my argument— a tool of monarchical power. English kings insisted upon the supremacy of common law in their realm in order to protect their jurisdiction from foreign, papal power. As early as the fourteenth century, the Statutes of Provisors (1306) and Praemunires (1353) regulated papal jurisdiction where it conflicted with the laws and customs of the realm, decreeing that the latter two always took precedence.52 Henry VII encouraged praemunire actions, thus contributing to the emerging power of common law and paving the way both for Henry VIII to appeal to ­common law in order to insist upon his own supremacy over the Church and for  common lawyers to insist upon the law’s supremacy over the king.53 Even though common lawyers aligned common law with the people’s will, in practice it also had a history of being imposed upon different regions—especially those far from the nation’s center—by the monarch and his royal courts, even as these regions struggled to maintain their own local jurisdictions.54 As Bradin Cormack has demonstrated, common law’s supreme jurisdiction was often contested by other courts of law, especially during the early sixteenth century.55 Thus, the ­celebrated “common custom of the realm” was in fact a double-edged sword. In Erasmus’s project, a similar tension emerged: even as the proverb was ­configured as a literary form of language, held in common by a large body of people, it was also regarded as a crucial part of the scholar’s singular authority and ex­pert­ise. In his Prolegomena, Erasmus must justify his devotion to a rhet­ oric­al figure that is usually considered “too humble” to study, “scorned and held cheap by the popular mind” (XXXI, 9, 19). He distinguishes between two rhet­ oric­al categories, trivialis (jargon) and his own subject, paroemia (the proverb).56 Yet these two terms are rather too close for comfort. Both derive from the word 52 J.  Guy, “The Henrician Age,” in The Varieties of British Political Thought, 1500–1800, eds. J.G.A. Pocock, G. Schochet, and L. Schwoerer (Cambridge: Cambridge University Press, 1996), 24–30. William Blackstone defines praemunire as “introducing a foreign power into this land and creating imperium in imperio (a state within a state), by paying that obedience to papal process which constitutionally belonged to the king alone.” W. Blackstone, Commentaries on the Laws of England, Book IV: Of Public Wrongs, ed. R. Paley (Oxford: Oxford University Press, 2016), 76. 53  Guy, “The Henrician Age,” 24–30. 54  As early as the fourteenth century, the attempts of the monarchy to suppress local legal systems in the North and replace them with common law were met with resistance, and, at best, common law was combined with or influenced the local customs. See C.  Neville, “Remembering the Legal Past: Anglo-Scottish Border Law and Practice in the Later Middle Ages,” in Northeast England in the Later Middle Ages, eds. C. Liddy and R. Britnell (Woodbridge: Boydell, 2005), 43–55. 55  Cormack, 18, 32–4. 56  Erasmus uses the adjective trivialis to describe a style of writing marked by the use of jargon when he describes the origins of his project in the prefatory letter to Collecteana Adagorium, the earl­ ier incarnation of the Adages. He hopes the collection is “likely to bring some profit and pleasure to its prospective readers: those, I mean, who dislike the current jargon and are searching for greater ­elegance and a more refined style.” D. Erasmus, The Correspondence of Erasmus: Letters 1 to 141 (1481

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

56  Custom, Common Law, and the Constitution “road,” the Greek oimos in the case of the proverb and the Latin trivium in the case of jargon.57 Erasmus’s challenge is to show how proverbs travel everywhere without becoming trivial. To do so, he reassures his readers that “it is by no means everyone who can make right use of proverbs” (XXXI, 9). One must undergo a process of delicate and intricate training before being able to “aptly and fittingly insert a proverb into what [one] has to say” (XXXI, 19). Erasmus compares the skill required to “interweave them into discourse” with that necessary to “set a jewel deftly in a ring or weave gold thread into purple cloth” (XXXI, 19). Part of the talent of using a proverb resides in exploiting its flexibility. Erasmus praises the “varied use of proverbs,” instructing his reader, “you can put forward the same adage now in one shape and now in another” (XXXI, 20). This rhet­oric­al agility suggests that proverbs require interpretation and thereby contract the bounds of the community they call into being. Just as writers and orators must be taught to use proverbs, audiences must be trained to comprehend them. After all, most of Erasmus’s Adages are taken up by his explanations of them. To be common, then, is not necessarily to be commonly understood. Proverbs are sometimes used to hide meaning from some while revealing it to others, to be elusive in situations where it might be disadvantageous to speak plainly, for ­example, in the presence of children or in delicate political communications.58 There is a certain knowingness about proverbs: they are the rhetorical equivalent of a wink and a nod. Erasmus further limited the community to whom proverbs belong to those with finely honed Latin rhetorical skills. His aim in the Adages was to explain proverbs’ lost meanings so that readers could better understand the rediscovered texts of classical antiquity. The classical proverb had a vexed relationship to the vernacular. The three Dutch proverbs that merited their own entries in the Collecteana Adagorium (1500), the earlier incarnation of Erasmus’s project, were  subsequently removed from the 1508 and 1515 Adagorium Chiliades.59 When Erasmus admits that his “uneducated fellow-countrymen” use similar proverbs to those he records, such as “I must sleep on this,” which is akin to in to 1500), Vol. 1, trans. R.A.B.  Mynors and D.F.S.  Thomson, ed. The Collected Works of Erasmus (Toronto: Toronto University Press, 1974), 257. 57  Trivium describes when three roads come together in a crossroads. 58  Although Erasmus and More celebrate the proverb’s slipperiness, George Puttenham found that very same characteristic disquieting. In The Arte of English Poesie (London, 1589), he declares, “[W]e dissemble after a sort when we speake by common prouerbs.” Out of fear that they would “inueigle and appassionate the mind” proverbs (and all figurative language) were banned from the court of Athen’s Areopagite judges. Although he says that proverbs are “to be accompted . . . for vertues in the poetical science” because they bring “mirth and sollace,” he nonetheless continues to be troubled by the possibility that they may still breach decorum (128-9, 157). It is not clear whether Puttenham would categorize Utopia as a “poetical science” or as a kind of “pleading.” Erasmus himself is not un­aware of the proverb’s deceptive nature. One of the definitions he proffers is “a proverb is a manner of speaking which wraps up in obscurity an obvious truth” (XXXI, 3). 59  A. Wesseling, “Dutch Proverbs and Expressions in Erasmus’s Adages, Colloquies, and Letters,” Renaissance Quarterly 55.1 (Spring 2002), 88.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  57 nocte consilium (Adages, II.ii.43), it is unclear whether they came to this saying on their own or if it traveled from the Greek to the Latin and into the vernacular. Proverbs pose particular difficulty to the vernacular writers who translated them. As Catherine Nicholson points out, “the ideas that commonplaces express may have universal appeal, but their phrasing is often explicitly local.”60 Thomas Chaloner, the sixteenth-century translator of The Praise of Folly (a text replete with proverbial language), recognizes this when he laments that he could not “render woorde for woorde, nor prouerbe for prouerbe.”61 Chaloner characterizes his solution to this problem—to replace Latin proverbs that would “take no ­englishe” with vernacular ones—as a kind of transgression. He worries that other translators might think it “a deadly sinne,” thus articulating the perceived disparity between classical and native proverbs.62 Although Erasmus saw himself as addressing an elite audience, others thought he was expanding the circle of those in the know too far with his publication of the Adages. Eden draws attention to Erasmus’s anecdote about a failed attempt at scholarly collaboration, recounted in his commentary on “Festina lente” (“Make haste slowly”; Adages, II.i.1). Upon seeing his friend’s volume of the Suda, a vast Greek dictionary then believed to date from 1000 CE, wherein all the proverbs had been noted in the margins, Erasmus asked to borrow the volume so that he could transcribe them. Surprised by his friend’s refusal, he presses him for the reason. Eventually, “like a man who confesses under torture,” the friend admits that he has refused because “everything is now becoming public property from which scholars hitherto had been able to secure the admiration of the common people.”63 Erasmus’s friend fears that commonplaces are becoming too common. His anguish arises from the recognition that with this publication his authoritative status as a scholar has been destabilized and his friendship with Erasmus, marked by the sharing of knowledge (and manuscripts), altered irrevocably.64 Commonplaces, like common law, are thus subject to a constant expansion and contraction of the community to which they belong. Proverbs are at once the most accessible of rhetorical figures, which even a farmer’s wife can use, and the exclusive property of the Latin scholar. The application of common law similarly vacillates between being the king’s provenance and the people’s. This tension is addressed more overtly in Erasmus’s writings than in those of contemporary ­lawyers. But as Shelley Lockwood points out, Fortescue registers it too in the 60 C.  Nicholson, Uncommon Tongues: Eloquence and Eccentricity in the English Renaissance (Philadelphia: University of Pennsylvania Press, 2014), 85-6. 61 T. Chaloner, The Praise of Folie (London: Thomas Bertelet, 1549), fol. A4r. 62  Ibid., fol. A4. 63 D. Erasmus, Adages: II i 1 to II vi 100, in The Collected Works of Erasmus, Vol. XXXIII, trans. R.A.B. Mynors (Toronto: University of Toronto Press, 1991), 15. 64 In citing this anecdote, Eden focuses on the “changing attitudes and practices regarding ­property” (143-4). I am interested in the way these changes reveal the exclusivity that undergirded the proverb’s commonality all along.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

58  Custom, Common Law, and the Constitution sense that De Laudibus Legum Angliae is a reforming text, one that “highlight[s] the gap between ideal and actual.”65 It attempts to persuade the Prince that the people’s consent is necessary to political processes by acting as though it is already un­ assail­ able. In constructing Utopia and Utopia, More brings together the ­con­tem­por­ary legal and rhetorical discourses of commonality by grappling with these two conflicting aspects. In order to understand how he does so, however, it is first necessary to recognize the central, shaping role that commonplaces and common law play in More’s text.

II.  Utopia’s Commonplaces Because of More’s close relationship with Erasmus, he doubtless was familiar with the Prolegomena to the Adages. Erasmus did much of the work on the Adages while in England, where it was also well received. As Margaret Mann Phillips puts it, “whenever he was in England, he seemed to be working on a new edition of the Adages,” and she further speculates that Erasmus revised the 1513 edition at More’s home in Bucklersbury.66 It is in the context of Erasmus’s work and More’s own humanist views on language that we should interpret his ubiquitous use of this rhetorical figure in Utopia. The expansive nature of the proverb, which en­abled Erasmus to dissociate it from a system of private property, is precisely its appeal in a text concerned with common property. Since no sustained record of the proverbs in Utopia—and their connection to the Adages—has been made, it is worth dwelling here on their frequency and provenance. More opens Utopia with a proverb. Of Cuthbert Tunstal, whom he accompanied on the diplomatic mission to Flanders during which he was introduced to Hythloday, he writes, Of the latter’s praises I shall say nothing, not because I fear that the testimony of a friend should be given little credit but because his integrity and learning are too great for it to be possible, and too well-known for it to be necessary, for me to extol them – unless I should wish to give the impression, as the proverb goes, of displaying the sun with a lamp!  (47)

Calling attention to More’s use of a proverb with the printed marginal note Paroemia, Erasmus alerts readers from the outset to the presence of proverbs and 65  Lockwood, “Introduction,” in Fortescue, On the Laws and Governance of England, xxv. 66 Phillips, The “Adages” of Erasmus, 54, 103. Other critics have shown a process of cross-fertilization between Erasmus’s collection and More’s epigram translations. See E. Rummel, “The Reception of Erasmus’s Adages in Sixteenth-Century England,” Renaissance and Reformation 18.2 (1994), 19–30; C.C.  Doyle, “On Some Antecedents of More’s Epigrams 199, 210, and 214,” Moreana 36.137 (1999), 49–56.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  59 other types of commonplaces in Utopia and continues to do so throughout the text. More’s praise of Tunstal appears in the Adages as “Sole lumen inferre,” or “To hold a candle to the sun” (II.v.7). In his letter to Peter Giles, More imagines the critics his book will face: “These persons sit in taverns, and over their cups criticize the talents of authors. With much pontificating, just as they please, they ­condemn each author by his writings . . . They themselves remain under cover and, as the proverb goes, out of shot” (45). Not content to rely on the text’s own highlighting of its status, Erasmus adds the gloss “Proverbium.” When, in Book I, Hythloday claims that “He who has no grave is covered by the sky” and “From all places it is the same distance to heaven,” the margin notes “Apophthegma” (50). Although not identical, proverbs are often imagined to originate precisely in these types of “quick, witty sayings” (Erasmus, XXXI, 7).67 Besides the boast by one of Hythloday’s interlocutors at Cardinal Morton’s table that beggars no longer stop him for alms since “they no longer expect ­anything from me—no more, by heaven, than if I were a secular priest” lies the annotation “Prouerbium uulgo iactatum apud mendicos” [“an Adage Commonly Uttered Among Beggars”] (83).68 When the Cardinal’s otherwise dull jester offers a trenchant observation, More remarks that he exemplified the old proverb, “if a man throw the dice often he will sooner or later make a lucky throw,” which makes an appearance in the Adages (81; I.ii.13). Hythloday concludes his description of the Macarians, whose king must solemnly swear to never have more than a thousand pounds of gold in his coffers, by lamenting: “If I tried to obtrude these and like ideas on men strongly inclined to the opposite way of thinking, to what deaf ears should I tell the tale!” (97). Again, the margin chimes in: “Prouerbium.” This proverb also appears in Erasmus’s Adages as “ceram auribus obdis” [“your ears are stuffed with wax”] (IV.iii.7). Although Erasmus does not point it out, Hythloday also employs a proverb to describe the obstinacy with which royal counselors cling to their own ideas, “the crow and monkey like their own invention best” (57). Even more broadly, Book I’s “dialogue of counsel” (104) is structured as a volley of commonplaces between More and Hythloday.69 More employs a ­ ­commonplace to convince the well-traveled and well-learned Hythloday that he should become a member of a king’s council, since “From the monarch, as from a never-failing spring, flows a stream of all that is good or evil over the whole nation” (57). In turn, Hythloday appeals to humanist metaphors for the state of planting and disease: Kings are commonly “infected with wrong ideas” so that 67  Erasmus translated Plutarch’s Apophthegmata, but these do not appear in it. In one of those nearly impossible to maintain distinctions, Erasmus includes apothegms, or “quick witty sayings,” in the category of “those forms that seem to approach [the proverb] closely” (7). 68  The exact meaning of this proverb—whether it refers to priestly poverty or to clerical avarice— has never been determined (346n.82/9). 69  Crane, 105–6.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

60  Custom, Common Law, and the Constitution any proposal of “decreta sana” [healthy precepts] or attempts to “uproot from his soul the seeds of evil and corruption” will be met with hostility (87). More takes up Hythloday’s metaphors—“If you cannot pluck up wrongheaded opinions by the root, if you cannot cure according to your heart’s desire vices of long standing, yet you must not on that account desert the commonwealth”—and adds to it the ship of state—“You must not abandon the ship in a storm because you cannot control the winds.” But Hythloday pushes back with his own interpretation, fearing that he would “share the madness of others as I tried to cure their lunacy” (98–9). In Book II, however, the noting of proverbs starts to fall off, but a m ­ arginal gloss points out the proverbial nature of the Utopian senate’s policy never to decide on a matter the same day it is introduced. This recalls the proverb “to sleep on a decision” (More, 125), which appears in the Adages as “In nocte consilium” [“night is the mother of counsel”] (II.ii.43). As I will discuss, More also plays on the proverbs “golden fetters” (153, 155) and “home is everywhere” (147), both of which appear in Erasmus’s collection (Adages, II.iv.25; II.ii.93). Like all things in Utopia, these proverbs are shared property. In his Prolegomena, Erasmus quotes the passage from Quintilian we have already seen: “Popular sayings . . . seem to be, as it were, common property from the very fact that they have no certain author” (XXXI, 16). Eden explains: the proverb is “a ­literary form that by definition defies individual ownership. Passed down from gen­er­ation to generation and around from place to place, proverbs or adages encode over time and space a collective wisdom that belongs equally to all ­members of a community.”70 Read in this context, they become the ideal rhet­ oric­al figure for More’s imagining of the ideal commonwealth. And, as I will ­elucidate further, this commonwealth had its basis in common law. While the presence of proverbs in a sixteenth-century Latin text is by no means extraordinary, it has particular resonance in one that describes a society based on common property. Book II, which describes Utopia, has been read as a reimagining of the commons in response to Hythloday’s critique of enclosure. Bent on utilizing more and more land for sheep-grazing in order to increase wool production, “noblemen, gentlemen and even some abbots . . . leave no ground to be tilled; they enclose every bit of land for pasture; they pull down houses and destroy towns, leaving only the church to pen the sheep in” (67). Hythloday attributes vagrancy and theft in England to the disappearance of the commons, where ­tenants are “compelled to leave their homes” and “find no shelter to go to” (67). In its evocation of a discursive commons, which possesses political significance, as we have seen, the proverbial language of Utopia becomes another way in which the text re-envisions England’s disappearing commons. 70  Eden, 144-45. Eden traces the process by which Erasmus substitutes the patristic tradition of defending “Christians’ right to classical literary culture” as a hostile legal appropriation of property with a rhetoric of “shared property among friends” (25).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  61 More overtly discusses his investment in a discursive commons in his “Letter to Dorp,” which was written in the same year as Utopia, in defense of Erasmus’s Praise of Folly and his soon to be published Greek edition of the New Testament with a Latin translation and notes. In this letter More recognizes the political dimension of language, much as Erasmus does in the Adages. More here espouses the principle of common language in contradistinction to the scholastics, criticizing them for distorting Latin grammar in the supposed service of dialectical logic. He mocks the “monstrous absurdities” that are enabled by these distortions, such as the assertion that “The pope I have beaten” is a true statement while “I have beaten the pope” is a false one, or the expansion of the meaning of “sum” (from the verb “to be”) and “possum” (from the verb “to be able”) so far that the prop­os­ ition “A dead man is able to celebrate mass” can be held as “indisputably true.”71 The scholastic approach to language represents a model of ownership that More (and his circle) roundly reject. Referring to the examples of distorted usage he has cataloged, More asserts: Nec sunt artis illa uocabula, ut sint eis quasi in peculio, et ab eis, si quis uolet uti, sumenda mutuo, communis nimirum sermo est, nisi quod quaedam deterius reddunt, quam a cerdonibus eadem accepterunt. A uulgo sumpserunt, uulgaribus abuntuntur. Those words are not technical terms [artis . . . uocabula] on which these men can claim a peculium, as it were, so that anyone wishing to use them must go and ask them for a loan. Such expressions are actually common language [communis . . .  sermo], though these men do return some of them in a worse state than they were in when they were appropriated from ordinary craftsmen [cerdonibus]. They have borrowed their words from the public domain [vulgo]; they abuse public property [uulgaribus].72

More reverses the roles of scholastics and “ordinary craftsmen.” He begins by ­condemning scholastics for treating language as their own property that can only be loaned out to others, choosing a particular legal term that expresses his disdain for this approach. In Roman law, peculium refers to a sum of money or other goods that a slave held as a separate unit from his master, but that remained the

71 T. More, “Letter to Dorp,” in The Complete Works of St. Thomas More, Vol. 15, ed. D. Kinney, (New Haven: Yale University Press, 1986), 31–3. On the nature of these types of propositions, which are appellation and ampliation sophisms (re­spect­ive­ly), see D.  Kinney, “More’s Letter to Dorp: Re-Mapping the Trivium,” Renaissance Quarterly 34.2 (1981), 179–210. 72  More, “Letter to Dorp,” 34–5. Although “common people” is the standard translation of vulgus, I have retained Kinney’s translation because it captures a shade of meaning that is important to Utopia. I have retained the original Latin term peculium, however, rather than Kinney’s translation, “monopoly.”

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

62  Custom, Common Law, and the Constitution latter’s property.73 Thus More places the scholastics in the position of slaves; their possession of linguistic property, which they believe absolute, is limited and ­conditional. In More’s view, by contrast, words are held in common. As it turns out, scholastics are not lenders but borrowers—and not very responsible ones at that. Not only do they borrow common language from common people, they return it worse for the wear. They misuse common words and thereby injure the vulgus, the very same group that More’s anonymous friend feared would impinge upon his authority. Scholastics, as More describes them, are akin to those noblemen, gentlemen, and abbots whom Hythloday refers to in Utopia. By enclosing common land, they do “positive harm” to their country and strip the English equivalent of the vulgus of what is rightfully theirs (67). Although of course the vulgus in the “Letter to Dorp” is the rather elite group of those who know Latin, More takes pains to ­create a sense of a broad commons. The term “cerdo” is defined by sixteenthcentury dictionaries as “any man than vseth & gaineth by any vile handycraft;” Lewis and Short also offer the definition, based on Juvenal, of “a workman of the lowest class.”74 Although More does not discuss them in his letter, proverbs represent the rhet­ oric­ al instantiation of the humanist principle of common language that he espouses. Daniel Kinney has drawn a connection between the proverbial l­ anguage More uses in the “Letter to Dorp” and the principle of ratio (common sense) for which he advocated as a way to understand how language acquires meaning: “More is showing Dorp just how it ought to be done. The adages colorfully ­illustrate the workings of true common sense.”75 Proverbs also provide proof of the power of common usage in the form of a rhetorical figure. This is the alternative approach More offers to the scholastic monopoly on language, and custom is its guiding principle. Echoing Quintilian, he asserts: Grammatica recte loqui docet, nec ea tamen insuetas loquendi regulas cominiscitur, sed quae plurimum in loquendo uidet obseruari, eorum loquendi rudes, ne contra morem loquantur, admonet. Grammar teaches the right way to speak, and yet it invents no laws of speech in defiance of custom [morem]; instead, it simply sees which constructions appear the most often in speech and points these out to those who are unschooled in speech so that their speech will not flout common usage.76 73  The Digest of Justinian, Vol. I, eds. T.  Mommsen, P.  Kreuger, and A.  Watson (Philadelphia: University of Pennsylvania Press, 1985), 15.1–3. 74 T. Thomas, Dictionarvm Lingvae Latinae et Anglicanae (Canterbury, 1587), fol. K1r; C.T. Lewis and C. Short, “cerdo,” A Latin Dictionary (Oxford: Clarendon Press, rpt. 1969). 75  Kinney, “More’s Letter to Dorp,” 199–200. Ratio is usually translated as reason. By translating it as “common sense,” Kinney maintains the relationship between reason and common usage. 76  More, “Letter to Dorp,” 34–5.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  63 Grammatical rule is not imposed from above by grammarians, but like commonplaces, emerges from the custom of a group of speakers whom More, strategically, never identifies.77 Here, More quotes Quintilian, with one small but significant change. He replaces the term for custom in the original passage, consuetudo, with one that evokes his own name, mos or mores, a patronymic pun also central to Utopia.78 Customs, or mores, regulate the commonwealth of Utopia just as surely as they govern the commonwealth of commonplaces. The shared pun activates a connection between Utopia’s political commons and the humanist linguistic commons envisioned by both Erasmus and More, further cementing the political resonance of the proverb in Utopia. At the same time this pun evinces a connection between the political commons of Utopia and that of England itself.

III. More’s Mores: Utopia’s Customs Toward the end of Book I, Hythloday introduces an important distinction between Utopia and other nations. While the latter constantly accumulate more and more laws, often to no avail, Utopia has “few laws” (“paucis legibus”) and relies instead almost completely upon customs, or “mores” (103). Returning to this distinction in Book II, he explains: laws are superfluous for an “educated” people (194–5). With the term education, or training (institutio), Hythloday describes not an academic curriculum, which was compulsory only for those who make learning their life’s work, but rather the sum total of customs that govern Utopian lives (129). Strikingly, again and again, More refers to the practices, ­habits, and policies of the Utopian commonwealth as mores. Many aspects of Utopian life that would not immediately strike one as customs are so designated. The procedures surrounding travel within Utopia, such as obtaining government approval or putting in a day’s labor before accepting a host’s food, are praised by Hythloday because “Quem populi morem necesse est omnium rerum copiam sequi” (This universal behavior [or, custom] must of necessity lead to an abundance of all commodities) (146–7). The yearly alternation of citizens from the city to country so that everyone learns to farm is referred to as a “mos” (114–15). The senate has a particular “custom of debating nothing on the same day on which it is first proposed but of putting it off till the next meeting” (Quin id quoque moris habet senatus) (124–5). Likewise, their method of negotiating for enemy lives, “which is 77  For a more extensive exploration of the humanist grammatical concept of custom, see L. Nauta, In Defense of Common Sense: Lorenzo Valla’s Humanist Critique of Scholastic Philosophy (Cambridge, MA: Harvard University Press, 2009), 221–2, 271–80; R.  Waswo, Language and Meaning in the Renaissance (Princeton: Princeton University Press, 1987), 98. 78 Quintilian writes: “Non enim, cum primum fingerentur homines, Analogia demissa caelo ­formam loquendi dedit, sed inventa est postquam loquebantur . . . Itaque non ratione nititur, sed exemplo, nec lex est loquendi sed observatio, ut ipsam analogiam nulla res alia fecerit quam ­consuetudo” (168; emphasis mine).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

64  Custom, Common Law, and the Constitution elsewhere condemned as the cruel deed of a degenerate nature” (animi degeneris), is called a custom (204–5). And so too is their practice of viewing one’s potential spouse naked before deciding on marriage, which Hythloday imagines Europeans would mock as “foolish and extremely ridiculous” (188–9).79 At times, More does use another term for these customs, instituta.80 He employs consuetudo almost exclusively for the European customs he denounces, as if to distinguish the latter linguistically.81 By choosing most often the Latin term that evokes his own name, More signals the profound importance of this governing category to Utopia. Sixteenth-century Latin dictionaries define mos and its plural mores (also moris) as Thomas Elyot does in the first bilingual, ­classical Latin ­dictionary (1538): “a maner, a condicion, also custome.”82 This last term is the most appropriate translation for the mores of Utopia, where it refers most spe­cif­ic­ al­ly to a set of practices. Moreover, according to the Ciceronian examples of usage offered in these dictionaries, mores refers not just to individual habits, but also to national ones.83 While it may sometimes appear that a distinction between European custom and Utopian nature is being drawn, a closer look reveals that two customs are being contrasted, as in the tale of the Anemolian ambassadors who arrive in Utopia expecting to “dazzle” the simply dressed Utopians with their gems and finery, but finally are shamed by their own ostentation (111). It would be ­tempting to label the Utopians more natural than the Anemolians. Based on this episode, Lawrence Manley argues that “the natural life of Utopia” appears strange to Europeans only because their view has been distorted by their customs.84 But the sentence that frames the episode emphasizes a difference in national customs: “What opposite ideas and feelings are created by customs so different from those of other people came home to me never more clearly than in the case of the Anemolian ambassadors” (111). Custom’s centrality to the Utopian commonwealth thus evokes the peculiarity of the English legal system. In Bracton’s terms, Utopia’s customs, like England’s, possess the binding “force of law,” since each citizen is required to adhere to them and faces judicial punishment for any transgression.85 As has long been recognized, More clearly flags Utopia’s relevance to England. Hythloday brings up Utopia in the context of England’s particular problems of theft and vagabondage, 79  For a full list, see M. Taneyhill and K. Stearns, “Major Latin Terms in Thomas More’s Utopia, CW 4: A Lemmatized Concordance,” Thomas More Studies, 11.1 (Spring 2016), 230–1. 80  For a full list of occurrences, ibid., 179–80. 81  For a full list of occurrences, see ibid., 74. 82 T. Elyot, The Dictionary of Sir Thomas Eliot (London: Thomas Berthelet, 1538), fol. O1v. See also T.  Cooper, Thesaurus Lingvae Romanae & Britannicae (London: Henry Denham, 1565), fol.4H5r; Thomas, fol. 2O4v. Galfridus is the first to record mos, moris as a synonym for consuetude. See Galfridus, Ortus Vocabulorum (Westminster: Wynkyn de Worde, 1500), fol.2B1r. 83  Cooper, for example, translates the Ciceronian phrase “In patris est moribus, multorum causas gratuito defendere” as “It is the maner and custome of our countrey” (Cooper, fol. 4H5v). 84  Manley, 109. 85  Bracton, 19.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  65 which he attributes to “enclosures made for the benefit of the wool trade” (67). Like England, Utopia is an island; like London, its capital city, Amaurotum, is traversed by a river with identical tides and bridges to the Thames (108). These similarities are usually taken to underscore the vast difference between England and Utopia, to present Utopia as an alternative to England. But Utopia and England’s topographical similarities also gesture toward a substantial constitutional one. They are both commonwealths governed by custom, and in England that custom is common law. The connection reverberates all the more in a text by a lawyer—one of the greatest practitioners of common law whose name happens to be synonymous with custom.86 Utopian custom might at first appear to represent a departure from this ­com­bin­ation of precedent and change since, as James Simpson points out, Utopus “devised the entire system.”87 Utopus, however, does leave an inheritance of a sort. Coming up against the limit of his own mortality, he “left [reliquit] to posterity, however, to add the adornment and other improvements which he saw one lifetime would hardly suffice” (121). More, ultimately, leaves room for constitutional change, but change by whom and by what mechanism? Was this work that could not be accomplished in one lifetime to be continued in the judicious senate house, where no decision is made without “sleeping on it”? Or, was it to be by a process of organic development, like English legal custom, codified only retrospectively? More characteristically maintains rather than resolves these ­ am­bi­gu­ities. Ultimately, the work of legislating change in More’s Utopia remains problematic, almost as difficult as inventing or even revising a commonplace. This English context offers insight into one of the central ironies of Utopia. Modern readers have noted over and again that More’s ideal commonwealth turns out to be a repressive, even totalitarian state. C.S. Lewis chillingly noted: “There is nothing in the book on which the later More, the heretic-hunter, need have turned his back . . . There is nothing liberal in Utopia.”88 Hexter compares Utopia to Maoist China, while Simpson accuses More of being an apologist for Henry VIII’s absolutist state.89 Stephen Greenblatt emends Lewis’s contention— “freedoms are heralded, only to shrink in the course of the description”—but

86  Richard Marius briefly flags the possibility of a connection between the constitutions of the two commonwealths when he argues that Utopia may have “found especially fertile ground in that world where Englishmen did feel a sense of common birth and common belonging” because of common law’s tradition of “placing perhaps even more power with the people than with the king.” R. Marius, “Community, Consent, and Coercion,” in Reformation, Humanism, and “Revolution,” eds. G. Schochet, P.E. Tatspaugh, and C. Brobeck (Washington, DC: Folger Shakespeare Library, 1990), 33. More views this tradition with skepticism. 87 J. Simpson, The Oxford English Literary History: Reform and Cultural Revolution, Vol. II (Oxford: Oxford University Press, 2002), 192. 88 C.S. Lewis, English Literature in the Sixteenth Century (Oxford: Clarendon Press, 1954), 168. 89 R. Halpern, The Poetics of Primitive Accumulation: English Renaissance Culture and the Genealogy of Capital (Ithaca: Cornell University Press, 1991), 141; J. Simpson, 192.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

66  Custom, Common Law, and the Constitution arrives at a similar conclusion.90 Adams and Logan observe in their translation of Utopia that the small number of laws is “supplemented by an oppressive number of codes, customs and conventions.”91 Yet the prevalence of customs and the ­virtual absence of laws in Utopia may have prompted these critics and others to expect a less rigid and rule-bound society than Europe. Although custom is now considered a more fluid and flexible category than the law, it was then understood to be much closer to it. We usually think of custom as that which is observed and law as that which must be obeyed. But in England, as in Utopia, customs are to be observed and obeyed. Institutum, the second most frequently occurring term for Utopian custom, encapsulates this convergence, as another one of its meanings is “an ordinaunce or decree.”92 In one sense, then, More pays homage to his native land by modeling his ideal commonwealth upon it. But he also diverges from the standard account of c­ ustom in two provocative ways, both of which suggest that this constitutional resemblance is a rather more complicated gesture. Hythloday’s claim for the absence of laws in Utopia relies upon an important relationship among law, c­ ustom, and private property, as he elucidates: Quam ob rem quum apud animum meum reputo, prudentissima atque sanctissima instituta Vtopiensium, apud quos tam paucis legibus, tam commode res administrantur . . . , tum ubi his eorum moribus ex aduerso comparo, tot nationes alias, semper ordinantes, nec ullam satis ordinatam unquam, earum omnium in quibus quod quisque nactus fuerit, suum uocat priuatum quorum tam multae indies conditae leges non sufficiunt, uel ut consequatur quisquam, uel ut tueatur, uel ut satis internoscat ab alieno, illud quod suum inuicem quisque priuatum nominat . . . . . . . I ponder on the extremely wise and holy institutions [instituta] of the Utopians, among whom, with very few laws [paucis legibus], affairs are ordered so aptly . . . I contrast with their policies [eorum moribus] the many nations elsewhere ever making ordinances and yet never one of them achieving good order – nations where whatever a man has acquired he calls his own private property, but where all these laws daily framed are not enough for a man to secure or to defend or even to distinguish from someone else’s the goods which each in turn calls his own . . .  (103–5)

The function of the law is to protect private property and yet no number of or­ ­ din­ ances can distinguish absolutely between the meum and the tuum. The 90 S.  Greenblatt, Renaissance Self-Fashioning: From More to Shakespeare (Chicago: University of Chicago Press, 1980), 41. 91 More, Utopia: Latin Text and English Translation, 101, n.85, emphasis mine. 92  Thomas, fol. 2G7v. See also Elyot, fol. L2 and Cooper, fol. 3T2. The idiomatic verbal phrase morem gerere, “to obey,” also highlights the ambiguity between custom and law.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  67 unceasing proliferation of regulations suggests that no legal system—common law or otherwise—is sufficient. By contrast, in a land with no private property, laws are almost superfluous, and customs take their place. Thus, Utopian custom is meant to organize a society with no private property, whereas English custom (in this sense, akin to European law) regulates the devolution of land and protects English ­subjects’ private property from the king. Indeed, some of the most prominent aspects of common law, such as primogeniture, were considered customs. While common law is in many respects common, in one important sense, it is quite the opposite. Unlike common law, Utopian custom turns out to be neither native nor ­consensual. Rather, it offers a means of dominating other nations. According to Hythloday’s account of Utopian colonization—a strategy that prevents overpopulation in the Utopians’ own households and cities—Utopia readily exports its customs to other lands without regard for what may have previously existed there: coloniam suis ipsorum legibus propagant, ascitis una terrae indigenis si conuiuere secum uelint. Cum uolentibus coniuncti in idem uitae institutum: ­eosdemque mores, facile coalescunt, idque utriusque populi bono. efficiunt enim suis institutis, ut ea terra, utrisque abunda sit . . . Renuentes ipsorum ­legibus uiuere, propellunt his finibus quos sibi ipsi describunt. Aduersus repugnantes, bello confligunt. [The Utopians] found a colony under their own laws [suis ipsorum legibus]. They join with themselves the natives if they are willing to dwell with them. When such a union [uolentibus coniuncti] takes place, the two parties gradually and easily merge and together absorb the same way of life and customs [idem uitae institutum eosdemque moribus], much to the great advantage of both people . . .  The inhabitants who refuse to live according to their laws [ipsorum legibus], they drive from the territory . . . If they resist, they wage war against them.  (136-37)

In this passage Utopians and natives conjoin life and ways in the same sense, as Carole Pateman has incisively observed, that under coverture “a husband and wife became ‘one person,’ the person of the husband”; the Utopians and the ­col­on­ized become one people, the people of Utopia.93 In an ideal case the union takes place voluntarily, implying that even if the customs are not native, some form of assent has been obtained. If the colonized refuse to take on Utopian ­customs, however, they are either driven out or defeated in war.94 More vacillates 93 C. Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988), 119. 94  Bartolomé de las Casas’ description of the Spanish Requerimiento is attuned to the vexed status of colonial consent in similar ways. See B. de las Casas, History of the Indies, ed. and trans. A. Collard (New York: Harper & Row, 1971). In Las Casas’s example, the limit of consent is language. Victor Baptiste argues that More was familiar with Las Casas’s writings and draws multiple connections between Utopia and las Casas’s A Brief Account of the Destruction of the Indies. See  V.  Baptiste, Bartolomé de las Casas and Thomas More’s Utopia: Connections and Similarities: A Translation and a Study (Culver City: Labyrinthos, 1991).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

68  Custom, Common Law, and the Constitution suggestively between describing the Utopian system as law and as custom, as if to register that, depending on the process (conquest or consent), their system belongs to a different category. Even within the confines of Utopia, More disrupts the notion of a common source of authority that is fundamental to common law. Rather than emerging from the native community in a gradual, organic, and consensual process, the customs of Utopia were abruptly imposed by its founder, Utopus. At the start of Book II, Hythloday intertwines his account of how the island of Utopia was artificially constructed with the reformation of the customs of Abraxa (as the land was formerly known): Caeterum uti fertur, utique ipsa loci facies prae se fert, ea tellus olim non ambiebatur mari. Sed Vtopus cuius utpote uictoris nomen refert insula, nam ante id temporis Abraxa dicebatur, quique rudem atque agrestem turbam ad id quo nunc caeteros prope mortales antecellit cultus, humanitatisque perduxit, primo protinus appulsu uictoria potitus, passuum milia quindecim, qua parte tellus continenti adhaesit, exscindendum curauit, ac mare circum terram duxit. As the report goes and as the appearance of the ground shows, the island once was not surrounded by sea. But Utopus, who as a conqueror gave the island its name (up to then it had been called Abraxa) and who brought [perduxit] the rude and rustic people to such a perfection of culture and humanity as makes them now superior to almost all other mortals, gained a victory at his very first landing. He then ordered the excavation [exscindendum curauit] of fifteen miles on the side where the land was connected with the continent and caused the sea to flow [duxit] around the land.  (112–13)

Hythloday at once describes both a radical alteration in the land’s geography and in the customs of a conquered people. Just as Utopus caused the sea to flow, duxit, he also brought perduxit, the people, to perfection. More’s choice of verb, ducere, to lead, suggests something other than consent. The violence visited on the island’s geography—the process of excavation is called a tearing away or destruction (exscindere)—also wrought havoc on the people’s customs. Utopia originates in “Abraxa’s ruin, in its territorial ‘cutting’ ”95—and so do its customs. In Utopia’s founding and its own colonizing missions, the conqueror has the right to impose his own system of laws on the conquered.96 But to then insist that they are customs creates a contradiction in terms. The story of Utopia’s origins is a

95 A. Boesky, Founding Fictions: Utopias in Early Modern England (Athens and London: University of Georgia Press, 1996), 20. 96  On conquest theory, which dictates that a conqueror can impose law but when a people has consented to government, the new ruler must accept their customs, see Greenberg, The Radical Face of the Ancient Constitution, 13–15.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  69 far cry from the narrative of the origin of the English kingdom, which emphasizes collaboration and consent. Even though English customs had no origins, their kingdom did. According to Fortescue, who echoes Geoffrey of Monmouth, Brutus created a “fellowship” upon his arrival in Britain, and “they and he upon this incorporation, institution, and uniting of themselves into a realm, ordained the same realm to be ruled and governed by such laws as they would all assent to.”97 Robert Adams and George Logan compare Utopus to Solon, the great lawgiver.98 But he could also be compared to those kings of other lands whom Fortescue so disdains because they govern only “royally,” and not “politically,” thus willfully imposing their laws upon the people. While I have been discussing the connection between conquest and custom in Utopia in terms of its difference from England, it would be more accurate to say that these apparent differences reveal the unsettling limitations of a legal and ­constitutional system that relies upon custom, for custom can be wielded just as easily to coerce as to govern and unite the commons. More thus recognizes its potential role in an absolutist agenda, not in order to promote it, as James Simpson has argued, but to temper the increasing idealization of a common law that is based on custom.99 Common law, More implies, can only expand to encompass a larger community through force. The tension between consent and coercion in Utopia is intimately bound up with the double nature of its constitutional dispensation, as a form of native law and as a mechanism for territorial expansion. Utopian custom thus brings into stark relief the dual nature of England’s own constitutional system—which common lawyers were not always willing to acknowledge—as a means of representing the people’s will and of enforcing the king’s singular power over his entire land. It also anticipates a dilemma that ­perhaps was not yet on common lawyers’ horizons, one that England would ­confront when it exported its own customs to places like Ireland and when English legal scholars could no longer draw a neat contrast, as Fortescue did, between “the law of England,” which governed only a kingdom, and the civil law of the Holy Empire, which governed “the whole world.”100 More’s text poses questions that, as we will see in Chapter 3, would become increasingly urgent in the coming decades: if common law protected England against the foreign encroachment by the Roman Church, what would happen when common law itself became a means of foreign encroachment? How far could it expand without being itself fundamentally altered?

97  Fortescue, 86. 98 More, Utopia: Latin Text and English Translation, 111n.3. 99  Simpson, 191–5, 229–38. 100  Fortescue, 24.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

70  Custom, Common Law, and the Constitution

IV.  Friends Hold All Things in Common? Utopia’s English Readers The dilemma about the possibilities and ramifications of expansion in the Utopian realm may sound familiar: it is exactly the problem that both Erasmus and his detractors confronted when they sought to define a rhetorical community through the figure of the proverb. Ultimately, the proverb proves a compelling figure for Utopia because it refracts the tensions that emerge in the Utopian ­commonwealth, with Utopia’s colonial strategies representing the darker side of Erasmus’s transnational commons. But it is the peculiar way in which More uses proverbs in Utopia that reveals perhaps most powerfully the imbrication of the two seemingly unrelated discourses of common law and the commonplace. Given the anxieties Erasmus and others expressed over the boundaries of the humanist rhetorical community, it is ironic but perhaps fitting that a group of English readers who lie decidedly outside of the Erasmian rhetorical community call attention to More’s unusual manipulation of commonplaces in Utopia. Educated to be attuned to the presence of commonplaces in a text, these readers of Ralphe Robynson’s 1551 English translation applied the practice of marking them, usually reserved for classical texts, to Book I of Utopia. They inscribed manicules, flowers, and other indicators of special notice throughout the margins and even in the body of the text itself (see Figures 2.1 and 2.2).101 In fact, these readers often alight on the same commonplaces and proverbs, offering a glimpse into the community that proverbs create.102 Strikingly, though, the annotations cease in Book II, in which Utopia is described. This gap reflects not readerly fatigue but rather the scarcity of commonplaces: Utopia itself stands outside of

101  A manicule is a drawing of a hand with an outstretched finger pointing to the relevant text. See Figure 2.1 for an example. Erasmus was an early advocate of the practice of commonplacing. In De Ratione Studii, he recommends indicating adages, maxims, and any striking diction or style with an “appropriate mark.” See De Ratione Studii, 670. 102   My examination of fifteen copies of the 1551, 1556, and 1597 editions of Robinson’s translation, housed in the British Library (BL) and the Folger Shakespeare Library (Folger), reveals multiple overlaps in marginal annotations. Examples include: “from the prynce as from a perpetual wellspring commythe among the people the flood of all that is good or euell” (B8v; BL C.38.a.11, BL 231.a39); Hythloday’s observation regarding Cardinal Morton, “so by many and great daungers he lerned the experience of the world, which so being learned can not easily be forgotten” (fol. 10v; Folger STC 18094.1, Folger STC 18095.2); Fabrice’s saying that “he had rather be a ruler of ryche men than be rich himself ” (fol. ff.iii.v; Folger STC 18094.2; Folger STC 18096.1); Plato’s “goodly similitude” about why wise men refrain from government: “For when they see the people swarm into the streetes & daily wet to the skinne with rayne . . . take to their houses, knowying wel, that if they should go out of them, they should nothing preuayle, nor wynne oughte by, but with them be wette also in the raine” (fols. f8v–G1r; BL 231.a.39, Folger STC 18094.2); Hythloday’s observation that it is “a foolyshe phisition that cannot cure his patients disease onless he cast him in another” (fol. ff3v; Folger STC 18094.2, STC 18096.2); and Hythloday’s assessment that royal councilors all agree “with the rich Crassus, that no aboundance of wealthe can bee sufficient for a Prince, which must keep and mayntayne an armie” (fol. G1–G1v; Folger STC 18096.2). There are many more annotations besides; some of the margins of Book I in these copies are covered almost entirely with markings.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  71

Figure 2.1  Utopia (1556), trans. Ralphe Robinson. ©British Library Board, 231. a39, C1v.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

72  Custom, Common Law, and the Constitution

Figure 2.2  “The Raven & the ape think theire own yongones best.” Handwritten note in Utopia (1551), trans. Ralphe Robinson. ©British Library Board, C.38.a.11, C1r.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  73 the realm of commonplaces.103 In Crane’s view, More “literally gives . . . commonplaces a ‘place’ called ‘no place.’ ”104 Many of the principles of Utopian society can be traced to Plato, Vergil, and the other classical sources that generate commonplaces. But it is as though once a society based on these commonplaces has been imagined, More can dispense with the actual use of commonplaces. Thus, it might be more accurate to say that Utopia is no place for commonplaces. Their startling absence in Book II functions as an implicit recognition of their vexed status on a formal level. When More avoids using proverbs to describe Utopia, he also calls attention to the apparent unsuitability of their content to his polity. Commonplaces and proverbs often issue from a system of private property that Utopia does not share and so they cannot be expected to apply there. Some proverbs refer explicitly to the stewardship of property, but even those that do not often have their basis in property relations. The vast category of proverbs that warn against the misprizing of one’s self and of others, for example, can only exist where private property does, a lesson that More’s Utopia repeatedly teaches us. Thus, “Sileni of Alcibiades” (Adages, III.iii.1)—one of the central proverbs of this type, and of Erasmus’s collection—relies upon a distinction between inner and outer worth engendered by property. Erasmus explains that Sileni were hideous, wooden figures that contained a deity inside. When Alcibiades compared Socrates to a Silenus, he referred to the unappealing looks that concealed Socrates’s ­wisdom.105 While Socrates’s relative unattractiveness seems to have little to do with private property, the latter turns out to constitute the basis upon which ­misjudgments are made. Erasmus describes his appearance in distinctly class terms: he had a “peasant” face (XXXIV, 262). Similarly, Christ, the most crucial Silenus fi ­ gure for Erasmus, was disdained because of his family’s “modest means and lowly station” (XXXIV, 264). Both the figure of Silenus and his inverse, the “inside-out Silenus,” who is considered wise because of “honorific titles, learned bonnets, resplendent belts, and bejewelled rings” (XXXIV, 265), would be impossibilities in the absence of private property. While this cannot be said of all ­proverbs, the most influential of Erasmus’s proverbs often gain their punch from their ­situatedness in a system of private property.

103  There are a couple of exceptions. J. Donnell, annotator of the 1556 edition in the British Library, writes one manicule in the margin of Book II, notably by a sentence that does not describe the Utopian commonwealth: “Therefore when I consider and weigh in my mind all these commen wealthes, which now a dayes any where do flourish, so god helpe me, I can perceaue nothing but a certain conspiracy of rich men procuring their owne commodities under the name and title of the common wealth” (fol. R8v, BL 231.a.39). A copy of the 1556 edition with two owners, Robert Hare in 1572 and J. Church in 1764, contains handwritten manicules and marks in Book II that seem to be in Church’s later hand (Folger STC 18095). 104  Crane, 104. 105 D. Erasmus, Adages: II vii 1 to III ii 100, in The Collected Works of Erasmus, Vol. XXXIV, ed. R.A.B. Mynors (Toronto: University of Toronto Press, 1992), 262.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

74  Custom, Common Law, and the Constitution Perhaps this is why the proverbs that occasionally appear (or are alluded to) in Book II of Utopia take noticeably perverse forms. For example, More renders completely ironic the adage “Quaevis terra patria,” or “home is everywhere,” which he invokes to explain why Utopians “carry nothing” on their travels (147, Adages, II.ii.93). This paradoxical turn of phrase erases the difference between “home” and “everywhere,” but presupposes the existence of a home in order to do so. More renders the sentiment nonsensical by using it in reference to an island called No-Place where every home follows the same blueprint.106 By changing the term for “home” from “patria” to “domus,” More acknowledges the proverb’s impossibility in Utopia, since patria belongs to a network of words having to do with inheritance, including patrimonium, or patrimony, and patrias, or hereditary. The way in which More takes advantage of the iterability of adages can be understood as an homage to his friend Erasmus. Erasmus offers two re­com­ menda­tions for varying proverbs: “there is no reason why you should not occasionally fit the same wording with different meanings” and “sometimes a saying can be turned ironically to mean the opposite” (XXXI, 20). This description encapsulates More’s style in Utopia, whose multiple ironies have vexed gen­er­ ations of scholars and whose “words”—to echo Diomedes’s definition of a ­proverb—always seem to “say one thing and mean another” (XXXI, 3). But More’s manipulation of Erasmus’s proverbs, twisted sometimes even beyond recognition, can also be understood as an acknowledgment that passed down from generation to generation, proverbs are wordly bequests that have little value in a place like Utopia that eschews inheritance. This dynamic is exemplified by the inaugural adage of Erasmus’s collection, “Between friends all is common.” Critics have argued that this adage, to which Erasmus gives pride of place, supplied More with the idea for Utopia.107 In his commentary Erasmus applies the adage to the state. Plato appealed to it in order to demonstrate that the “happiest condition of a society consists in the community of all possessions,” and, indeed, this is Hythloday’s claim about Utopia (XXXI, 29). But, as David Wootton has observed, there is a certain mismatch between this proverb and Utopia. Where friendship is exclusive, Utopia is inclusive.108 Like the concept of home, friendship loses all meaning in a place where everyone holds everything in common. Wootton attributes this incongruity to the evolution of the text from an homage to friendship to an impersonal, and therefore modern, political tract.109 But More’s text differs from a political tract in

106  Richard Halpern alludes to this irony when he remarks on the futility of Utopian travel (143–4). 107  D. Wootton, “Friendship Portrayed: A New Account of Utopia.” History Workshop Journal 45.1 (1998), 34. Olin also argues that Utopia is a “dramatic commentary” on Erasmus’s explication of this adage and on this basis interprets Utopia as an attempt to present “an ultimate and moral religious ideal” (60, 64). J.C. Olin, Erasmus, Utopia, and the Jesuits: Essays on the Outreach of Humanism (New York: Fordham University Press, 1994). 108  Wootton, 39. 109  Ibid., 30.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 05/08/20, SPi

The Commonwealth of Custom in Utopia  75 that its use of proverbs, including their pointed absence, undermines rather than underscores the central tenet of his text: the idea of common property. Like the proverbs that are overtly referenced in Utopia, this proverbial model for Utopia relies upon a system of private property for its meaning. Commonplaces, finally, are inextricable from the very same system that common law regulates. And perhaps this apparent mismatch is precisely the point. “Friends hold all things in common” epitomizes Utopia—and its commentary upon the Englishpolitical and classical-discursive commons—because of the opposite force that its two halves, subject and predicate, exert: the former, “friends,” in the direction of exclusivity and the latter, “hold all things in common,” in the direction of inclusivity. According to Marcus Cicero, an important source for the early modern understanding of friendship, true friendship is “so narrowed . . . that the bonds of affection always unite two persons only.”110 A certain level of parity was required to enter into this bond. If “the distance . . . in character” are too great, Cicero maintains, the friendship cannot hold.111 Thus, to befriend a bad man would be inadvisable; but to befriend a slave would be absurd.112 Aristotle offered early modern thinkers a more promising model for treating friendship as the basis for the polity since his notion of friendship encompasses inherently unequal relationships, but even he ultimately acknowledges that it is a limited one.113 As Laurie Shannon has shown, these same tensions beset early modern writers who understood friendship as a model for the state.114 Rather than resolve or explain away this contradiction between proverb and text, however, we might consider it as symptomatic of the tensions within both the commons and the commonplaces of Utopia, always wavering between the ideal of the ever-expanding “unanimous vote,” as Erasmus put it, or “voluntary union,” as More did, and the reality of a community as firmly circumscribed as the island of Utopia itself. “Friends hold all things in common,” like the commonplaces—and the commonwealth—of Utopia, which at once offers a tantalizing vision of the commons and gestures at its limits.

110 M.T. Cicero, On Old Age, On Friendship, On Divination (Cambridge, MA: Harvard University Press, 2001), 129. 111  Ibid., 179. 112  Ibid., 183. 113  See Aristotle, Nicomachean Ethics, trans. D.  Ross, rev. J.K.  Ackrill and J.O.  Urmson (Oxford: Oxford University Press, 1986), 211–14 for Aristotle’s elucidation of the importance of friendship, which he defines more broadly than Cicero to include parental and marital relationships, in different types of states. In the Politics, Aristotle contends that friendship is “the greatest good of states and the preservative of them against revolutions,” but he also references the problem of inequality when he recommends that a citizenry should be composed of the middle class, that is, of “equals and similars.” See Aristotle, Politics, trans. B. Jowett (New York: Modern Library, 1943), 85, 191. 114  Friendship was a way for these writers to insist on self-governance, but it first required a certain level of social status. Shannon also demonstrates that, like the classical, this early modern discourse never exceeded the pair in order to allow subjects to understand themselves in relation to each other. L. Shannon, Sovereign Amity: Figures of Friendship in Shakespearean Contexts (Chicago: University of Chicago Press, 2002), 18–20, 38–40.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

3

Inventing Custom Meter, Etymology, and Conquest in the Spenser–Harvey Letters and Spenser’s A View of the Present State of Ireland

The tension between Thomas More’s vision of a commons and his recognition of its limits would be taken up by writers throughout the sixteenth century, even as custom continued to influence humanist literary production, this time spe­cif­ic­ al­ly written in English. At stake in these chapters is whether the English language itself could be considered part of the discursive commons that More had im­agined in his Utopia. If More laid the groundwork for England to become part of the humanist tradition via common law, by writing in Latin, he left the question of whether the English language could participate in that tradition unanswered. Edmund Spenser and his Cambridge mentor Gabriel Harvey turn to common law to make the case that the strange English vernacular could indeed imitate classical literature. For More, the rhetorical figure of the commonplace was ­central to his consideration of common law in his Latin text, and vice versa; for Spenser and Harvey, custom enables the project of quantitative verse, or the ­writing of English vernacular poetry in classical meter. In this chapter, More’s understanding of the intertwined nature of cultural and geographical expansion, and especially his prescient representation of the chal­ lenge of exporting custom in Utopia, emerges as a problem for Spenser as both a poet and a colonial administrator, as he looked back on two histories—England’s history as a conquered nation and its attempts to conquer Ireland—in order to imagine two futures that might seem distinct from one another, the future of English poetics and of English conquest. This chapter, then, shows how English writers trained their gaze closely on what was perhaps the most pressing issue that emerged from understanding common law as custom: the identification of the native in contrast to the foreign, especially as imposed by conquest. In 1579, with the publication of The Shepheardes Calender, Spenser’s poetic career was beginning to take off. During this same year, he corresponded with Harvey about his plans to write The Faerie Queene; which poets and rhetoricians were being (or should be) read at Cambridge; and the earthquake that had shaken England the prior summer, among other things. But their correspondence is perhaps most well-known for its reflections on the controversial project to ­ Custom, Common Law, and the Constitution of English Renaissance Literature. Stephanie Elsky, Oxford University Press (2020). © Stephanie Elsky. DOI: 10.1093/oso/9780198861430.001.0001

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  77 “reform” English verse by using classical meter, or quantitative verse, a project that they both supported. The letters themselves were likewise considered a ­contribution to the project of English eloquence. The following year Henry Bynneman published them as Three Proper, and Wittie Familiar Letters, touting the letters as paragons of English style. “But shewe me,” Bynneman challenged his readers, “two Englyshe Letters in Printe, in all pointes equall to the other twoo, both for the matter it selfe, and also for the manner of handling, and saye, wee neuer sawe good Englishe Letter in our liues.”1 These years were a turning point in Spenser’s career in another way. In the summer of 1580, he left London, and the Earl of Leicester’s service, and went to Ireland to serve as secretary to the newly appointed Lord Deputy, Arthur, Lord Grey de Wilton. Spenser would go on to hold various positions as a colonial administrator, including commissioner for musters in Kildare, deputy clerk of the council of Munster, and Sheriff of Cork. He also amassed a great deal of property in Ireland, including over 3000 acres connected to the ruined Kilcolman castle, and likely accompanied the officials he served on military expeditions. Sixteen years after settling in Ireland, Spenser wrote A View of the Present State of Ireland, a colonialist manifesto about “our Irish Affaires.”2 In A View, a figure named Irenius—a stand in of sorts for Spenser—imparts the knowledge he has accumu­ lated about Ireland to an outsider named Eudoxus. Irenius covers such topics as the topography of Ireland; the history of the Irish people, including their customs and religious practices; and their law, Brehon law, which Irenius describes as “repugning quite both to Gods law, and mans.”3 He then goes on to suggest ways for the English to subdue the Irish based on this knowledge. A View is most famous for its brutal recommendation to starve the Irish into submission. Separated by time, space, and subject matter, what do the two texts that are this chapter’s focus have to do with each other? Not much—at least according to most critics. Indeed, while critics have illuminated the important connections between The Faerie Queene and A View, there has been no work to date on the relationship between the Letters and A View.4 Scholars have failed to recognize that the Letters,

1  G. Harvey and E. Spenser, Three Proper, and Wittie, Familiar Letters (London: Henry Bynneman, 1580), A2r . 2  J. Ware, ed. The Historie of Ireland, 2 vols. (Dublin: Society of Stationers, 1633), ¶2v. Although A View was entered in the Stationer’s Register on April 14, 1598, it was not published until it appeared in Ware’s collection of texts on Ireland. 3 E.  Spenser. A View of the Present State of Ireland, eds., A.  Hadfield and W.  Maley (Oxford: Blackwell Publishers, 1997), 14. 4  For examples of intertwined readings of A View and The Faerie Queene, see B. Cormack, A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law (Chicago: University of Chicago Press, 2007), 133–76; A.  Fogarty, “The Colonization of Language: Narrative Strategy in A View of the Present State of Ireland and The Faerie Queene, Book VI,” in Spenser and Ireland: An Interdisciplinary Perspective, ed. P. Coughlan (Cork: Cork University Press, 1989), 75–108; A. Hadfield, Spenser’s Irish Experience: Wilde Fruit and Savage Soyl (Oxford: Clarendon Press, 1997), passim; W. Maley, Salvaging Spenser: Colonialism, Culture, and Identity (New York: St. Martin’s Press, 1997),

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

78  Custom, Common Law, and the Constitution which reflect on poetry in England, and A View, which reflects on politics in Ireland, have one fundamental thing in common: both are concerned with the implementation of foreign rule, the Letters with the imposition of Latin meter onto English verse, A View with England’s reconquest of Ireland. Further, they both take up the political and linguistic discontinuities and ruptures raised by the specter of actual and metaphorical conquest. As we shall see, for a political tract, A View devotes a remarkable amount of space to linguistic change, and, for a poetic debate, the Letters are strangely preoccupied with histories of conquest. This chapter will argue for yet another unrecognized similarity between the two texts. In both, custom is called upon to mediate the problem of the foreign, and ultimately allows for the ruptures it brings to be reimagined as continuity. In the case of the Letters, the foreign is the classical, while, in A View, the English themselves are foreigners. This chapter, then, focuses extensively on England’s history as a conquered nation and how this history, in turn, influenced notions of poetic production and change. I trace a circuit in which legal discussions of England’s past conquests inform Spenser and Harvey’s understanding of change in English poetry, which, in turn, shapes Spenser’s thinking about how to carry out legal and political transformation in Ireland. If, for More, the problem posed by humanism to which custom responded— and in which it was implicated—had to do with boundaries of its linguistic ­commons, for Spenser and Harvey the problem is the English language itself, or, more precisely, the sound of the English language itself. Despite this difference, Spenser and Harvey likewise find legal custom equally valuable to their humanist project. It enables them to imagine a future for English poetry. One could even read their work as a rejoinder to the tensions More illuminates: Spenser and Harvey treat them as productive of poetic change. But, at the same time, Spenser and Harvey are confronting the boundaries of a commons too and must reimag­ ine those boundaries by reimagining the history of the English language. Their solution to the contradiction between classical and English poetry, and thus to the problem of cultural and geographic expansion, emerges from a paradox at the heart of common-law custom, the consensual conquest. In their discussion of the difficulty that the English accent poses for composing vernacular poetry using classical meter, Spenser and Harvey deliberately and stra­ tegically blur the difference between conquest and consent. They not only rely upon but also reverse the standard account of English legal custom as a means of resisting conquest.5 They reconceive of legal custom as part of the process by which the native is made to accommodate itself to foreign rule, on the one hand, 34–47; R.  McCabe, Spenser’s Monstrous Regiment: Elizabethan Ireland and the Poetics of Difference (Oxford: Oxford University Press, 2002), passim. 5  See Chapter 1, section V.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  79 and by which the foreign becomes an integral part of what is considered native, whether to a language, a commonwealth, or both. They recognize the strange ways in which custom and conquest can go hand-in-hand, revealing both the d ­ ifficulty of sustaining these categories in a complex history of conquest and the potential poetic productivity of eliding them. Custom, so intimately associated with the ­category of the native that it is practically synonymous with it, instead comes to represent for Spenser and Harvey the vanishing point between foreign and native. Ever since Richard Helgerson’s Forms of Nationhood, the Letters have been a touchstone text for the formation of English national identity; focusing on ­custom reveals them to be equally crucial for the formation of England’s colonial iden­ tity.6 This chapter proposes that the treatment of custom in the Letters as a pol­it­ ical discourse intertwined with conquest provides a heuristic framework for Spenser’s approach to the reconquest of Ireland in A View. Although Ireland of the sixteenth century and England of the eleventh have clear differences, the Letters and A View together invite us to understand their commonalities. Both texts contemplate two intertwined results of conquest, the introduction of a new system of law and a new language. My argument in this chapter is that the Letters’ engagement with common-law custom shapes Spenser’s approach to conquest in A View, accounting especially for the tensions in Spenser’s descriptions of Irish Brehon law. Spenser and Harvey’s debate about the English accent informs Spenser’s ­tendency to turn to etymology when discussing Brehon law’s central tenets and practices. For Spenser and for Harvey, custom was something to be invented, in the dual meaning of the term in this period: discovery and creation. Hannah Crawforth has recently shown that etymology in the mid-sixteenth to mid-seventeenth century could be described precisely as a process of “invention,” and thus it is no accident that linguistic history plays a role in both these texts.7 But, as we shall see, inven­ tion often goes awry. The strange and unexpected relationships between the for­ eign and the native engendered by the problem of quantitative verse and negotiated through the concept of custom reemerge in the political context of A View, where these relationships justify colonial violence. As a result of Spenser’s participation in this poetic experiment, however, he reveals in A View the difficulty of establishing linguistic and, therefore, political chronologies within a ­history of conquest that stretches even beyond the vexed borders of England and Ireland. In his most overtly political tract, Spenser self-consciously contemplates the in­com­men­sur­ abil­ity of language and politics.8 6 R. Helgerson, Forms of Nationhood: The Elizabethan Writing of England (Chicago: University of Chicago Press, 1992). 7 H.  Crawforth, Etymology and the Invention of English in Early Modern Literature (Cambridge: Cambridge University Press, 2013), 3, 18. 8  In insisting upon this ambiguity, I am indebted to work like H. Berger, Revisionary Play: Studies in the Spenserian Dynamic (Berkeley: University of California Press, 1988). But surprisingly few critics

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

80  Custom, Common Law, and the Constitution

I.  The Gaping Accent I begin with the mid- and late-sixteenth-century attempts to compose English poetry in classical meter as a way to understand Spenser’s and Harvey’s invoca­ tions of custom. Quantitative verse experiments were intended to advance the project of vernacular eloquence, yet the discussion surrounding them often had the adverse effect of calling attention to the latter’s inadequacies. As Derek Attridge explains, compared to Latin verse, English poetry had no discernable meter.9 Quantitative verse, at least as early modern poets and scholars understood it, measured syllable length—long or short—and created complex patterns of sound duration.10 English verse, by contrast, observed only the number of ­syl­lables in each line. Even the two possible compensations for the poverty (or  absence) of English meter only further emphasized it. The first, accentual verse, or the pattern of alternating stressed and unstressed syllables, might have allowed for a natural association with Latin meter in particular, but it was sparse in comparison to the complex understanding of Latin accent and its arrangement in poetry.11 The second, rhyme, the “chief life” of English poetry,12 became some­ thing of a whipping boy for advocates of quantitative verse.13 It is no wonder, then, that Harvey sounds a note of triumph when Spenser informs him that the royal court has received these experiments favorably. The language in which he does so, however, is itself surprising. Gently mocking the court’s penchant for news and novelty, Harvey describes the quantitative verse project in terms more befitting an expedition than a poetic manifesto: “our new famous enterprise for the Exchanging of Barbarous and Balductum Rymes with Artificial Verse.”14 With this description, Harvey immedi­ ately invokes quantitative verse’s complex relationship to a history of military conquests, a history that vexed writers about common law as well, and he frames have explored the political implications of Spenser’s use of ambiguity on the level of diction, especially in his non-poetic works. Two important exceptions are Andrew Hadfield, whom I discuss later, and Melissa Sanchez, who has argued that Spenser’s Faerie Queene represents the difficulty of distinguish­ ing between consent and coercion as a means to contemplate the vexed position of Elizabeth I’s ­subjects. See M. Sanchez, Erotic Subjects: The Sexuality of Politics in Early Modern English Literature (Oxford: Oxford University Press, 2011), 57–86. 9  D.  Attridge, Well-Weighed Syllables: Elizabethan Verse in Classical Metres (Cambridge: Cambridge University Press, 1974), 89. 10  Attridge has also shown that the association of sound duration with syllable quantity was a ­misunderstanding of Latin prosody (Ibid., 8). 11  Ibid., 89. 12 P. Sidney, A Defence of Poetry, in Miscellaneous Prose of Sir Philip Sidney, eds. K. Duncan-Jones and J. Van Dorsten (Oxford: Clarendon Press, 1973), 119. 13  While end-rhyme and quantitative verse are not technically incompatible, those who supported the use of quantitative verse in English poetry often figured them as mutually exclusive. 14  G. Harvey and E. Spenser, The Spenser–Harvey Correspondence, in Elizabethan Critical Essays, vol.  1, ed. G.G.  Smith (Oxford: Clarendon Press, 1904), 101. Unless otherwise noted, all further ­citations will be to this edition and cited in the text.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  81 his epistolary exchange with Spenser in those terms. Those who supported the project, like George Puttenham, emphasized rhyme’s Gothic origins: Rome’s inva­ sion by “swarmes of strange nations” led to the corruption of “Poesie m ­ etricall,” and even to “pleasure in Riming verses.”15 According to this account, English rhyme, a term that often encompassed both end-rhyme and accentual meter, was itself barbaric. The reintroduction of classical meter would be tantamount to a reversal of the Gothic invasion played out on English soil. Yet the quantitative verse project simultaneously rehearses another conquest, the Roman conquest of the Britons, since it would overturn what was understood to be England’s native poetic form. Philip Sidney claimed that rhyme had survived the Roman, Danish, and Norman invasions, and even Puttenham agreed that “our maner of vulgar poesie is more ancient than the artificial of the Greekes and Latines.”16 Advocating quantitative verse, or the “old-new method of versification,”17 then, places Spenser and Harvey in the position of both conqueror and conquered. Their responses to this peculiar position seem to be antithetical: Spenser embraces the former role, while Harvey champions the latter. Yet both wield the political language of cus­ tom to support their stances, and, in doing so, both subtly suggest that in this poetic debate there can be no easy division between conqueror and conquered, nor between foreign and native. Their exchange reveals as much about the mech­ anisms of conquest, particularly as they were conceived of in the realm of com­ mon law, as it does those of poetry. In the Letters, Harvey and Spenser agree that English verse should follow the classical model. However, they find themselves arguing over how precisely to implement this change. The debate hinges upon the relationship between poetry and pronunciation, since, as Spenser recognizes, the English accent, as it stands, makes it unsuitable for classical meter. The question of whether poetry can (or should) dictate pronunciation or simply reflect it becomes central to their exchange. But Spenser and Harvey knowingly construct a false dichotomy. Pronunciation was already intertwined with poetry and perhaps even influenced by it. That the term “prosody” referred to both the “theory and practice . . . of ­metrical composition” and “the correct pronunciation of words” reflects the degree to which the two overlapped.18 Staging this particular debate, I argue, allows them to chase to the surface the complexities of their poetic proposition. 15 G.  Puttenham, The Art of English Poesie, eds. F.  Whigham and W.  Rebhorn (Ithaca: Cornell University Press, 2007), 7–8. Because sixteenth-century discussions of English poetry sometimes use the term “rhyme” to refer solely to the “like sounding of words” and other times to both end-rhyme and basic accentual meter, which created a sense of rithmos, it is difficult to determine which he ascribes to the Goths. In fact, the actual roots of both are unclear, but accentual verse generally was associated with the Germanic languages. For an account of early Latin rhyme, see A.G. Rigg, in “Latin Meter,” Dictionary of the Middle Ages, ed. J. Strayer, Vol. 7 (New York: Charles Scribner, 1989), 371–6. 16 Sidney, Defence of Poetry, 76; Puttenham, 7. 17 R.F. Jones, The Triumph of the English Language (Stanford: Stanford University Press, 1974), 197. 18  “prosody,” n. Oxford English Dictionary, def. 1, 2.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

82  Custom, Common Law, and the Constitution The dispute erupts over the word “carpenter,” rather appropriately for two poets concerned with lengthening and shortening words and, above all, with measuring sound.19 Spenser begins by asserting that classical meter will “easily and fairly yielde itself to oure Mother tongue” but quickly offers the following qualification: “the onely or chiefest hardnesse, whych seemeth, is in the Accente” (98). The middle syllable of “carpenter,” for example, is “vsed shorte in speache, when it shall be read long in Verse” (98-99). The problem results from a clash between two rules of quantitative verse: the rule of position and the penultimate rule. According to the rule of position, a syllable is long if it ends with a con­son­ ant and the following syllable begins with another consonant, as is the case with the middle syllable of carpenter. According to the penultimate rule, which d ­ ict­ates that unstressed syllables be read short and stressed long, “pen” should be read short. Since Elizabethan poets often privileged the rule of position, Spenser resolves this contradiction by referring to it as a “long in verse.” As a result of this determination, however, he also assumes that the syllable should be stressed, leading him to describe the word as a “lame Gosling that draweth one legge after hir” (99).20 To address this problem, Spenser and Harvey switch from the poetic language of syllables and diastoles to a political one of conquest and ancient rights. Spenser asserts that the English accent “is to be wonne with Custome, and rough words must be subdued with Vse” (99). In his view, when it comes to poetry at least, English pronunciation will be dictated by position in a line; the very process of pronouncing words over and again in this way will have the effect of taming them. In other words, Spenser employs custom to effect the complete subjugation of the English accent to foreign strictures. If his model is to be followed, quantitative verse not only threatens to break poetry’s tie to the native past, represented by poets like Chaucer, but also to isolate poetry from common usage by forcing the sounds of words to follow the exigencies of meter.21 Harvey histrionically objects to this possibility: But hoe I pray you, gentle sirra, a word with you more. In good sooth, . . . you shal neuer haue my subscription or consent . . . to make your Carpēnter, our 19  On the centrality of carpentry metaphors to descriptions of language and poetry, see P. Parker, “Rude Mechanicals,” in Subject and Object in Renaissance Culture, eds. M. de Grazia, M. Quilligan, and P. Stallybrass (Cambridge: Cambridge University Press, 1996), 43–82. 20  Attridge, 145–6. 21  Although Chaucer did compose in accentual-syllabic lines that can be called “feet,” he was not understood to have done so by early modern writers. Interestingly, William Webbe and Francis Meres identify the alliterative Piers Plowman as the first example of an English poem that “obserued the quantity of our verse without the curiosity of Ryme,” but Webbe at least also considers the poem “harshe and obscure.” J.  Hollander, Vision and Resonance: Two Senses of Poetic Form (New York: Oxford University Press, 1975), 66. W.  Webbe, A Discourse of English Poetry (London: By Iohn Charlewood for Robert Walley, 1586), C3r–v; F. Meres, Palladis tamia. Wits treasury being the second part of Wits common wealth (London: Printed by P. Short for Cuthberg Burbie, 1598), 279r–v.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  83 Carpěnter, an inche longer or bigger than God and his English people haue made him.  (117)

Harvey insists instead on the inviolability of customary usage. To tamper with what “God and his English people haue made” would be “againste all order of Lawe, and in despite of Custome” (117). To force English syllables into classical constraints would be tantamount to overturning England’s ancient constitution: it would “forcibly vsurpe and tyrannize vppon a quiet companye of wordes that so farre beyond the memorie of man haue so peaceably enioyed their seueral Priuileges and Liberties” (117). Deriving its authority from immemorial origins (“beyond the memorie of man”), English usage, like English law, must resist alien regulation. Critics have recognized that this moment invokes a particular political and legal context. Helgerson has demonstrated the connection the correspondence makes between England’s emerging national and poetic projects.22 He reads the effort to write in quantitative verse as part of the effort to overcome England’s “national barbarism,” and to “repair” its “damaged self-image.”23 In his reading, Spenser and Harvey develop an “oppositional politics of national literary selfrepresentation.”24 Spenser becomes the voice of “absolutist” sovereign power, while Harvey assumes the position of the English people who sought to limit the monarch’s power by invoking the “common-law tradition.”25 Common law formed the basis for this resistance because of its strange temporal schema, “time immemorial.” This temporal schema posited common law as without origins, and, if its beginnings could not be located in any precise moment in the past, then its authority, even though it required the monarch’s approval in general, could be not associated with a particular monarch, William the Conqueror or otherwise. Rather, it derived from both the monarch and the people of England, with 22  While I follow Richard Helgerson and Colin Kidd in locating an emergent sense of national i­ dentity or a “national consciousness” in the period, I do not argue that this identity only began at this moment. Rather I attend to the particular contexts and contours of this particular moment of emer­ gence. For a trenchant account of the debates on national identity in the medieval period, see A. Butterfield, The Familiar Enemy: Chaucer, Language, and Nation in the Hundred Years War (Oxford: Oxford University Press, 2009), 25–35; Helgerson, passim; C.  Kidd, British Identities Before Nationalism (Cambridge: Cambridge University Press, 1999), 1–6 and passim. 23  Helgerson, 22. 24  Ibid., 28. 25  Ibid. Harvey was familiar, too, with civil law. It is unclear precisely when he began his study, but likely by the end of the 1570s, when he became a fellow at Trinity College Oxford, the college founded for the study for canon and civil law. In the early 1570s, he wrote in a letter to Thomas Smith that he thought civil law would make for “fruitful and commodious study” because of its grounding “either upon nature, or custom, or good decrees” (emphasis mine). I discuss the role of custom in civil law with regard to Philip Sidney in Chapter 4. In this chapter, I focus my attention on common law—for which there is also evidence he was studying at the time—not to preclude the possibility that he was interested in civil law, but because the language Harvey uses more closely evokes the ancient constitu­ tion than civil law descriptions of custom. See D.  Ibbetson, “Humanism and Law in Elizabethan England: The Annotations of Gabriel Harvey,” in Reassessing Legal Humanism and its Claims: Petere Fontes?, eds. J. Cairns and P. Plessis (Edinburgh: Edinburgh University Press, 2016), 282–95.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

84  Custom, Common Law, and the Constitution parliament as its persistent, immemorial representative.26 Harvey deploys all the hallmarks of English common law: its immemorial origins, popular authority, and, of course, its basis in custom. Accordingly, Helgerson concludes, “the rivalry between quantitative meter and rime was caught up in a much larger rivalry between two ways of being—between active self-making on [Greek] model and passive acceptance of time and custom on [Gothic] model” (emphasis mine).27 This critical account, important as it is, overlooks two crucial aspects of the dispute. First, Spenser and Harvey’s exchange is as much about England’s colonial identity—or more precisely, the specter of a colonial past—as it is about its national identity. The exchange indexes the extent to which the two cannot be disentangled. Spenser’s rhetoric of invasion—winning and subduing—ironically rehearses the process by which Rome colonized Britain. Harvey’s response, by contrast, invokes the Norman Conquest. Indeed, the legal language of custom could be used to negotiate the relationship between monarch and subject because it established the boundaries of the relationship between conqueror—specifically, William the Conqueror—and conquered. In the fifteenth century, John Fortescue described England’s (or Britain’s, then England’s) native legal system as unaltered by a seemingly endless cycle of invasions: The kingdom of England was first inhabited by Britons; then ruled by Romans, again by the Britons, then it was possessed by Saxons . . . Then for a short time the kingdom was conquered [predominatum est] by Danes, and then again by Saxons, but finally by Normans . . . And throughout the period of these nations and their kings, the realm has been continuously ruled by the same customs as it is now.28

Sixteenth-century chronicle histories offered more detailed versions of this account, attending especially to the Norman Conquest. Raphael Holinshed, for example, described how the English resisted William the Conqueror by insisting that he maintain their common law. Although William at first succeeded in 26  This account of common law’s origins and authority was becoming more and more prevalent in Spenser and Harvey’s time. As Alan Cromartie notes, from the early sixteenth century to the 1580s, the most important change in relationship to common law was the “increasing readiness to think of [it] as general custom, that is a set of determinate rules, created by the people . . .” This idea “was required by a theory that emphasized the law’s consensual basis.” Cromartie, The Constitutionalist Revolution, 182. 27 Ibid., 31. See also L.  Manley, Convention: 1500–1750 (Cambridge, MA: Harvard University Press, 1980), 173–5 and J. Richards, Rhetoric and Courtliness in Early Modern Literature (Cambridge: Cambridge University Press, 2003), 124–38. Richards argues that Harvey was more intentional in his invocation of common law than Helgerson gives him credit for, and that the Letters themselves, which model friendly, civil conversation between equals (rather than schoolmaster and student) are Harvey’s bid for “a less hierarchical model for social communication within the commonwealth” than had been proposed by predecessors like Roger Ascham (114). 28 J. Fortescue, De Laudibus Legum Anglie, trans. S.B. Chrimes (Cambridge: Cambridge University Press, 1949), 38–9.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  85 a­ brogating it, he faced multiple “mutinies and rebellions for reteining of those lawes” and eventually was forced to reinstall this native legal system.29 With their appeal to custom, the concept that shaped these historical accounts, Spenser and Harvey together reveal that England’s incipient national discourse is inextricable from its history as a conquered people. Second, the opposing roles that Spenser and Harvey assume in their debate both rely upon custom. Critics have focused solely upon Harvey’s use of this term, but it is equally crucial to Spenser, who views custom as the mechanism that accommodates change as it is introduced by conquest. On the one hand, this point of contact highlights the difference between the two correspondents: Spenser and Harvey figure the imposition of classical meter as a metaphorical territorial expan­ sion either to be instated or resisted through custom. On the other hand, Spenser and Harvey’s shared use of custom, I argue, reveals their positions to be more similar than they at first appear. Rather than being straightforwardly oppositional, Spenser’s appeal is implicit in Harvey’s. This confluence of terminology dismantles the binary between conquest and consent, one that was central to sixteenthcentury understandings of common law. Spenser’s use of custom has perhaps gone unremarked upon because it defies expectations in at least two ways. First, Spenser effectively repudiates the more conventional understanding of custom’s role in this metrical project. William Webbe blames the “canckred enmitie of curious custome: which as it neuer was great freend to any good learning” for the continuing presence of rhyme in English poetry.30 Rather than “breaking custome,” according to Webbe, “the finest witts and most diuine heads haue contented themselues with a base kind of ­fingering,” a mere “petty . . . manipulation" of words.”31 In The Scholemaster (1570), Roger Ascham likewise blames “tyme and custome” for English poets’ attachment to their native “barbarous and rude Ryming.”32 By contrast, Spenser imagines that, rather than calcifying entrenched poetic practices, custom will allow for the accommodation of, if not the new, then the newly introduced. It will serve to naturalize Latin meter. Puttenham articulates the logic behind this assertion when he justifies his choice to invent English appellations for rhetorical figures: their “straungenesse . . . proceedes but of noueltie and disaquaintance . . . , which in 29 R.  Holinshed, The First Volume of the Chronicles of England, Scotland, and Ireland (London: John Hunne, 1577), 290–93, 747–8. See also W. Lambarde, Perambulation of Kent (London: for Ralphe Newberie, 1576), 22–3, 318, 390, and Archainomia (London: for John Day, 1568), B4r, C1r. Drawing on these accounts, Sir Edward Coke would later write in his preface to his eighth Reports that “the grounds of our common laws at this day were beyond the memorie on register of any beginning, & the same which the Norman conqueror then found within this realm of England.” When William the Conqueror swore to observe these laws, they were already “good, approved, and auncient.” E. Coke, The Selected Writings and Speeches of Sir Edward Coke, Vol. 1, ed. S. Sheppard (Indianapolis: Liberty Fund, 2003), 245. 30  W. Webbe, A4v. 31  Ibid.; “fingering, adj.”, Oxford English Dictionary. 32 R. Ascham, The Scholemaster (London: John Day, 1570), 145.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

86  Custom, Common Law, and the Constitution processe of tyme and by custome will frame very well.”33 Using the same phrasing as Ascham, Puttenham neatly reverses his rationale so that “tyme and custom” are the very processes by which change can occur rather than be prevented. Similarly, for Spenser, custom will not further cement the practice of rhyme, but enable its displacement. He thus reimagines the stalwart “custom” as a flexible mechanism for innovation, or, more precisely, the imposition of foreign forms of poetic composition. Spenser’s use of custom in the Letters offers insight into the connection between his participation in the quantitative verse movement and his linguistic project in The Shepheardes Calender (1579). After reading E.K.’s epistle trumpet­ ing Spenser’s use of “good and naturall English words” and lamenting the im­port­ ation of foreign ones, one might have expected Spenser to frown upon the imposition of foreign versification onto English since it would only further estrange English from itself.34 But both the Letters and The Shepheardes Calender are concerned with the vexed relationship between foreign and native in the con­ text of English poetry. Paula Blank points out that E.K. “represents what seems most foreign in Spenser’s diction as what is most native.”35 Catherine Nicholson likewise notes that E.K.’s commentary “seems calculated to intensify the reader’s sense of remove from the poem he is about to read,” and that the eclogues them­ selves are characterized by a “paradoxical play of distance and proximity, foreign­ ness and familiarity.”36 Thus, while in some ways Spenser’s use of custom to make the strange familiar is the opposite strategy of E.K.’s commentary, it is driven by the same conceptual problematic. Even the author of Rhetorica Ad Herrenium felt compelled to offer a justifica­ tion for his translation of Greek rhetorical terms into Latin, explaining that “­concepts non-existent among us could not have familiar appellations. The trans­ lated terms, therefore, must seem rather harsh at first—that will be a fault of the subject, not mine.”37 More broadly speaking, continental and English humanists drew upon a classical tradition associated with Quintilian that considered custom to be the determinant of linguistic usage.38 Spenser is likely drawing on these 33  Puttenham, 131. For a similar claim, see R. Sherry, A Treatise of Schemes and Tropes (London: John Day, 1550), A1v. 34 E. Spenser, The Shorter Poems, ed. W. Oram, E. Bjorvand, R. Bond, T.H. Cain, A. Dunlop, and R. Schell (New Haven: Yale University Press, 1989), 16. 35 P. Blank, Broken English: Dialects and the Politics of Language in Renaissance Writings (London: Routledge, 1996), 113, 118. 36  C. Nicholson, “Pastoral in Exile: Spenser and the Poetics of English Alienation,” Spenser Studies 23 (2008), 46, 60. 37 [Cicero], Rhetorica Ad Herennium, Trans. Harry Caplan (Cambridge, MA: Harvard University Press, 1954), 251. 38  See Quintilian Institutio Oratio, Vol. 1, trans. D.A. Russell (Cambridge, MA: Harvard University Press, 2001), 1.6.16; T. More, “Letter to Dorp,” in The Complete Works of St. Thomas More, Vol. 15, ed. D.  Kinney (New Haven: Yale University Press, 1986), 5; L.  Nauta, In Defense of Common Sense: Lorenzo Valla’s Humanist Critique of Scholastic Philosophy (Cambridge, MA: Harvard University Press, 2009), 221–2, 271–80.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  87 traditions as well, but his invocation of military conquest with words like “winne” and “subdue” place them in a peculiarly political context. With this transformation, Spenser also reverses custom’s political usage. As we have seen, custom was usually identified with indigenous practices as a means of resisting invasion and foreign encroachment. Yet Spenser employs custom in ­precisely the opposite way, viewing it as an agent of conquest, as part of the ­process by which the native accommodates itself to foreign rule. In one sense, then, Spenser looks backward, calling upon Roman methods of colonization to justify a Roman model of verse. Holinshed, who is referenced in the Letters (100, 113), describes this process in his Chronicles: Agricola tooke paines to reduce the Britains from their rude manners and ­customs, vnto a more ciuill sort and trade of liuing . . . he exhorted them priuilie, and holpe them publikelie to build temples, common halls where plees of law might be kept . . . He also procured that noble mens sonnes should learn the lib­ erall sciences.39

Vespasian’s deputy subdued the English not only by sword, but also by replacing their “manners and customs” with Roman practices, building the infrastructure that would allow them to flourish. Although Holinshed does not discuss the introduction of a new language or set of laws, his description of cultural reform nonetheless resonates with Spenser’s approach to quantitative verse in its com­bin­ ation of force and custom. What was effective for one Roman rule might be ef­fect­ ive for another as well. In another sense, as we shall see, Spenser foreshadows the way that common law, the “common custom of the realm,” could be deployed for coercive purposes in the colonial context of Ireland. Spenser, however, is not the only one in this exchange who anticipates this possibility.

II.  A Quiet Companye of Wordes Harvey’s invocation of custom represents all that Spenser overturns when he claims custom for the conqueror’s side. Harvey seems to neatly align himself with the more conventional political and poetic usages of custom. Like the common lawyers and historians of his day, Harvey appeals to custom in order to preserve a native system. Glenn Burgess describes the legal appeal to custom as an attempt to imagine a “conquest of no effect”; the same could be said of Harvey’s.40 Just as the English who faced down William the Conqueror struggled to preserve 39  Holinshed, 69. 40 G. Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642 (University Park, PA: Pennsylvania State University Press, 1992), 62.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

88  Custom, Common Law, and the Constitution common law, Harvey strives to protect what we might call England’s “common accent” in the process of an inevitably disruptive poetic overhaul.41 Although Harvey counts himself a member of the quantitative verse movement, its other supporters still might accuse him of being another of England’s “finest wits,” blinded by custom. This characterization would fit in well with Harvey’s enemy Thomas Nashe’s descriptions of Harvey as a self-aggrandizing, pedantic hypo­ crite.42 But Jennifer Richards argues that our tendency to be guided by Nashe has led us to overlook Harvey’s ironic self-presentation and his “attachment to selfparody” in the Letters.43 For Richards, this plays out in the way that Harvey both asserts and circumscribes his own authority at various points in his letters.44 But we can extend this sense of irony to his treatment of quantitative verse itself. The account of Harvey’s common-law sensibilities in the Letters is not the whole story. If we attend to the words Harvey cites as made by “God and his English ­people,” words that enjoy “Priviledges and Liberties” “so farre beyonde the memorie of man,” a more nuanced appeal to custom begins to take shape. To wit, they are (in addition to “carpenter”): “Maiēstie, Royāltie, Honeēstie, Sciēnces, Facūlties, Excēllent, Tauērnour, Manfūlly, Faithfūlly, and a thousand the like” (118). These words all have one thing in common: they are polysyllabic. Thus, they are, for the most part, Latinate.45 One might imagine that this would be a way for the English to connect themselves to the classical past, but antiquarian historians rejected any association between Rome’s conquest of Britain and the presence of Latinate words in English. Thus, William Camden explains that while Latin was spoken briefly in Britain after the Romans arrived, the “British overgrew the Latin,” and then the Saxons completely vanquished any trace of it.46 Instead, Latinate words were associated in sixteenth-century discussions of poetry with the eleventhcentury Normans who brought Old French with them. For example, Puttenham explains in his own discussion of quantitative verse, while “our vulgar Saxon English stand[s] most vpon wordes monosillable, and little vpon polysillables . . .  Normane English which hath growen since William the Conquerour” contains “many polysillables euen to sixe and seauen in one word.”47

41  Of course, the idea of a common English language, or common accent, in the sixteenth century was itself a fiction. See Blank, 7–32. 42  See T. Nashe, Strange News (London: John Danter, 1593) and Have with You to Saffron-Walden (London: John Danter, 1596). 43  Richards, 120. 44  Ibid., 124–5, 132–4. 45  “Man” and the suffixes “ful” and “ly” all have Germanic origins and were introduced into Celtic British by the Anglo-Saxons. 46  This account seeks to downplay the importance of the educated classes continuing to read Latin. W.  Camden, Remaines Concerning Britain, ed. R.D.  Dunn (Toronto: University of Toronto Press, 1984), 20. Latin was also introduced into English by the Church, of course, but this history does not figure prominently in sixteenth-century historical or poetic discussion of the development of the language. 47  Puttenham, 85, 89.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  89 In fact, had English remained a primarily monosyllabic language, it would have been nearly impossible for English poets to write in quantitative verse. A predom­ inantly monosyllabic language by definition cannot follow the complex set of clas­ sical metrical rules that require an admixture of monosyllables, di­syl­lables, and trisyllables. Puttenham advises poets to disregard the natural accent and quantity of monosyllabic words in order to fit these rules and commends Richard Stanyhurst for his successful “copulation of monosillables” in his quantitative-verse translation of the first four books of the Aeneid.48 Roger Ascham ­recommends that English poets focus their efforts on carmen iambicum rather than carmen heroicum because English has “chiefly, wordes of one syllable, which commonly be long.” Thus, he explains, dactyls, “the aptest foote for that verse is seldom . . . there­ fore found  .  .  .  in English: and doth also rather stumble than stand vpon Monosyllabis.”49 Anglo-Saxon, as Puttenham puts it, “doth hardly admit the vse of those fine inuented feete of the Greeks & Latines.”50 The very possibility of imitat­ ing Latin verse relies upon the Norman Conquest. Rather than indigenous to England, then, words such as “Maiēstie, Royāltie . . . and a thousand the like” are the product of the Norman Conquest of England.51 Thus, these words could not have retained a certain pronunciation since time immemorial simply because they were not in England since “beyond the memorie of man.” If anything, iron­ic­al­ly, they are guilty of usurping and tyrannizing upon “the quiet companye of words” known as Anglo-Saxon. Something strange, then, is going on with Harvey’s appeal to custom. He applies a concept intended to deny the radical changes of the Norman Conquest to a set of words that clearly demonstrate its effects. William Camden complained of the “alteration . . . in our tongue” brought about by “the entrance of Strangers, as Danes, Normans and others which have swarmed hither),” while Thomas Smith blamed the Norman Conquest for the current state of orthographic “confusion.”52 Of course, writers made attempts to mitigate this linguistic history, claiming that very few words entered into the English language or that the generation after the Conquest reverted back to the “English tongue.”53 But by and large, while legal accounts of the Norman Conquest deny the Norman influence on English laws, linguistic accounts are forced to acknowledge the havoc that this conquest

48  Ibid., 90. 49  Ascham, 145. He credits Quintilian for “this lesson de Monosyllabis.” 50  Puttenham, 85–6. 51  According to Richard Verstegan, these words were also thought to bear the traces of an even more distant conquest, Rome’s conquest of Gaul, since they represent a mixture of Gallic and Latin. He even views the Roman conquest as that which separates the English and the Normans. Had the latter spoken the true Frankish language, he asserts, they would have been able to communicate with the English upon their arrival and would not have “seemed so great strangers.” R.  Verstegan, A Restitution of Decayed Intelligence (Yorkshire: Scolar Press, 1976), 200–3. 52 Camden, Remaines, 27; Jones, Triumph of the English Language, 146. 53 Camden, Remaines, 31–2; Verstegan, Restitution, 181–2.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

90  Custom, Common Law, and the Constitution wrought upon the English language. The words that Harvey chooses seem to highlight this rupture. Howard Bloch has observed that etymology functions much like a “ge­nea­ logic­al chain”; it is predicated upon continuity, relying upon the resemblance between progenitors and successors.54 In the case of a history of conquest, how­ ever, linguistic continuity not only across time, but also crucially across space, serves to highlight political discontinuity. In a shrewd sleight of hand that his reader likely would have recognized, Harvey transforms this mark of conquest into a sign of resilience. Harvey certainly would have known well the etymologies of his “quiet companye of wordes,” yet he chooses to claim these foreign words as native. Rather than interpreting Harvey’s counterintuitive mingling of linguistic and political history as a contradiction, I propose that Harvey be understood as attempting to bring together, even reconciling, two divergent accounts of the English past, one of English institutions like common law as continuous and unbroken, the other of the English language as marked by rupture. He thereby mediates the two impulses of the Letters, to instate the foreign and preserve the native, to celebrate their “famous new enterprise” and temper its effects. By describing Norman-derived words as possessing ancient liberties by custom, Harvey demonstrates how “by tyme and custom” the foreign has become part of the fabric of the English tongue, how “mingled” words (as Sidney describes them) come to function as a single language, so much so that traces of conquest can be redesignated as marks of resilience.55 That is, he demonstrates the process by which the alien can become native. Harvey thus reflects, or rather reflects on, the usage of custom in the legal and political realm, but not in the way he is usually assumed to do. In patently rewrit­ ing England’s linguistic history to claim that words introduced by the Conquest have existed in English since “time immemorial,” he shares a strategy with mem­ bers of Elizabethan parliaments who asserted new rights and privileges by insist­ ing that they too were customary and, thus, without beginning. As early as 1566, the House of Commons supported a “far-reaching claim about freedom of speech” by claiming it as an “ancient and laudable custom,” integral to their “accustomed lawful liberties.”56 In the process, however, Harvey also seamlessly 54 H. Bloch, Etymologies and Genealogies: A Literary Anthology of the French Middle Ages (Berkeley: University of California Press, 1986), 86. 55 Sidney, Defence of Poetry, 127. Intriguingly, Harvey may be akin to medieval historians such as Bede, who have a more cohesive sense of the diversity of language in the island of Britain. See L. Staley, The Island Garden: England’s Language of Nation from Gildas to Marvell (Notre Dame: University of Notre Dame Press, 2012), 19–21, 38. 56  Qtd. in J.E. Neale, Elizabeth I and Her Parliaments, 1559–1581 (London: Jonathan Cape, 1953), 155. As I discuss in the Conclusion, this strategy was used even more frequently—and radically—by seventeenth-century parliaments. The 1604 Apology from the House of Commons sought to explain to King James that their rights and liberties had all existed “from time immemorable,” and in the lead up to the English Revolution, parliamentarians consistently framed their rights in terms of ancient precedent. In a sense, then, Harvey, like Spenser, foreshadows custom’s political usages.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  91 articulates the notion of a consensual conquest, that apparent contradiction in terms that common lawyers strived so ardently to bring into being with the ­concept of “custom.” Instead of simply echoing common law, then, Harvey reveals the processes by which it is invested with authority. In this sense, he does not simply invent in the modern sense of the word, but in the early modern sense of un­cover­ing or discovering. We are now in a position to recognize the similarity between Spenser’s and Harvey’s stances in the Letters. Harvey’s stance becomes an instance of Spenser’s rather than an objection to it. Harvey illustrates that “rough words” have been “wonne with custome.” His own remarks provide the evidence that carpenter, along with majesty, royalty, and honesty, have all been “subdued with Vse.” Spenser’s and Harvey’s apparently antithetical appeals to custom share in com­ mon a conviction that custom’s strength resides not in its rigidity or its unyielding nature but precisely in its flexibility and manipulability. Harvey, like Spenser, draws attention to the powerful political dimension of custom. He may do so more obliquely, but no less powerfully—and perhaps even more so. Finally, Harvey demonstrates how custom proves invaluable to responding to colonial power, but in a way that likely would have surprised readers familiar with the common-law language of custom. Instead of being used as a means to resist ­foreign imposition, custom absorbs it and redefines it as organic to the common­ wealth. The peculiar combination of etymology and “time immemorial,” ­mustered by Harvey to confront the specter of England’s history of conquest and advance his vision of its poetic future, makes its way into Spenser’s contemplation of England’s own colonial power in Ireland.

III.  Laws to Fit the People, People to Fit the Laws It is rare that a poet is forced to test his own political metaphor, but this is ­precisely what happens to Spenser in the years following the publication of the Letters, years during which he was intimately involved in the process of winning and ­subduing the Irish. A View can be read as a document of that experience. But, I argue, it is also a reprise of Spenser’s much earlier correspondence with Harvey. Just as they had contemplated the imposition of foreign meter onto English verse, here Spenser advocates the implementation of a foreign legal system, England’s common law. In perhaps one of the stranger consequences of colonization, but one that had been foreseen by Spenser and Harvey, common law had been

See 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), 47–9; J. Greenberg, The Radical Face of the Ancient Constitution: St. Edward’s “Laws” in Early Modern Political Thought (Cambridge: Cambridge University Press, 2001), 182–242.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

92  Custom, Common Law, and the Constitution transformed from a means of resisting alien rule into a strategy for instituting and maintaining it. Critics have recognized that this shift is a central concern in A View, yet they have not identified the Letters’ role in shaping Spenser’s response to it. The quantitative verse movement may have died out in the intervening years between the publication of the Letters and the composition of A View, but the effects of the debates it inspired could still be felt. The poetic debate staged by Spenser and Harvey twenty years earlier becomes a model for grappling with the dilemmas and contradictions created by Irish colonization. If Spenser’s bold assertion of custom’s value to a conquering power comes through, so too does Harvey’s more nuanced version: Irenius unexpectedly voices Harvey’s instinct for preservation and his desire for widespread consent. But he likewise echoes Harvey’s radical manipulation of the temporal schema of “time immemorial” and, finally, of the categories “native” and “foreign,” demonstrating their instabil­ ity in both the political and linguistic realms. The substitution of English law for Irish Brehon law was central to the Tudor strategy for the reconquest of Ireland. Like common law, though, Brehon law was unwritten law and so it was often thought of as customary law. Spenser refers to it as custom in A View, but not as a sign of esteem. Rather, as Cormack argues, this designation demotes them to the same status as practices like the mantle or glib.57 Here Spenser builds upon a much longer history. One of the 1366 Statutes of Kilkenny, intended to halt the assimilation of the Anglo-Irish in the Pale, claims that Brehon law “by right ought not to be called law but bad custom.”58 It is strik­ ing that custom could be described as “bad,” yet in the Irish context, it was often deemed so. Sir John Davies writes in A Discouerie of the True Causes why Ireland was Neuer Entirely Subdued (1612): “if wee consider the Nature of the Irish Customes, we shall finde that the people which doth vse them must of necessitie bee Rebelles to all good Gouernment.”59 This was in part a strategy that opposed reasonable English customs (i.e., common law) to unreasonable Gaelic ones, but, as Cormack points out, it is also important to recognize the latter’s figuration as “mere custom,” that is, custom as opposed to law—a strange (and even “danger­ ous”) demotion during a time when custom was being hailed as the basis of English law.60 In this section, I follow Cormack’s characterization of A View as an attempt to come to terms with the English reconquest as a clash between two kinds of custom, which, again, puts pressure on the relationship between the common and the customary.61 While in the medieval period the Irish were considered a separate nation with their own laws, in the 1540s the Crown aimed to eradicate the division between 57  Cormack, 160. 58  Qtd. in Cormack, 161. 59  J.  Davies, A Discouerie of the True Causes why Ireland was Neuer Entirely Subdued (London, 1612), 165. 60  Cormack, 161. 61 Ibid.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  93 “English colony and alien Irish” and to integrate the Irish into “the political ­community under [its] sovereignty.”62 In order to do so, they had to confront the irreconcilable difference between Irish and English land law. Unlike the commonlaw system, in which land was held by an individual, in Irish law land was owned by a clan that was understood to be a corporate entity.63 Moreover, inherited land was partible; that is, it did not need to descend to one heir (ideally the eldest son) but could be parceled out among a number of clans. If a clan member died, either the chief or co-heirs would redistribute these lands again rather than pass it down to the deceased’s son. In Connacht, chiefs even redistributed land every May Day.64 The importance of the head of the clan in this system led the English to link it to another Irish practice, tanistry, in which a chief ’s successor, or tanist, was chosen during his lifetime based on seniority.65 And, because Kent also had a system of partible inheritance, there the English referred to Irish inheritance practices by the same name: “gavelkind.” Brehon land law, it was believed, posed a particular challenge to English rule. Practically speaking, the instability of this system, both because it often led to conflicts within clans and because chiefs were not bound to the same agreements and obligations of their predecessors, made it difficult for the English to centralize their power. But they also saw it as a the­or­et­ ic­al problem: the sept (or clan) “had the kind of temporal relationship to the land that in English law was usually reserved for the Crown.”66 Replacing Brehon law proved notoriously difficult to achieve, revealing, as Cormack explains, “an operative gap” between England’s dominium, or “posses­ sion,” of Ireland and its imperium, or “sovereignty,” over Ireland.67 There were two schools of thought about how to close this gap. Historians refer to the first, imple­ mented by Anthony St. Leger, Lord Deputy of Ireland under Henry VIII, as the “liberal program.” It left the framework of local Irish leadership intact but empha­ sized Ireland’s jurisdictional and constitutional assimilation through a process known as “surrender and regrant.” Irish lords would surrender their lands to the crown, apply for a grant of tenure under royal patent, and then would be regran­ ted their lands by the Crown.68 As a result, the Irish would exchange their own system of inheritance for the common-law system of primogeniture. Ciáran Brady argues that this policy was motivated by an ideology that “can be loosely

62 K.W. Nicholls, Gaelic and Gaelicized Ireland in the Middle Ages, 2nd ed. (Dublin: Lilliput Press, 2003), 53. B.  Bradshaw, The Irish Constitutional Revolution of the Sixteenth Century (Cambridge: Cambridge University Press, 1979), 196. The English were troubled by and tried to outlaw their set­ tlers’ assumption of those laws, but they were content to allow the Irish to continue practicing them. 63  Nicholls, 9, 67. 64  Ibid., 64–70. 65  Ibid., 28, 72. 66  Cormack, 139. 67  Ibid., 137. 68  For an extensive description of this process, see C. Brady, The Chief Governors: The Rise and Fall of Reform Government in Tudor Ireland, 1536–1588 (Cambridge: Cambridge University Press, 1994), 30 and Bradshaw, 196. Spenser describes how Irish lords traveled to the English Parliament in A View of the Present State of Ireland, ed. W.L.  Renwick (Oxford: Clarendon Press, 1970), 9. All further ­cit­ations are to this edition and are cited in-text.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

94  Custom, Common Law, and the Constitution described as common-law thought.” St Leger and his supporters believed that “English political culture could be revived in Ireland through the reform and extension of the institutions and procedures of law and administration.”69 The process of surrender and regrant resolved—or at least seemed to—the fundamen­ tal incompatibility of common law and colonization. That is, because common law was understood to be England’s native legal system, organically emerging from the English people and deeply connected to the English land, to implement it in another territory would engender a profound contradiction. The policy of surrender and regrant incorporated and reimagined that territory as English land so that it too could share in the provenance of common law. The second, Elizabethan school, overturned the policies of the 1540s and emphasized military conquest instead. The Irish would be compelled to accept English rule and the laws that came with it. Arthur Lord Grey, Lord Deputy of Ireland from 1580 to 1582, whom Spenser served as private secretary, was a proponent of this policy. He punishingly subdued the Second Desmond Rebellion and was responsible for the massacre at Smerwick. Spenser’s attitude in A View sits uneasily with both schools. At the start of the text, Irenius regards surrender and regrant as a spectacular failure because Brehon law, tantamount to Ireland’s common law, was still “privily practised” in wide areas of Ireland; the continued adherence to tanistry in particular meant that the legal relationship of the Irish to their land remained unchanged (5). Since prop­ erty played such a central role in England’s common law, the persistence of an alternative inheritance scheme was particularly damning. Irenius, however, still treats common law as critical to England’s colonial project. When Eudoxus inquires whether it might not be better to substitute Brehon law not with ­common law but rather with an entirely new set of laws, Irenius responds that new laws would only “breed a great trouble and confusion” (141). Irenius’s position combines two theoretically incompatible elements of Grey’s and St. Leger’s ­ approaches. A harsh military program, he believes, would render the Irish suit­ able subjects for common law: “Since we cannot now apply laws fit to the people, as in the first institution of commonwealths ought to be, we will apply the people and fit them to the laws” (141-2). If Irenius’s obstinate belief that one could adapt a native population to foreign strictures sounds familiar, that’s because it is. He echoes the Spenser of the Letters. In London in 1580, Spenser had espoused precisely the same view with regard to quantitative verse, that the English accent should be made to “fit the laws” of ­classical prosody. In Ireland, almost twenty years later, he still maintains, in effect, that this rough population must be “wonne with custom”—in this case common law—and “subdued with Vse.” This perverse formulation comes to life as Irenius

69 Brady, The Chief Governors, xi.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  95 proposes a combination of conquest and new customs that recalls Roman ­col­on­iza­tion. In this exchange, Spenser echoes an earlier moment in his poetic development, when he confidently proclaimed the coercive power of custom. St. Leger, the absent, third interlocutor in A View, seems to assume Harvey’s position. Although St. Leger did not advocate the preservation of native elements of Brehon law, he did rely upon consent and parliamentary processes. In the Letters, Harvey appeals to the authority of a metaphorical parliament: universal orthography—the first step, in his view, to a “common prosody”—should be “publickely and autentically established, as it were by a generall Counsel or act of Parliamente” (102). Just as Harvey believed that only the “vniuersall consent of all” could alter English syllables (121), St. Leger made consent the centerpiece of his legislation, a strategy that Irenius regards as a critical mistake (A View, 13). Rather than simply rehearsing the same position he had held in the Letters, however, Spenser absorbs Harvey’s as well, especially in his explanation of ­common law’s failure in Ireland. Irenius asserts that its implementation under Henry VIII (and, long before him, under Henry II) proved futile because “laws ought to be fashioned unto the manners and condition of the people to whom they are meant, and not to be imposed upon them according to the simple rule of right, for then . . . instead of good they may work ill, and pervert justice to extreme injustice” (11). This sentiment is consonant with the understanding that common law is uniquely suited to the English people; it would be folly to impose it else­ where. It is also consonant with Harvey’s poetic philosophy; the concept of “­fitness” is precisely why common-law language had suited Harvey’s defense of the English accent. Whereas Spenser could stake a single position in the witty repartee of the Letters, in A View he ends up trying to maintain both at once. These two statements of “fitness”—laws to fit the people and people made fit for the laws—that emerge during two separate discussions of common law are often considered a central contradiction of Spenser’s text, and on this basis, Spenser’s arguments are regarded as incoherent.70 Andrew Hadfield argues: “to read the two comments against each another is to ignore that the text exists ­formally as a dialogue.” Instead, Hadfield interprets the two statements as part of a temporal progression—first make the Irish subjects of true obedience under good governance and then redress any “defects in the comone law and in­con­veni­ ences” (142) so that they better fit the Irish.71 Bart Van Es argues that Spenser

70  See, for example, C. Brady, “The Road to the View: On the Decline of Reform Thought in Tudor England,” in Spenser and Ireland: An Interdisciplinary Perspective, ed. P.  Coughlan (Cork: Cork University Press, 1989), 42; B. Lockey, Law and Empire in English Renaissance Literature (Cambridge: Cambridge University Press, 2006), 124. 71  See Hadfield, Spenser’s Irish Experience, 63–4.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

96  Custom, Common Law, and the Constitution indeed desires “radical legal change,” and it is “only momentarily held in check” because he does not want to alienate his English readers.72 But if we treat the Letters, with its multivalent understanding of conquest, as a precursor to A View, the two statements are more similar than they appear. Indeed, even Spenser might not have seen them as contradictory, especially ­considering that his notion of “fitness” is an expansive one. To illustrate the ­concept, Irenius offers the example of the different laws that Solon gave to Athens and that Lycurgus made for Sparta. Transferring one country’s laws to another, he explains, would result in “great absurdity and inconvenience” (11). One might have expected Irenius to attribute the difference between their rulers’ laws to the difference between their peoples’ temperaments. But, in fact, Irenius character­ izes both the Athenians and Spartans as inclined to war. Lycurgus’s laws responded to this temperament by fostering that inclination, while Solon’s were intended “to ­temper” that “warlike courage with sweet delights of learning and sciences” (11). Despite what seems like a clear difference—one set of laws followed what was “natural” to the population while the other tried to reshape their behavior—both approaches for Irenius fall under the category of “fitness.” Perhaps more significantly, though, the notion of “fitness” at the end of A View relies upon the notion of fitness at its beginning. It is Irenius’s Harvey-esque understanding of “fitness” at the start of A View that compels him to return to the Spenserian formulation. Because Irenius has come to understand the bond between a people and their laws, he also realizes that a new set of regulations ­cannot be imposed without force. Both positions are necessary for Spenser to maintain a coherent policy that combines conquest with custom. Thus, the ­consensual conquest that Harvey had articulated can easily be transformed into a rationale for violence. But perhaps the strongest echo of the Letters, and the most direct link between Spenser’s 1580 poetic project and his later political one, is Irenius’s account of the Norman Conquest. Critics have observed that this account conspicuously diverges from the standard one offered by sixteenth-century historians and ­common lawyers.73 When comparing Irish recalcitrance to English obeisance, Irenius claims that common law is “that which William of Normandy brought in with his conquest and laid upon the neck of England” (4). Rather than having existed since “time immemorial,” common law had a specific moment of instan­ tiation, and in a conquest, no less. Spenser transforms the common-law tradition that enabled parliament to limit the monarch’s power into the latter’s instru­ ment.74 Common law, as Spenser here describes it, derives not from the people 72  B.  Van Es, Spenser’s Forms of History: Elizabethan Poetry and the ‘State of the Present Time’ (Oxford: Oxford University Press, 2002), 101. 73  Brady, “The Road to the View,” 42; D.J. Baker, Between Nations: Shakespeare, Spenser, Marvell, and the Question of Britain (Stanford: Stanford University Press, 1997), 109. 74 Baker, Between Nations, 109–10; Cormack, 162.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  97 but rather from the monarch and thus unconditionally supports the latter’s authority. So unorthodox was Spenser’s version that Brady has argued that it was the reason for A View’s suppression.75 In the process of rewriting the accepted version of history, Spenser also re­defines the concept of “fitness” altogether. Irenius explains that the English were willing to follow William the Conqueror’s law because of an accident of timing. A  formerly “peaceable kingdom,” they had “lately grown unto a loathing and de­test­ation of the unjust and tyrannous rule of Harold an usurper, which made them the more willing to accept of any reasonable conditions and order of the new ­victor” (4). According to Irenius, the imposition of common law in England ­succeeded because “it perhaps fitted well with the state of England then being” (4;  emphasis mine). The use of a deictic marker transforms the idea of fitness from the expression of the essential character of a people to one of historical contingency. This account of the Conquest may sound like the Spenser of the Letters, insist­ ing once again that custom and conquest work in concert, but the way in which it reconfigures history also recalls Harvey. Just as Harvey revises English political history in order to make an argument about English poetry, Spenser does so in order to make one about Irish politics. As Cormack puts it, Spenser “invoked a particular story in order to argue for a particular course of reform.”76 They both recognize that England’s past as a conquered people cannot remain separate from its future, whether as a nation or as a colonizing power. But, as Brady has recog­ nized, Spenser surrenders a surprising amount in order to justify the imposition of English common law on Irish soil, radically reconfiguring English history.77 Dispensing with “time immemorial” in favor of a narrative of historical contin­ gency allows him to justify common law as an agent of conquest without resort­ ing to the legal maneuvers that St. Leger deemed necessary. But whereas St. Leger’s theory altered the Irish land, rendering it essentially English, Spenser alters the relationship of the English to their own land by making alien the system of law that governed it. Instead of shifting the temporal relationship between the Irish people and their land, as St. Leger had, Spenser recalibrates the English one, thus dramatically changing their sense of the past. In the Letters, Harvey had turned to common law and custom to transform the contingent nature of the English language—developed not organically but through accidents of history—into a permanent one. In A View, Spenser remakes the permanent relationship embodied by custom and common law into a contin­ gent one. This difference can be accounted for by the disparity in their positions, Spenser as conqueror and Harvey as conquered. But Harvey has something to teach the conqueror nonetheless. In the Letters he demonstrates how common 75  Brady, “The Road to the View,” 41–4.

76  Cormack, 163.

77  Brady, 45.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

98  Custom, Common Law, and the Constitution law becomes a guide not only to the past, but also to the poetic and political future—and so it proves to be in A View. Both texts, however, also reveal that this process puts pressure on the very things this legal institution was thought to enshrine. The exigencies of poetic history compel Harvey to manipulate the idea of “time immemorial” so that words belonging to a post-Norman Conquest world become part of the pre-Conquest past. But the exigencies of political history require Spenser to go that much farther, to dismantle the temporal schema of “time immemorial” altogether. To maintain a colony, England must undo the foundation of its own constitution.

IV.  Words Mingled of English and Irish Together If common law’s history is subject to scrutiny and revision in A View, so too is the history of the legal system it would supplant, Brehon law. Not content to describe Ireland’s legal customs, Spenser also searches for their origins, and the main tool he employs to do so is etymology. Irenius often introduces and describes an Irish legal custom, only to have Eudoxus urge him to relate its etymology. If a word can be traced to a certain location, the logic goes, then the custom must have ori­gin­ ated there. In his use of linguistic history, I argue, Spenser again borrows a strat­ egy from Harvey. In the Letters Harvey had demonstrated the malleability of etymologies and so indeed they prove to be in A View, where they are subject to the political will of those who wield them. Harvey’s strategy, again, requires a reversal. Whereas Harvey rewrites England’s linguistic history in order to claim foreign words as native, Spenser turns to etymology to render alien that which appears to be indigenous to Ireland. But something unexpected occurs in Spenser’s political usage of etymology. Instead of confirming the effects of ­conquest, it calls them into question. Harvey’s tactic is playfully to obscure lin­ guistic origins; Spenser’s is to show the impossibility of ever determining them. In a political tract that would seem invested in stabilizing chronologies of conquest, Spenser lays bare what Harvey understood all along, the temporal instabilities of history and language engendered by conquest that custom at once registered through its anti-chronological temporality and was often invoked to stabilize.78 Anne Fogarty has illuminated the role of etymologizing in A View, character­ izing it as a “potent tool in the development of a colonial rhetoric.” Etymologies often reveal a history of Irish disorder, thus reinforcing the need for English

78  Andrew Zurcher and Hannah Crawforth have demonstrated the centrality of etymology to the religious and political project of the The Shepheardes Calender. Here, by contrast, I am interested in the peculiar instability at the heart of etymology that emerges in the Letters. A.  Zurcher, Spenser’s Legal Language: Law and Poetry in Early Modern England (Cambridge: D.S.  Brewer, 2007), 30–6; Crawforth, 19–53.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  99 rule.79 This strategy is even more intertwined with historical processes than Fogarty allows. Spenser appeals to linguistic history to establish a pattern of past conquests of Ireland, one that enables the English to imagine another, more com­ plete one at their hands. When Spenser inquires into the root of a word, he is at the most basic level probing Ireland’s susceptibility to conquest. At stake in ­etymologizing is the nature of national identity, of whether central institutions can be claimed as indigenous or must be acknowledged as an imprint of external rule. What is perhaps most striking about Spenser’s etymologies is that they often reveal that Irish customs are not, in fact, Irish—or, at least, not originally so. When Irenius explains tanistry, Eudoxus proposes an etymology for it: “When I heard this word Tanist, it bringeth to my remembrance what I have read of Tannia that it should signify a province of seigniory” (8). The term “Tania,” according to Eudoxus, “came anciently from those barbarous nations that over­ ran the world . . . And so it may well be that from thence the first original of this word Tanist or Tanistry came, and the custom thereof that sithence as many ­others else bene continued” (8). Both the word and the custom it describes are foreign imports. Eudoxus does not specify the identity of these “barbarous nations,” but pre­sum­ably he refers to the Goths, or perhaps even the Gauls.80 Either way, though, the foreign appellation here indicates that this central ­custom is itself foreign, brought in by conquest. If etymology exposes as alien a law as central to Ireland as ­tan­ist­r y, then this paves the way for the English to see the apparently intractable Irish as vulnerable to conquest. Most encouraging in this respect are words that reveal a prior English ­conquest, such as “kincogish,” the legal concept by which the head or chief is “answerable and bound” to bring forward his own clan or family member to court when charged with a crime (35). According to Irenius, kincogish “is a word mingled of English and Irish together,” which means, or so he chooses to interpret it, that “the custom thereof was first English and afterwards made Irish” (36). Irenius “remember[s]” that a similar law was made by King Alured in England (36). This ancient practice had been so thoroughly absorbed into the Irish catalog of ­customs that Irenius now must establish its “Englishness.” In doing so, he suggests that England once had the power to complete their conquest, and thus they should be able to do so again.81 That is, as with his account of the institution of common law, Spenser looks backward in order to look forward. Irish etymology, at least as devised by the English, is destiny. 79 Fogarty, 85. Andrew Hadfield has also termed etymology an “epistemological principle” in A View. Hadfield, Spenser’s Irish Experience, 98. 80 Spenser seems to be drawing on William Camden, but with a change. Camden writes that “Tania” was a term that meant “region” in ancient Greek (A View, 191n.). It is difficult to determine if this is a mistake or a deliberate error. 81  Hadfield suggests Spenser’s British etymologies for place names in A View are similarly mo­tiv­ ated. They elide territorial distinctions to “validate[] a right to the possession of the Irish crown by virtue of an ancient conquest and colonization” (Hadfield, Spenser’s Irish Experience, 107–9).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

100  Custom, Common Law, and the Constitution But, as Harvey has taught us, if etymology is destiny, it is a remarkably slippery one. Indeed, from the outset, locating linguistic origins proves to be the begin­ ning of a conjectural, contingent process. Strikingly, although Spenser uses ­etymology in the sections of A View that treat Irish nonlegal customs (sartorial and military, for example) and religion, it is in this section on Brehon law that etymological uncertainty is most conspicuous. Most of Eudoxus and Irenius’s der­iv­ations are qualified ones, accompanied by phrases such as “I thinke,” “I ­suppose,” and “I am partely led to believe,” rather than confidently set down as fact—even when another, competing etymology is being debunked (12, 39–40, 45, 48, 60). Eudoxus’s hesitance is to be expected. After all, he is in the position of deferring to Irenius’s expertise. But, Irenius often expresses uncertainty; to him, etymologies are equally suppositions (45, 48, 60). By figuring these etymologies as the results of the two interlocutors’ own reasoning (“I thinke,” “I suppose”) rather than as supported by an external authority, Spenser underscores the diffi­ culty of ever settling the matter. With these constant reminders that etymologies are still up for grabs, Spenser also destabilizes any attempts to postulate temporal primacy within the space of Ireland. This is especially prominent in the case of that peculiar class of words that combine English and Irish. For example, Irenius uses etymology as evidence that “coigny and livery,” the punishing “customarie services” that tenants were forced to render their lords, “at first were customs brought in by the English upon the Irish” (34-35).82 But he draws this conclusion only after revealing the ambigu­ ity of their linguistic origins. “I know not whether these words be English or Irish,” he admits (34). Although Irenius initially conjectures that they are “ancient English,” both because “Irish men can make no derivation or analogy of them” and because “livery” is “by common use” in English, he encounters difficulty with the term “coigny”: “whence the word is derived is very hard to tell” (34). After considering and rejecting an English etymology (“coin”), Irenius concedes that “coigny” must be an Irish word: “But I think rather that this word coigny is derived of the Irish, the which is a common use amongst the Irish landlords to have a common spending upon their tenants” (34). Strangely, Irenius concludes his discussion of coigny’s linguistic origins at this point, leaving its precise Irish etymology unstated, as though he can go no further in his speculation.83 “Coigny” remains beyond etymology’s reach. The claim to the linguistic, and therefore temporal, primacy of customs is always left open to contestation in A View, as English and Irish race each other into an ever-receding past. English words may catch up to Irish ones, but they can never overtake them. At best, Irenius can offer his own interpretation of a 82  “Livery,” according to Spenser, refers to the food provided to the lord’s and his army’s horses, while “coigny” to the provisions offered to the men themselves. 83  According to Brady the actual origin of “coigny” is “coinmeadh” (The Chief Governors, 6).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Inventing Custom  101 mingled word, “kincogish,” and of an English term and an Irish one, “coigny and livery,” set side-by-side.84 But these words hold limited potential for England’s colonial project. “Kincogish” might be said to represent the nightmare of col­on­ iza­tion, that the colonizer’s customs could be so thoroughly absorbed by the ­col­on­ized that it requires extensive philological inquiry to recover them. Spenser explicitly addresses the inverse problem when Eudoxus puzzles over the “delight” that the Old English take in speaking Gaelic, since “it hath bene ever the use of the conqueror to despise the language of the conquered, and to force him by all means to learn his” (67). Moreover, “coigny and livery,” a practice that the English considered barbaric and took measures to halt, is an odd choice for Irenius to claim as a native English custom.85 Indeed, these words reflect the past and future of Anglo–Irish relations, but not in the way that the New English colonizers would wish: two populations coexisting but not commingling, and when ­commingling, always to the detriment of the English rather than the advantage of the Irish (or so Spenser sees it). When Irenius and Eudoxus call upon etymology to arbitrate between native and foreign customs, then, they end up revealing the difficulty, even impossibility, of laying claim to either. Philological inquiry even confuses which designation, native or foreign, is the more desirable. This would seem to work at crosspurposes in A View. Perhaps for this reason, Hadfield interprets Spenser’s use of etymology as “a bit of a cheap trick, albeit useful for propaganda purposes.”86 While I would not deny that this is part of Spenser’s goal, I argue that the way Spenser dwells on this uncertainty questions the viability of language for propa­ ganda. Spenser puts pressure on the notion that language could operate like a trick, that is, could be wielded and contained to orchestrate a predetermined out­ come. Leaving room for uncertainty undermines the narrative that etymology is brought in to support, a straightforward chronology in which the various ­conquests of Ireland each effected legal change. Even as Spenser employs this strategy of etymologizing, then, he casts suspicion on it. In what is arguably his most politically programmatic text, Spenser registers the complexity of language and, beyond that, the absurdity of wresting a singular politics from linguistic ­history. It is, I argue, his engagement with custom almost twenty years earlier that shaped this approach, even if it went unacknowledged by Spenser himself. As the subject of a history of multiple conquests, Harvey had played upon this uncertainty and complexity to his own advantage. Perhaps Spenser is attuned to it in A View because, like Harvey, he knows well that England is no exception. 84  McCabe points out that “kincogish” is in fact not a “mingled word,” but “a corruption of the Gaelic ‘cin cómfhocais’ or ‘liability of kindred’ ” (196). 85  One of these attempts was a direct cause of the Geraldine Rebellion of the 1530s, which led to St. Leger’s reforms (Brady, The Chief Governors, 4). 86  Hadfield argues that when Eudoxus and Irenius pun on Duns Scotus’s name in order to mock Richard Stanihurst, they expose etymology as such. Hadfield, Spenser’s Irish Experience, 98–9.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

102  Custom, Common Law, and the Constitution Eudoxus offers three place names to support the derivation of “tanistry” from “tania,” a “barbarous” term for a “province or seigniory,” treating each case as a separate suffix: “Aquitania, Lusitania, and Britannia” (8; emphasis mine). Each territory he lists has received its appellation from “those barbarous nations that overran the world” (8). Britannia becomes “Brith” and “Tania,” so that one of England’s earliest names betrays its past. Rather than distinguish between ruler and ruled, etymology, with its lens trained on custom, draws the English into a shared history of conquest. In this moment, Spenser alludes to the Gothic ­conquest that was thought to have introduced rhyme into classical poetry, a ­conquest that is inextricably bound up with the history Harvey had to confront in order to protect the “English” accent.87 Spenser and Harvey’s complex and at times perverse interweaving of linguistic, literary, and political history in the Letters was born of a poetic question: can English verse conform to classical standards? In attempting to answer that ques­ tion, they articulated a range of seeming contradictions, from the coercive poten­ tial of custom to the consensual possibilities in a moment of conquest. These were precisely the contradictions necessary to sustain England’s own version of its past as a nation that had endured multiple conquests and of its future as an imperial power. Spenser and Harvey achieved these effects by appealing to, but in the ­process reshaping, the legal concept of custom, recognizing its value not only in preserving the past but also in justifying innovation. Some of the central strat­ egies of Spenser’s political tract can be traced back to this poetic debate. Even as Spenser turns the flexibility of the political past into a tool of colonial rule, he also makes explicit the textured history of language that Harvey had archly concealed. The Letters in many ways seem like a fleeting moment in Spenser’s poetic devel­ opment: no great poem in quantitative verse ensued, and the project was soon dropped. Yet Spenser and Harvey’s witty literary personae generated a sophisti­ cated understanding of custom as a means to navigate between the past and future and the foreign and native, one that would prove as central to Spenser’s political career as to his poetic one.

87  See Puttenham, 7–8.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

4

Performing Custom Poetry and the Aporia of Constitutional Authorship in Sidney’s Old Arcadia

In Chapter  3, Spenser and Harvey turned to custom in order to incorporate ­classical meter into English poetry (or vice versa). For them, the axis of native and foreign at the heart of custom proved vital. In this chapter, I turn to another text that is equally concerned with the English language’s connection to the classical past. Philip Sidney’s Old Arcadia (1580), a prose romance set in an idyllic Greek province and based, in part, on the Greek romance Aethiopica by Heliodorus, is brimming with experiments both in meter (some of them quantitative) and in the classical genre of the eclogue. It is a major entry in the rolls of English texts that represent and imitate the classical past. As we will see, like Spenser and Harvey, Sidney turns to custom to construct his authorship in relationship to this past, but whereas the foreign–native axis was most generative for Spenser and Harvey, for Sidney it is that of the written and the unwritten. Chapters 2 and 3 have touched on the importance of custom’s unwritten status in terms of its rootedness in ­practice—there are no laws in Utopia but rather repeated practices; usage over time makes quantitative meter possible in English and English rule possible in Ireland—but this chapter focuses extensively on the category of practice, and ­particularly on its relationship to ritual and performance. Sidney grapples with— and makes the most of—custom’s affiliation with these categories, both with respect to governance and to his own authorship. With this focus, this chapter also con­siders custom’s relationship to periodization in more depth. Sidney’s Old Arcadia is framed by a crisis of political change. It opens with a prediction about Arcadia’s future, which has been sought out by Arcadia’s ruler, Basilius: Thy elder care shall from thy careful face By princely mean be stolen and yet not lost; Thy younger shall with nature’s bliss embrace An uncouth love, which nature hateth most. Thou with thy wife adult’ry shall commit,

Custom, Common Law, and the Constitution of English Renaissance Literature. Stephanie Elsky, Oxford University Press (2020). © Stephanie Elsky. DOI: 10.1093/oso/9780198861430.001.0001

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

104  Custom, Common Law, and the Constitution And in thy throne a foreign state shall sit. All this on thee this fatal year shall hit.1

In true romance fashion, Basilius ensures the fulfillment of this dire oracular ­prediction with the very steps he takes to avoid it, the first of which is to abdicate his throne and enter into a pastoral retreat. In the wake of this abdication, Arcadia devolves into chaos: the Arcadians rebel not once but twice, consider new forms of governance including democracy, and finally make their way back to mon­archy with the guidance of Philanax, Basilius’s trusted counselor, and Euarchus, the king of Macedon. Indeed, with all these changes and proposed changes in governance, one could even call the Old Arcadia a constitutional romance. Just as physical wandering, errare, is a defining condition of romance, the Old Arcadia can be defined by what I call constitutional wandering, the movement from one system of governance to another (or even its contemplation). And just as the physical wandering of romance is both morally problematic and narratively necessary, so too is the Old Arcadia’s constitutional wandering.2 In the first of  many set-piece dialogs that characterize Sidney’s prose and connect to the sic et non style of early modern political prose, Basilius’s counselor Philanax urges him to reconsider his decision to abandon his throne, first reminding Basilius of his successful thirty-year reign and then asking, “why should you now seek new courses, since your own example comforts you to continue on . . . ?” He advises Basilius: “Let your subjects have you in their eyes, let them see the benefits of your justice daily more and more; and so must they needs rather like of present sureties than uncertain changes” (7–8). Basilius, in turn, inquires why he should not respond to these new circumstances, just as we change “our apparel according to  the air, and . . . the ship doth her course with the wind.” Philanax counters (and closes the dialog) by substituting the duke’s sartorial and maritime analogies, the latter a commonplace one for the state, with a lithic metaphor that conveys the pinnacle of princely immutability: “rocks stand still and are rocks.” When the duke persists in his decision, the narrator himself condemns it as emerging from misguided “dukely sophistry” (9). The rest of the romance bears out the narrator and Philanax’s fears about the effects of political innovation. These wanderings—and the romance itself—are brought to a close by the trial scene, the second half of the frame that seems to set things right. Remarkably, what resolves the Arcadian conquest is not a military or legal conquest but rather the Macedonian king Euarchus’s willingness to take on Arcadian customs. The efficacy of his temporary rule and of the trial over which he presides depends upon this fact. 1 P.  Sidney, The Countess of Pembroke’s Arcadia (The Old Arcadia), ed. J.  Robertson (Oxford, Clarendon Press: 1973), 5. All further citations are from this edition, unless otherwise noted, and will be hereafter cited in the text. 2 See  P.  Parker, Inescapable Romance: Studies in the Poetics of a Mode (Princeton: Princeton University Press, 1979).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  105 Euarchus, as we shall see, manages the problem of political change by d ­ istributing sovereignty to both ruler and subjects. This chapter argues that in doing so he becomes an exemplary monarch, at least according to sixteenth-century English and international Protestant and legal thinkers. Critics have long understood the Arcadia to be influenced by Sidney’s “forward Protestantism,” particularly as it manifested itself in debates about the possibility of Elizabeth I’s marriage to the Catholic Duke of Anjou. But they have tended to focus on certain parts of the text: Basilius’s abdication of power; the Arcadians’ first rebellion; or the poetic beast fable denouncing tyranny “On Ister Banks,” sung by Sidney’s alter ego Philisides.3 By focusing instead on Euarchus as a figure for the Protestant sovereign, this chapter argues that Sidney makes the case for a limited monarchy rooted in custom. At the same time, however, a momentary shift in the valence of custom, one that emphasizes its performative aspect, ultimately reveals that its power to coalesce a people is unstable, equally available to the monarch who seeks to assert control. Sidney’s Arcadia poses the question: Does the sovereign submit to custom or is the monarchical appeal to custom simply a canny political expedient? This question influences Sidney’s conceptions of his own authority, which, I argue, he conceives of in similarly ancient constitutionalist terms. In his use of the rhetorical figure of aporia, or doubt, he experiments with ceding some of his authority to the reader.4 In the eclogues he recuperates custom’s affiliations with performance. The eclogues, those spontaneous poetic contests that punctuate the narrative and showcase the flexibility of English as a poetic language, evince a tension between the author’s individual authority and the shepherds’ common one. This tension animates the eclogues, but rather than simply recapitulating the problem of the status of the monarch’s authority, they resolve it through a process of revision. Moreover, Sidney draws upon common law’s rejection of origins in order to imagine a form of literary authority that differs from persistent modern accounts of the melancholic early modern artist whose art is produced by the desire to recover lost origins. In this way, Sidney’s engagement with common law presents a challenge to how we periodize early modern authorship. 3  Edwin Greenlaw first proposed an allegorical reading of the Arcadia based on the Anjou match in 1913 in “Sidney’s Arcadia as an Example of Elizabethan Allegory,” reprinted in Essential Articles for the Study of Sir Philip Sidney, A.F.  Kinney, ed. (Hamden: Archon Books, 1986), 271–86. See more recently, R. McCoy, Sir Philip Sidney: Rebellion in Arcadia (New Brunswick: Rutgers University Press, 1979), Chapter Six; B. Worden, The Sound of Virtue: Philip Sidney’s Arcadia and Elizabethan Politics (New Haven: Yale University Press, 1996), 137–45, 266–80; A.  Hadfield, Literature, Politics, and National Identity: Reformation to Renaissance (Cambridge: Cambridge University Press, 1994), 154–69; C. Shrank, Writing the Nation in Reformation England, 1530–1580 (Oxford: Oxford University Press, 2004), 240–54. 4  I join recent critics such as Jenny Mann and Alex Davis in seeing particular rhetorical figures as crucial to understanding Sidney’s poetics. Mann focuses on the parenthesis in J.  Mann, Outlaw Rhetoric: Figuring Vernacular Eloquence in Shakespeare’s England (Ithaca: Cornell University Press, 2012), 87–117. Davis traces his use of gradatio in A. Davis, “Revolution by Degrees: Philip Sidney and Gradatio,” Modern Philology: Critical and Historical Studies in Literature, Medieval Through Contemporary 108.4 (May 2011), 488–506.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

106  Custom, Common Law, and the Constitution

I.  Euarchus Among the Protestants Toward the end of the Arcadia, believing their king murdered by their own queen, the Arcadians fall into “confused and dangerous divisions” (320). With neither “experience to rule” nor a ruler “to obey,” they succumb to a whole host of fears— “neighbours’ invasions, civil dissension, cruelty of the coming prince, and whatsoever in common sense carries a dreadful show”—without possessing the means to prevent any of these potential calamities (320). This “dangerous tumult,” ­however, also represents an opportunity for the Arcadians to shape their own government, to which end different proposals begin to emerge. The prophecy and resulting false death in effect set off a constitutional peripeteia. At one extreme, the shepherds advocate some form of democracy: “[S]ome . . . cried to have the state altered and governed no more by a prince; marry, in the alteration many would have the Lacedemonian government of few chosen senators; others the Athenian, where the people’s voice held the chief authority.” The narrator is quick to assure readers that “these were rather the discoursing sort of men than the active, being a matter more in imagination than practice” (320–1), reflecting Sidney’s own discomfort with popular rule. Yet the fact that the possibility is raised by this group of shepherds is in itself remarkable. At the other extreme, the Arcadians confront the grave threat of tyranny, which emerges from multiple fronts. Timautus, a nobleman of “extreme ambition” that “could be as evil as he listed,” recommends that Arcadia be partitioned into two states and that he wed one of the princesses and rule half with her, while Basilius’s trusted advisor Philanax do the same with the second princess (321–2). Despite Timautus ever so generously leaving the choice of which princess to Philanax, the latter recognizes that the “tyrannically minded” Timautus must be prevented from ruling (322). Pyrocles and Musidorus, the two princes who have been in disguise as a shepherd and Amazon in order to woo Basilius’s daughters, represent another potentially tyrannical outcome. While at least one nobleman believes that “the destinies have ordained a perpetual flourishing to Arcadia when they shall allot such governor unto it,” Philanax worries that a foreigner on the throne would bring on “bloody conflict” (325–6). Finally, even before the supposed death of Basilius, the Arcadians had been vulnerable to usurpation by countries unlikely to continue his benign form of monarchy. Euarchus, King of Macedon and Basilius’s friend, had planned his visit to Arcadia precisely because with the vacuum of power in Arcadia “he saw the Asiatics of the one side, the Latins of the other, gaping for any occasion to devour Greece” (358).5

5  Brian Lockey argues that the “Latins” represent Spain and the “Asiatics” the Ottoman Empire. See B. Lockey, Law and Empire in English Renaissance Literature (Cambridge: Cambridge University Press, 2006), 58.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  107 Euarchus’s arrival provides a fortuitous solution to this political crisis, but one that Philanax recognizes must be carefully managed. He suggests to the Arcadians that “since among ourselves we cannot agree in so manifold partialities, we do put the ordering of all these things into his hands, as well touching the obsequies of the duke, the punishment of his death, as the marriage and crowning of our princess” (354). Although the Arcadians initially fear that Euarchus, “in that ­ill-ordered weakness of theirs . . . had come to conquer their country” (354), Sidney defines Euarchus’s temporary rule in stark contrast to tyranny. Their fears about his imperial ambitions are quelled when they realize he has brought along with him only a small retinue, and they take a “general oath” in which they “yield full obedience to Euarchus, so far as were not prejudicial to the laws, customs, and liberties of Arcadia” (355). In this moment of political upheaval, Sidney alludes to multiple contexts for custom’s power. First, Protestant writings became an important site for the ex­plor­ ation of the power and limits of political expression. International Protestants were concerned primarily with the people’s right to resist Catholic monarchs, whom they construed as tyrants based on the logic that if a monarch’s authority ultimately derived from God, then if he or she adhered to the wrong religion, his or her reign could not be divinely supported and was therefore illegitimate. This granted the people the right to depose their own monarch. Two important works published in 1579, most likely, around the same time that Sidney was composing the Arcadia, gave voice to this logic. George Buchanan justified the 1567 coup d’etat that overthrew Mary Queen of Scots in his De Jure Regni, while Hubert Languet and Philippe Du Plessis-Mornay composed Vindiciae Contra Tyrannos, “one of the most eloquent Huguenot justifications of resistance against tyranny,” in the aftermath of the 1572 St. Bartholomew’s Day Massacre, during which Huguenot political leaders were assassinated and thousands of French Protestants were murdered by Roman Catholics, who were sanctioned, if not instigated, by Catherine de’Medici.6 Sidney, who was in Paris on his first diplomatic mission, witnessed these events himself. Both works took as their central question: “What rights did kings and subjects have in relation to each other, and whence had those rights derived?”7 The belief that their religion was under persecution led them to articulate a theory of limit­ed monarchy. As Blair Worden explains: If the tyrants were removed, persecution would or might be removed too. To secure their removal the claims of the political community had to be shown to be superior to those of its kings. In the theses of Buchanan and Languet and Mornay, 6 D. Norbrook, Poetry and Politics in the English Renaissance, rev. ed. (Oxford: Oxford University Press, 2002), 84. 7  Worden, 282.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

108  Custom, Common Law, and the Constitution as in Philisides’ fable, the political community exists before the creation of kings, whose powers are those which the people has bestowed on them. Kings, the appointees of the community, are also, in [their] view, its servants.8

In the Vindiciae, the upholding of custom became an important feature of the legitimate king, while its abrogation was a sign of tyranny. Languet and Du Plessis-Mornay argued, for example, that “it is imprinted in all of us by nature, so also has it by a long custom been approved by all nations, that it is not lawful for the king by the counsel of his own fancy and pleasure, to diminish or waste the public revenue”; those kings “who have run a contrary course, have . . . stood branded with the infamous title of a tyrant.”9 Turning to one of their historical examples, they reveal that the “true causes why Tarquinius was deposed, were because he altered the custom, whereby the king was obliged to advise with the senate on all weighty affairs.”10 Though, as continental thinkers, they likely were drawing upon the recognized category of customary law in Justinian’s Digest, Languet and DuPlessis-Mornay also confirm the relationship of custom and law that was central to English common law. For example, they insist that all ­monarchs have limited powers and that the laws of different countries dictate that the king has no right to alienate his kingdom’s lands. Before the latter was ratified as law, it was a custom, they explain, that “had obtained the vigour and effect of law.”11 All three men were friends of Sidney. Languet was one of Sidney’s mentors, guiding him (sometimes more than Sidney wished) through the rocky terrain of political life. In the Arcadia, Philisides credits Languet, “shepherd best,” with teaching him the politically allegorical poem “On Ister Banks” (255, ll. 15–21). He also praises Buchanan’s poetry in The Defense of Poesie, and members of Sidney’s circle encouraged his work.12 Du Plessis-Mornay maintained “a regular and ­frequent” correspondence with Sidney after his stay in England, and Sidney later translated Du Plessis-Mornay’s De La Verite de la Religion Chretienne.13 It is ­generally believed that their views profoundly influenced Sidney’s own, and the Arcadia’s representation of monarchy is evidence of this influence. But Sidney did not have to look far for a theory of government that circumscribed the power of the monarch. As we have seen, England had its own homegrown theories that did so by appealing to common law. In fact, the agreement between Euarchus and the Arcadians resonates with the English people’s insistence upon maintaining their own native laws and customs 8 Ibid. 9  P. Du Plessis-Mornay and H. Languet, A Defence of Liberty Against Tyrants: A Translation of the Vindiciae Contra Tyrannos by Junius Brutus (1689) (London: G.  Bell and Sons, Ltd., 1924), 162, emphasis mine. 10  Ibid., 202. 11  Ibid., 167. 12  Norbrook, 84. 13  On Du Plessis-Mornay and Sidney’s relationship, see Worden, 34, 53–5.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  109 in the aftermath of the Norman Conquest. Their “yielding” is figured as a kind of empowering act that draws them together, and Euarchus’s authority is qualified in much the same way that an English monarch’s is; he cannot breach their laws, customs, or liberties. The Arcadians’ oath echoes the “choice” the people of Kent offered to William the Conqueror after they had ambushed him, a story recounted by William Lambarde in the Perambulation of Kent (1570): “The commons of Kent (most noble Duke) are readie to offer thee, either peace, or warre, at thyne owne choyse, and election: peace, with their faithfull obedience, if thou wilt ­permit them to enjoy their ancient liberties.”14 By accepting these terms, William the Conqueror becomes no conqueror, but a limited monarch. This story was later retold by Raphael Holinshed in his Chronicles, which also describes the ­subsequent revolt of the Saxons against William the Conqueror’s attempts to impose new laws: the Saxons “would never cease to molest him in the recovery of their liberties,” so that he was forced to once again promise to “thenceforth observe and keep the good and ancient approved laws of the realm . . . ”15 Sidney would have been familiar not only with this history of the county with which his family was associated, but also with the range of chronicle historians who retold it in the context of the broader story of common law’s persistence. In a letter from May 1580 advising Edward Denny on the ideal course of study for a soldier, he writes: Then for the historyes them selves, gladly I would wish you shoold reed the Greek & Roman writers, for they were the wisest, and fullest of excellent ex­amples, both of discipline & strategems . . . [A]nd from thence to fall lower, to the particuler chronicles of eche country, as Paulus aemilius for France, Polidore for England, and soe of the rest. But because this might seem too longe, though in deed not soe longe, as a man woold thinke, my councell to you is even to begin with our English Cronicle, sett out by Hollinshead; which you shoold reed thorow till you came to Edward the Thirdes lyfe, then to take Froyssart, after him Anguerard of Monstrelett, written in old frenche, after him Philip de Commines, & then Guicciardian who reacheth almost to our time. And these will serve your turne for historicall matters.16

14 W. Lambarde, Perambulation of Kent (Bath: Adams and Dart, 1970), 20. 15 R. Holinshed, Holinshed’s Chronicles of England, Scotland, and Ireland (London: J. Dent, 1807), 306. This passage appears in the 1577 edition, and variations are included in the 1586 edition. See ibid., 747–8: The common law was “so much esteemed of the Englishmen, that after the conquest, when the Normans oftentimes went about to abrogate the same there chanced no small mutinies and rebellions for reteining of those lawes.” See also Greenberg, The Radical Face of the Ancient Constitution: St. Edward’s “Laws” in Early Modern Political Thought (Cambridge: Cambridge University Press, 2001), 100. 16 P. Sidney, The Correspondence of Sir Philip Sidney, Vol. 1, ed. R. Kuin (Oxford: Oxford University Press, 2012), 983–4.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

110  Custom, Common Law, and the Constitution Although he focuses on the histories’ usefulness for political stratagem, Sidney nonetheless demonstrates his familiarity not only with classical histories but also vernacular ones, including Holinshed. As a courtier and politician committed to the Protestant cause, Sidney would have been particularly interested in stories about the Conquest that appear in histories like these. The nature of the relationship between the monarch and the people that, as we have seen, Fortescue and others sought to articulate in the fifteenth and early sixteenth centuries took on new life and urgency in the wake of the Protestant Reformation.17 Janelle Greenberg and others have demonstrated that Protestant writers participated in the development of the theory of the ancient constitution.18 Thus, Thomas Smith in De Republica Anglorum (1583) articulated a theory of “mixed monarchy” and insisted upon the absolute powers of parliament, ­especially to limit the monarch and to represent the “everie mans consent.”19 Even further, according to Greenberg, John Foxe recognized in his Actes and Monuments that in order to “ground[] the English church firmly in the nation’s history,” he had to “construct[] a narrative that was thoroughly ancient constitutionalist as well as Protestant in nature.” The origins of both had to be located deep in the past.20 As was the case with Buchanan and Languet and Du Plessis-Mornay, Foxe ­constructed this narrative in service of a larger argument that justified rebellion against Catholic monarchs. In the 1570 edition of Actes and Monuments, he reinterpreted St. Edward’s laws, an early compilation of English law sometimes referred to as common law, so that they justified armed resistance against a king who failed in his duties.21 He quotes chapter seventeen of St. Edward’s Laws (­rendering the Latin text into English for the first time), which describes how William the Conqueror took the same coronation oath that was used in Foxe’s day, wherein he “did swear and practice the same good laws of Edward, for the 17  On one of those figure’s religious views, see I.  Williams, “Christopher St. German: Religion, Conscience, and Law in Reformation England,” in Great Christian Jurists in English History, eds. M.  Hill and R.H.  Helmholz (Cambridge: Cambridge University Press, 2017), 72–4. Although St. German’s books were identified with Protestant “heretics” such as Tyndale and Luther during the Pilgrimage of Grace, in many respects, he still followed Catholic orthodoxy. By 1537, however, his views could be considered heterodox (72). Nevertheless, his writing became crucial to the Henrician Reform. Ernest William Talbot argues that Sidney was influenced by this work, and I concur with his reminder that Sidney was “an educated Englishman, aware of his country’s ‘ancient customs and usage’ ” and “alive to political ideas embodied in the heritage of the late sixteenth century.” E.W. Talbot, The Problem of Order: Elizabethan Commonplaces and an Example of Shakespeare’s Art (Chapel Hill: The University of North Carolina Press, 1962), 93.  18  See, for example, Q. Skinner, The Foundations of Modern Political Thought, Vol. 2 (Cambridge: Cambridge University Press, 1978), 189–238. 19 T.  Smith, De Republica Anglorum, ed. M.  Dewar (Cambridge: Cambridge University Press, 2009), 79. De Republica Anglorum was written between 1562 and 1565 and circulated in manuscript before its 1583 publication. For this history, see Mary Dewar’s introduction to De Republica Anglorum. 20  Greenberg, 94–5. 21  For early modern references to St. Edward’s Law as common law, see Chapter 5, section I. This paragraph draws upon Greenberg’s discussion on 94–8.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  111 common laws of this realm” and emphasized reciprocity between ruler and ruled.22 When William the Conqueror later attempted to abrogate them, in Foxe’s translation, he  met with “great commotions and rebellions” and was “compelled through the clamor of the people” to return to common law.23 Greenberg suggests that “Foxe intended his readers to connect Saxon resistance in general and St. Edward’s laws in particular with resistance against unjust and ungodly rulers such as Mary Queen of Scots.”24 Foxe believed that those who did not practice Protestantism had also “fallen from . . . the ancient law” and “thereby deposed themselves.”25 As a result, he also advanced an argument about the limited powers of any English monarch, who ultimately depended upon common law for his or her authority—or, at least, could not do away with it. Unlike Foxe, other Protestant writers addressed the religion of their English monarchs more directly. In what was in retrospect an ill-conceived strategy, the Protestant reformer John Knox urged his fellow Englishmen to depose the Catholic Mary Tudor on the basis of her gender in his First Blast of the Trumpte against the Monstrous Regiment of Women (1558). John Aylmer, who had considerably better luck with timing, published a response to Knox’s pamphlet entitled An Harborowe for Faithfull and Trewe Subjects (1559). In it, he refuted all of Knox’s biblically derived reasons for the unfitness of women for rule. But, as ­fem­in­ist scholars have noted, he engaged in his own misogynistic logic.26 The accession of the Protestant Queen Elizabeth to the throne turned out to be an occasion for meditations on the limits of monarchy. “Better in England then ­anywhere,” Aylmer reassures his ­readers, since “[t]he regiment of Englande is not a mere Monarchie, as some for lacke of consideracion thinke, nor a meere Oligarchie, nor Democratie, but a rule of mixte of all these, wherein ech one of these haue or should haue like authoritie.”27 He compares parliament, wherein the monarch, noblemen, and common people are represented, to the Lacedemonian system, which dictated that neither the ­senate nor the commons on their own could “breake lawes, order for warre or peax, or do any thing.”28 “It is not in England so dangerous a matter,” Aylmer concludes, “to haue a woman ruler, as men take it to be. For first it is not she that ruleth but the laws . . . if to be short she wer a mere monark, and not a mixte ruler, you might peraduenture make me to feare the matter the more, and the les to defend the cause.”29 In seeking to assuage readers’ fears about a female ruler, he makes a strong case for England as a mixed rather than absolute monarchy. As part 22  Qtd. in Greenberg, 96. 23  Ibid., 97. 24  Greenberg, 98. 25  Qtd. in Greenberg, 95. 26  See J. Vanhoutte, “Queen and Country? Female Monarchs and Feminized Nations in Elizabethan Political Pamphlets,” in Elizabeth I: Always Her Own Free Woman, eds. C. Levin, J. Eldridge Carney, and D. Barrett Graves (Aldershot: Ashgate, 2003), 11, 18n.20. 27 J.  Aylmer, An Harborowe for Faithfull and Trewe Subiectes agaynst the Late Blowne Blaste, Concerninge the Gouernment of Wemen.” (Strasborowe: John Day, 1559), H2r–v . 28  Ibid., H2v. 29  Ibid., H3v–H4r.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

112  Custom, Common Law, and the Constitution of this case, Aylmer calls attention to the power of custom to confer authority upon the ruler: he warns that a female m ­ onarch such as Elizabeth I, having been “­confirmed by custome, and ratefied by common consent of all orders in the Realme,” cannot be deprived of her “enheritaunce.”30 The political crisis that took place during 1578–9 marriage negotiations between Elizabeth and the Duke of Anjou brought religion and gender together even more conspicuously. Protestants feared that England’s “mixed” monarchy would be threatened by Catholic absolutism. Despite Languet and Du PlessisMornay’s protestations to the contrary, France was already aligned in English minds with absolutism. Fortescue had singled it out as a dominium regale, where, because the commons dare not rebel, the King continues to impose taxes upon them so that they “are so impoverished and destroyed, that they can barely live.”31 In the mid-sixteenth century, this difference was reinscribed as a consequence of religion. Opponents of the match believed that the new French monarch would introduce tyrannical rule onto English soil. Even though advocates of the match protested that the Duke of Anjou would be bound by the country’s laws and ­customs, as Phillip II had been as Mary Tudor’s husband, many members of court and of the public worried that the Duke would refuse to adhere to these terms once he ascended to the throne.32 Sidney himself spoke against the match, sending the Queen a letter that began by exhorting her to heed her subjects’ desires. He warned her that she risked the danger of “contempt” in her subjects. Her “chief, if not . . . sole strength,” he told her, would be “galled, if not aliened” should she “take to husband a Frenchman, and a Papist.”33 “[T]he very common people,” Sidney continued, “well know this: that he is the son of the Jezebel of our age; that his brother made oblation of his own sister’s marriage, the easier to make massacres of all the sexes: that he himself, contrary to his promise, and against all gratefulness, having had his liberty and principal estates chiefly by the Huguenots’ means, did sack La Charité, and utterly spoil Issoire with fire and sword.”34 He goes on to argue that this “heir apparent” would not be content to “come to be the second person, where he shall pretend no way sovereignty,” and Elizabeth would be made to “deliver him the

30  Ibid., B2r. 31 J. Fortescue, The Governance of England in On the Laws and Governance of England, ed. Shelley Lockwood (Cambridge: Cambridge University Press, 1997), 87–8; see also 49–51. 32  For an account of differing opinions regarding the match, see Worden, 98–102. Among those who opposed the match were Lord Burghley, Mildmay, and Sir Francis Knollys. John Stubbes wrote a popular pamphlet, The Discoverie of a Gaping Gulf (1579), which earned him a stay in the Tower of London. 33  P.  Sidney, “A Letter Written by Sir Philip Sidney to Queen Elizabeth, Touching Her Marriage with Monsieur” in The Miscellaneous Prose of Sir Philip Sidney, eds. J. van Dorsten and K. DuncanJones (Oxford: Oxford University Press, 1973), 47–8. 34  Sidney, “A Letter Written by Sir Philip Sidney to Queen Elizabeth,” 48. Sidney here refers to the St. Bartholomew’s Day Massacre.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  113 keys to the kingdom.”35 Ultimately, their marriage would only lead to the encroachment of foreign power and to “poison of division” in England.36 In the context of these letters and the discussions of limited monarchy more broadly, Euarchus, in a Protestant legal vein, as an ideal constitutionalist ruler could be understood as a model to and for Elizabeth  I.37 Philanax relates the Arcadians’ oath to Euarchus, informing him that “[t]hey lay themselves open to you” and “only reserve the right to Basilius’s blood, the manner to the ancient prescribing of their laws” (361). Though this seems like a somewhat limited ­version of the oath, he also makes Euarchus aware that, should he accept the ­pos­ition, “the particularities, both of their statutes and demands, you shall presently after understand” (361). When Euarchus greets the Arcadians, he more fully emphasizes consent and adherence to custom: “ ‘I understand,’ said he, ‘faithful Arcadians, by my lord Philanax that you have with one consent chosen me to be the judge of the late evils happened, orderer of the present disorders, and finally protector of this country till therein it be seen what the customs of Arcadia require’ ” (364–5). He vows to “see the past evils duly punished” by following the laws of “Greece, and particularly of Arcadia” (365). This represents a stark ­contrast to Timautus, who meets his political downfall when he tries to free the Queen Gynecia without first obtaining the people’s “consent” (354). Euarchus takes on the name “protector” in order to disallow any claims upon Arcadia by his ancestors, but his promise to maintain Arcadian customs is perhaps more persuasive (365). Perhaps it is the implied acceptance of the oath they had made in Philanax’s presence that leads the Arcadians to treat him “as if [he] had been born of the princely Arcadian blood” (364). Like a good Bractonian, Euarchus treats customs as law. He takes seriously those that are relevant to his protectorate, that the trial must be performed quickly and that the deceased must be present throughout, “held in sight, though covered with black velvet” until the verdict is rendered (366). After making his promises to the Arcadians, he reiterates his commitment to their practices: “because your ­customs require such haste, I will no longer delay it than till tomorrow, as soon as the sun shall give us fit opportunity” (366). The narrator registers the confluence of custom and law when he contemplates the reason for the presence of the deceased at the trial. He first refers to it as a custom or “manner,” but later in the same ­sentence considers it a law, conjecturing that “whether the reason of the law were to show the more grateful love to their prince, or by that spectacle the more to remember the judge of his duty” (366; emphasis mine). This slippage signifies differently than it had in Utopia. Whereas in the latter text it implied the ­

35  Ibid., 49–50. 36  Ibid., 50. 37  I agree with Lockey that not only Basilius, but also Euarchus should be understood as a parallel for Elizabeth I (52). Lockey reads Arcadia as standing in for the foreign realms that Elizabeth might one day rule, but here I consider it as in a similar position to England itself.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

114  Custom, Common Law, and the Constitution instability  that enables conquerors to impose custom as law, in the Arcadia it becomes a way of gesturing toward the respect a ruler accords to native prac­tices.38 The Arcadian customs, like English custom, are imbued with a specifically legal status and are understood to be integral parts of the legal system to which Euarchus submits himself. During the trial, Euarchus continues to uphold the tenet that monarchs should not consider themselves above custom, but rather subject to it. In one of the princes’ less heroic attempts to absolve themselves of their purported crimes, they inform Euarchus that they themselves are monarchs, Timopyrus “despota of Lycia” and Palladius “prince of Caria,” and demand “to know by what authority they could judge of them” (385). Taking up a dubious line of defense, the princes ef­fect­ ive­ly claim to be Asiatic tyrants.39 They assert that not only are they “foreigners, and so not born under [Arcadian] law, but absolute princes, and therefore not to be touched by laws” (385). Euarchus promptly rejects this logic, explaining that Arcadian laws “have their force upon any were found in Arcadia, since strangers have scope to know the customs of a country before they put themselves in it, and when they once are entered, they must know that what by many was made must not for one be broken” (385). Here, too, the “custom of the country” is equated with law, and, like English custom, is imagined to have a ­collective source, to have been made “by many.” In response to the argument that they are princes, he simply reaffirms, “if they had offended . . . against the peculiar ordinances of the province, those peculiar ordinances were to lay hold of them” (385).40 Their status as princes, that is, does not exempt them from the customs of the country. Euarchus recapitulates this jurisdictional philosophy in his judgment speech. “This weighty matter . . . ” he tells the Arcadians, “doth at the first consideration yield two important doubts,” the first of which is that the defendants “give themselves out for princes absolute” (403).41 At first he considers the possibility that “here they be no princes” because a prince is a prince only to his own subjects, but then reminds himself that “the universal civility, the law of nations . . . hath ever required public persons should be of all parties especially regarded” (403–4). Despite being forced to recognize their status of princes, however, Euarchus ­ultimately maintains that the dictum “they that will receive the benefit of a

38  See Chapter 2, section III. 39  Located across the Bosporus, Lycia and Caria were alternately part of the Persian, Athenian, and Macedonian Empires, and were later Roman provinces. 40  Briggs also notes the constitutionalist leanings of Euarchus in this speech (157–9). W.D. Briggs, “Political Ideas in Sidney’s Arcadia,” Studies in Philology 28.2 (1931), 137–61. 41 The second doubt is “how to judge well.” In answer to this, Euarchus claims that it “must undoubtedly be done, not by a free discourse of reason and skill of philosophy, but must be tied to the laws of Greece and municipal statutes of this dukedom,” again affirming his intention to adhere to the “peculiar ordinances” of Arcadia (350). Strikingly, Euarchus claims that “princes absolute” is a “sacred name,” but he may be simply referring to the broader definition of “absolute” as not subject to any external authority, which Sidney uses to describe Elizabeth in his “Letter.”

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  115 c­ ustom must not be the first to break it” applies equally to princes: “If a prince do acts of hostility without denouncing war, if he break his oath of amity, or innumerable such other things contrary to the law of arms, he must take heed how he fall into their hands whom he so wrongeth, for then is courtesy the best custom he can claim” (404).42 Interestingly, Euarchus here turns to the requirement that princes obey the law of nations in order to articulate their necessary obedience to the particular customs of the land. What applies to foreign princes can and should be extended easily to native ones. If even a foreign monarch must obey native ­customs, then all the more so must a nation’s own king. Euarchus’s faithful adherence to custom transforms the problem of political change into a successful negotiation of authority between an erstwhile ruler and that of his subjects. He situates it in a particular legal context that was central to his identity as both Protestant and Englishman by placing custom at the center of his vision of the “good ruler,” as Euarchus’s name is often translated.

II.  Custom as “Pompous Ceremon[y]” Fulke Greville, Sidney’s good friend, offers a lengthy interpretation of Sidney’s objection to Elizabeth’s potential marriage in A Dedication to Sir Philip Sidney (c. 1612), enumerating the ways in which Sidney foresaw that the Duke of Anjou “would have endeavoured to steal change of religion into her kingdom.”43 Many of Anjou’s alleged strategies entail the metamorphosis of “our moderate form of monarchy into a precipitate absoluteness,” since the Duke of Anjou doubtless would “lift monarchy above her ancient legal circles” and “bring the English ­people to the poverty of the French peasants.”44 Greville reports that Sidney an­tici­pated that the “public decrying of our ancient customs” would comprise a crucial first step in this transformation.45 In many ways, Greville, writing around thirty years after the fact, cannot be read as an accurate reflection of Sidney’s thoughts at the time. As John Gouws points out, he was at least as concerned with critiquing James I’s court as he was with recording Sidney’s role in Elizabethan politics.46 Worden observes that Greville’s emphasis on the threat of royal authority encroaching on that of parliament’s was largely an issue in Jacobean politics 42  This aspect of the trial is usually interpreted as a reference to Mary Queen of Scots, who made the same argument as the princes when called to trial in England and received the same response. See, for example, Worden, 180–1. It is interesting to note that Euarchus seems not to feel entirely comfortable with his own argument, since in the end he decides that the princes should be tried as private persons because when they “entered into domestical services,” they “not only left to do like princes but to be like princes . . . and so by making themselves private deprived themselves of respect due to their public calling” (349). 43 F. Greville, A Dedication to Sidney, in The Prose Works of Fulke Greville, Lord Brooke, ed. J. Gouws (Oxford: Clarendon Press, 1986), 31. 44  Ibid., 32. 45  Ibid., 31. 46  Ibid., xvi.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

116  Custom, Common Law, and the Constitution and of little relevance to Sidney’s own anxieties.47 Yet, as we have seen, the idea of “ancient customs” plays a crucial role in Sidney’s imagination of a commonwealth. Thus, Greville’s comments are more accurate than critics have acknowledged. Sidney worried, according to Greville, that the Duke’s “absoluteness” was “the more dangerous to their subjects’ freedom, because they bring these changes to pass (as the French say) under the safe conduct of our earth-eyed Common Law.”48 Ironically, that which is meant to serve as the antidote to absolutism threatens to become its instrument. That is, rather than protect the people, ­common law would become a kind of cover for the introduction of changes that would run contrary to the people’s desires. While this may seem precisely the opposite of the Arcadian case, where so much faith is placed in custom, it also resonates with it. Another understanding of custom makes a brief but salient appearance at the very start of the trial. Having strongly linked custom and law in the pages preceding the trial, Sidney now ­disarticulates them in a particularly devastating manner: But in this sort was the judgment ordered: as soon as the morning had taken a full possession of the element, Euarchus called unto him Philanax, and willed him to draw out into the midst of the green (before the chief lodge) the throne of judgment seat in which Basilius was wont to sit, and according to their customs was ever carried with the prince. For Euarchus did wisely consider the people to be naturally taken with exterior shows far more than with inward consideration of the material points; and therefore in this new entry into so entangled a matter he would leave nothing which might be either an armour or ornament unto him; and in these pompous ceremonies he well knew a secret of government much to consist.  (374–5)

Contrary to Euarchus’s—and the narrator’s—earlier assertion that Arcadian ­customs, including the one singled out here, are law, in this passage custom is spe­ cif­ic­al­ly contrasted with law. It is demoted to the status of “exterior show” and “pompous ceremon[y],” extraneous to the law’s “material points.” Even more damning to custom’s authority, Euarchus recognizes that he can deploy custom in order to control the Arcadians. The particular custom of the judgment throne becomes a means of investing the monarch with an unassailable authority. Sidney describes custom as a “secret of government,” rather than a tool of the governed. In this moment, Euarchus reverses the nature of custom, that is, its rootedness in and construction of a commons, and reinscribes it as the private knowledge of a single ruler. That Euarchus professes to the crowd his commitment to a constitutionalist conception of custom, but acknowledges only to himself custom’s power to 47  Worden, 242.

48  Greville, 31.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  117 manipulate, may even call into question the sincerity of his earlier political vows. Instead of preserving and enshrining the people’s rights, custom acts as a ruler’s “armour or ornament,” intended to seduce the people, noblemen and commoner alike, into submission. This passage, and the long account of the trial that follows, indicate that Euarchus’s use of custom will do just that. Indeed, Sidney describes how the people snap to attention as soon as Euarchus sits on the judgment throne: “the whole people commanded to keep an orderly silence of each side, which was duly observed of them, partly for the desire they had to see a good conclusion of these matters, and partly stricken with admiration as well at the grave and princely presence of Euarchus as at the greatness of the cause which was then to come in question” (375). What are we to make of this abrupt shift in register? In suggesting that custom can become the monarch’s controlling instrument, Sidney complicates the relationship between monarch and custom so that the latter derives its authority from the former. Extending David Norbrook’s observation with respect to the fes­tiv­ities that take place throughout the first books of the Arcadia, I would like to suggest that this might be another moment wherein Sidney critiques “the aestheticization of politics.”49 More specifically, this passage demonstrates Sidney’s keen awareness that custom possesses the potential to slide into ritual and to be assumed as such by those in positions of power. Perhaps critics who focus on the Anjou match as a contemporary context for the Arcadia have not taken Euarchus into consideration because he appears to be the only sound voice of justice—even if it is a flawed ­justice—and governance in the Arcadia.50 But Euarchus’s use of custom resounds with the interpretation of Sidney’s own fears that Fulke Greville was to offer, that not only would the absolutist French monarch overturn ancient custom, but he would use common law as a ruse to establish his own authority. Euarchus’s dual understanding of custom makes it difficult to interpret the trial scene that follows, which at once suggests that Euarchus has the people in thrall to him and that he is staging a drama of which he is not fully in control. This ambiguity is manifested through the disconnect between Euarchus, who seeks to uphold the “rigour of the law,” and the people, who repeatedly express compassion for the defendants to whom it would be applied. As it turns out, spectacle is not the ­purview solely of the monarch. Euarchus’s apparent mastery of “exterior show” is immediately undercut when the queen and the princes are brought out to plead 49  Norbrook, 87. 50  Elizabeth Dipple first questioned the traditional reading of Euarchus as a paragon of justice in E.  Dipple, “ ‘Unjust Justice’ in the Old Arcadia,” Studies in English Literature 10.1 (1970), 83–100. Among other things, she points to the over-rigorousness of Euarchus’s application of the law and to the way he is thereby aligned with the prosecutor, Philanax, who has thoroughly misunderstood what has transpired between the princes and the Arcadian royal family. Critics have continued to address the status of Euarchus’s judgment. For a more recent reading of the “singular rigorism” of Eurachus’s harsh verdict that focuses on his use of sententiae, see J. Dolven, Scenes of Instruction in Renaissance Romance (Chicago: The University of Chicago Press, 2007), 123–5.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

118  Custom, Common Law, and the Constitution their case. The abject Gynecia, wearing “a long cloak . . . of russet coarse cloth, with a poor felt hat,” evokes “great . . . compassion,” while the princes m ­ anage to elicit the same reaction by opposite means, dressing themselves ostentatiously in outfits and jewels that emphasize their beautiful forms (376). Tellingly, Sidney explains their “divers[e]” methods of “stirring . . . compassion” in political terms: they can “conquer the expectation of the lookers with an extraordinary v­ irtue” (377). Euarchus’s successful management of this compassion seems to indicate that his use of custom can contain any potential conflicts with those whom he has agreed to rule. The people are brought together by their compassion for the queen’s, princess’s and princes’ situation; “with an united murmur,” they “­confirmed” Pyrocles’s demand to hear what will become of him, and after Gynecia’s confession to the murder of her husband, Sidney recounts that “a great while it was before anybody could be heard speak, the whole people concurring in a l­ amentable cry” (380, 382). But they never voice opposition to Euarchus’s stern judgments; their murmurs and cries always eventually give way to a “silent and, as it were, astonished attention” as they either wait to hear or respond to his sentences (383–403). This latter adjective, “astonished,” not only suggests fear, but also robs the Arcadians of all agency as they are deprived of sensation and, in effect, turned to stone.51 This is not to say that Euarchus becomes a tyrant. Sidney reminds us mid-trial that Euarchus is still “using to himself no other name but protector of Arcadia” (381). He also consults “with the principal men of the country” and “demand[s] their allowance” before issuing judgment (383). But it is revealing that Sidney feels it necessary to insert this reminder. Moreover, the qualification “to himself ” could indicate the difference between how he regards himself and how he is acting. The use of the verb “demand” to characterize his appeal only underscores the ambiguous nature of his rulership. At the same time, though, Euarchus seems to be playing a role that has been scripted for him, one that is enabled by those Arcadian customs “made by many.” Their customs seem specifically designed to elicit both reverence for authority and compassion. Euarchus is doing just what is intended in donning his black robe, sitting in the throne of judgment, and meting out punishment according to the rigorous laws. And the people are doing just what they are intended to do, with their sympathetic murmurs and cries elicited by the presence of the defendants and then quelled by the presence of the cool-headed monarch. Ultimately, Euarchus still submits to their customs. Sidney builds the uncertainty of how to assign authority to these customs into the narrative: to return to a passage I cited earlier, the narrator never quite settles on one interpretation of the people’s initial silence, offering three instead—their desire “to see a good conclusion of these matters,” their admiration of “the grave and princely presence of Euarchus,” and

51  “astonished, adj,” Oxford English Dictionary, def. 1.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  119 “the greatness of the cause which was then to come in question”—and thus refusing to place power entirely with Euarchus (375). Custom provides the backdrop against which disagreements between ruler and ruled can take place without ­profoundly disrupting the commonwealth, an issue with which Sidney, who clashed with Elizabeth over her desired match, would have been particularly ­concerned. In the end, though, it is nearly impossible to determine whether, through custom, Euarchus is containing the people or being contained by them. In this way, Sidney recognizes the ambiguous nature of authority that may always inhere in the ­concept of custom. If, as Victoria Kahn has shown, romances in the seventeenth century became “vehicle[s] of the ultimate reconciliation of coercion and consent,” at this earlier moment, Sidney points to the difficulties of doing so.52

III. The Old Arcadia’s Narrative Aporia Despite Sidney’s claim in his letter to his sister that the Arcadia is an “idle work,” a “trifle” that has been “triflingly handled” (3), it has long been recognized as an important locus for Sidney’s contemplation of his own literary authority. Recently critics have reevaluated the famous mid-sentence ending of the vastly expanded and intensively revised 1593 New Arcadia as key to understanding the nature of this authority. In particular, Gavin Alexander has traced the New Arcadia’s different textual absences, especially the use of the figure of aposiopesis, the whole thought delivered incompletely, to argue that it indicates Sidney’s c­ oncern with the hermeneutic gap between writer and reader.53 Although Alexander recognizes that aposiopesis appears in the Old Arcadia as well, he concludes that this text is characterized by a movement toward completion and neat endings, while the New Arcadia “betrays a growing hesitancy towards consummation, a suspicion of reflective mutuality, tidy circles, and closed dialogue.”54 Yet, I argue that, in crucial ways, the Old Arcadia is already structured by ­incompleteness and occlusion. In this section, I will focus on a different kind of incompletion in Sidney’s writing, moments of narrative aporia, or doubt. The narrator makes use of this rhetorical figure to obscure the reasons for a character’s or group of characters’ actions; in so doing, he at once expresses a lack of narrative mastery and renders aspects of the romance beyond the reader’s grasp. This strategy casts doubt upon the ability to ascribe reasons or motivations of characters, and thus can be considered a use of

52 V. Kahn, Wayward Contracts: The Crisis of Political Obligation in England, 1640–1674 (Princeton: Princeton University Press, 2004), 178. 53 G.  Alexander, Writing After Sidney: The Literary Response to Sir Philip Sidney, 1586–1640 (Oxford: Oxford University Press, 2006), 1–55. See also the discussion of ekphrasis in the New Arcadia in E. Bearden, The Emblematics of the Self: Ekphrasis and Identity in Renaissance Imitations of Greek Romance (Toronto: University of Toronto Press, 2012), 72. 54 Alexander, Writing After Sidney, 27, 35, 45.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

120  Custom, Common Law, and the Constitution the kind of rhetorical training lawyers undergo to create “pre-novelistic prose ­fiction,” as Lorna Hutson suggests about other aspects of the text.55 But understood in the legal framework I have discussed already, these narrative aporia help us understand Sidney’s notion of literary authority as resolutely political, and as a formal response to the difficulties of sustaining custom’s constitutionalist authority. In keeping with the genre of the romance, the Arcadia is characterized by its digressions, dilations, and amplifications. At one point or another, Sidney makes use of almost all the methods for copia that Erasmus recommends. Consequently, Abraham Fraunce drew upon Sidney’s work for examples of rhetorical figures to set alongside those drawn from classical and continental writers, while John Hoskyns could illustrate all the figures that he treated in Direction for Speech and Stile (c. 1599) from the Arcadia alone.56 But one narrative technique seems not to fit any of these methods, and, even as it contributes to the textual abundance of the Arcadia, seems to work at cross-purposes with copia’s aims. That is, often Sidney’s narrator takes on a speculative tone, multiplying the reasons why something may have occurred or why a character has experienced a specific emotion. We have already seen an example of this earlier, when the narrator ascribes ­several explanations for the crowd’s silence before the trial. But moments like this punctuate the narrative. For example, narrative uncertainty pervades the description of the more cool-headed Musidorus’s falling in love with the princess Pamela. The narrator describes the “sudden violence of love” that Musidorus experiences upon seeing Pamela for the first time: Whether indeed it were that this strange power would be bravely revenged of him for the bitter words he had used, or that his very resisting made the wound the crueller . . . or rather that the continual healthfulness of his mind made this sudden ill the more curable (as the soundest bodies, once infected, are most mortally endangered); but howsoever the cause was, such was the effect.  (41)

The reasons given for the sudden strength of his love for Pamela each signify quite differently. The first figures his love as a kind of Cupid’s revenge since, iron­ic­al­ly, it comes on the heels of his admonition of his friend Pyrocles for falling so irrevocably in love with Pamela’s sister Philoclea—“O sweet Pyrocles, how art thou bewitched! Where is thy virtue? Where is the use of thy reason?” (40). The second, by characterizing this love as one he has resisted, makes his story in the pages that follow of a different tenor than that of his friend who had succumbed so readily and easily to passion. It might leave us with the sense that 55 L. Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford: Oxford University Press, 2007), 133. 56 A.  Fraunce, The Arcadian Rhetorike, or The Præcepts of Rhetorike Made Plaine by Examples (London: Thomas Orwin, 1588); J.  Hoskyns, Direction for Speech and Stile (British Library MS Harleian 4604).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  121 Musidorus is an unwilling participant in the subsequent drama. The third offers insight into his character, claiming that his very “healthfulness of mind” has made him vul­ner­able, and this proves true of him when he is so overcome with desire that he almost rapes Pamela. Each reason emphasizes something different about Musidorus’s love and has different implications for how to read the misfortunes that later befall him. Other moments of multiplicity work in similar ways, offering sometimes vastly different interpretations of the same event. The narrator explains why the Arcadian rebels decide not to kill Pamela and Musidorus when they find them in the forest: As for the killing, already they having answered themselves that that was a way to make them citizens of the woods for ever, they did in fine conclude they would return them back again to the duke, which they did not doubt would be cause of a great reward . . . Thus having, either by fortune, or the force of these two lovers’ inward working virtue, settled their cruel hearts to this gentler course, they . . . returned towards the lodge.  (310)

Having first given us a strategic reason why the rebels chose not to kill Pamela and Musidorus—to kill them would confine the rebels to the woods forever and to bring them home might result in a “great reward”—the narrator then suggests two other possibilities for the prince and princess’s escape from death: fortune or virtue. While the former suggests that they had no role to play in their own salvation, the latter suggests that they were central to it. These two options also offer very different understandings of how rebellions are defused, either by chance or because of the noble characteristics of those being rebelled against. After they are safely returned to Basilius’s lodge, Musidorus bemoans the fact that he could not protect Pamela from danger, and in response to his speech, Pamela bestows a kiss on him for the first time, and here too the narrator offers us two options, that this kiss was “command[ed]” either by love or by a “spark of nobleness to descend in most favour to one when he is lowest in affliction” (311). We are left to wonder whether the kiss is borne of affection or pity. In each instance, a singular understanding of a character and his or her fate is undone. In rhetorical terms, rather than each reason supporting and building upon the last and thus strengthening the “argument” about the character that the narrator may be seeking to advance— as methods of copia are intended to do—they come into conflict with one an­other.57 In this way, Sidney recalls More’s ironic use of the rhetorical figure of the proverb, which rather than advancing the text’s argument, undermines it.

57  Here I do not intend to ascribe an argument to the whole of Arcadia. Rather, had the narrator chosen one explanation and then built upon it, it would have the effect of convincing the reader of a singular sense of a character and his fate. By offering multiple reasons, Sidney undoes this understanding.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

122  Custom, Common Law, and the Constitution Has Sidney’s narrator, then, fallen prey to the excesses of copia, to the “pil[ing] up a meaningless heap of words and expressions without any discrimination” that simply “obscure” his subject, as Erasmus describes the abuse of copia?58 Certainly, as Jeff Dolven has amply demonstrated, there is more than a hint of parody to the use of rhetorical strategies in the Arcadia.59 But we might also describe this strange copia as aporia, and thus ascribe to it a political dimension. Puttenham terms aporia “the doubtful,” explaining that “oftentimes we will seeme to cast ­perils, and make doubt of things when by a plaine manner of speech wee might affirme or deny him.” His example is a short poem about infanticide: Whether the cruell mother were more to blame, Or the shrewd childe come of so curst a dame: Or whether some smatch of the fathers blood, Whose kinne were neuer kinde, nor neuer good. Mooued her thereto, &c.60

Richard Sherry provides a more politically oriented example of aporia or, in Latin, dubitatio: “Much hurted the commonwealth at that tyme, whether I shuld saye the folyshenesse of the consulles, or the malyce, or bothe, I can not tell.”61 Henry Peacham similarly draws upon Cicero’s first speech against Verres: “Whether he tooke them from his fellowes more impudently: gaue them to a whore more filthily: placed them from the Romayne people more wickedly: or altered them more presumptuously, I cannot well expresse.”62 With this figure, the orator expresses uncertainty, a lack of mastery, and so cedes some of his control. Its use in the Old Arcadia has the similar effect of stripping the narrator of (at least some of) his authority. Put another way, the narrator refuses to assume complete authority for his tale. Noticing this same narrative pattern, Joel Altman has remarked, “such continual questioning virtually asks the reader to share the burden of interpreting the story.”63 Altman argues that this is a result of Sidney’s humanist rhetorical training. To this I would add that this ­narrative aporia should be interpreted within the framework of the specifically legal foundation of this rhetorical training. As Lorna Hutson has shown, humanist training’s roots in classical legal culture were not shed when Renaissance ­writers used their educations to compose fiction. Hutson’s focus is on later dramatists like Shakespeare, but she also convincingly argues

58 D. Erasmus, De Copia: In The Collected Works of Erasmus, Vol. 24, trans. B.I. Knotts (Toronto: University of Toronto Press, 1978), 295. 59  See Dolven, 99–134. 60  Puttenham, 189. 61 R. Sherry, A Treatise of Schemes and Tropes (London: John Day, 1550), D3v. 62 H. Peacham, The Garden of Eloquence (1577) (Menston: Scolar Press, 1971), M1v–M2r. 63 J. Altman, The Tudor Play of Mind: Rhetorical Inquiry and the Development of Elizabethan Drama (Berkeley: University of California Press, 1978), 96.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  123 that the Old Arcadia should be considered one of their important models.64 Philanax’s speech in the trial scene, for example, provides a masterful example of Ciceronian forensic ­oratory, and specifically of narratio, since it lays out for Euarchus the probable and likely way the events leading up to Basilius’s alleged murder transpired.65 Philanax claims to present “the sum of this miserable fact” (387), to tell “a short and simple story” (388).66 He convincingly and creditably constructs a story about how Pyrocles insinuated himself into Basilius’s household by disguising himself as a woman in order to murder Basilius and, presumably, overthrow the country (387–9). But, as Hutson further argues, Sidney does not simply transplant forensic rhetoric into the romance. Rather, he combines it with “amorous intrigue” to unsettling effect, since Philanax’s narratio seems more credible than the events about which we have just read (“witnessed,” so to speak). Sidney’s “generic blending” makes us “realize acutely the fragile, pre­car­ ious bases of what we confidently thought was our ‘knowledge’ about other ­people’s actions and motives.”67 But we do not have to wait to the final act of the Old Arcadia for this unsettling of “knowledge” to occur, since, as we have seen, the narrator himself does much the same—and he takes it even further than the trial scene. Instead of offering multiple stories (the plot of the Old Arcadia vs. Philanax’s speech), some more likely, if less “factual,” than others, the narrator offers the reader equally probable sets of motivations, making motivation itself inaccessible. What are we to make, then, of this narrative aporia? On the one hand, it contributes to Hutson’s argument that the trial scene renders the Old Arcadia “pre-novelistic” by making characters opaque not only to each other but also to the reader.68 On the other hand, it is intimately related to Sidney’s political interests as they manifested themselves in the trial scene that I discussed earlier. In particular, aporia extends the text’s investment in the participatory form of politics championed by ancient constitutionalism to the form of the narrative itself. The reader is offered a choice by this nonauthoritative, and we might say anti-absolutist, narrator. Rather than being the singular source of authority, the narrator emphasizes instead multiple sources of meaning and authority. In keeping with the dictates of common law, the narrator of the Arcadia refuses to rule upon its own meaning without first convening the parliament of its readers.69

64 Hutson, The Invention of Suspicion, 131. 65  Ibid., 132. Narratio will be discussed in detail in Chapter 6. 66 Ibid. 67  Ibid., 133. 68  Ibid., 134. 69  Susanne Woods argues similarly with regard to the proliferating content of the new Arcadia, which prevents us from defining “the author’s stance in relation to current political issues, or . . . to larger philosophical notions of freedom and tyranny.” This copia of matter creates an “elective poetics” that provides “not a directive but a set of directions.” S. Woods, “Freedom and Tyranny in the Arcadia,” in Sir Philip Sidney’s Achievements, eds. M.J.B Allen, D. Baker-Smith, and A. Kinney (New York: AMS Press, 1990), 174.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

124  Custom, Common Law, and the Constitution Yet, at the same time, this lack of mastery or knowledge is, of course, part of an orator’s masterful performance. In fact, one need not decide between the different choices offered; they are all at play, all equally valid. The point of the figure is ­precisely that it is impossible to choose, not only for the speaker, but also for his audience. The narrator of the Old Arcadia, perhaps much like Euarchus, by giving us a set of choices, circumscribes even as he enlarges. Instead, it is through the shepherds’ performative poetic practice that Sidney locates a form of literary authority that balances between the singular and the common.

IV.  The “Unthought-On Song:” Performance and Transcription in the Eclogues Aporia is not the only strategy Sidney uses to consider the nature of his own authority. He also exploits the absences that can be created by the written form. He reminds us over and again of the possibility that writing has not quite ac­cur­ ate­ly captured the events his narrator recounts, as though those events have a life outside of the text. Throughout the Old Arcadia, we are told that poems have been expanded or contracted to suit the written form. Perhaps most strikingly, though, these lacunae become the structuring condition of the eclogues in their entirety, as, in an often overlooked moment, the narrator draws our attention to the difference between the performance of the eclogues and their transcriptions. In this final section, I argue that this choice too takes on a resolutely political valence. With it, Sidney finally recuperates in the poetic realm the collapse between ­custom and performance that had occurred in Arcadia’s political one. With this political valence, the eclogues challenge how we periodize authorship. Specifically, Sidney constructs his authority by drawing on custom and its investment in repeated communal practices, rather than the performance or practice of an individual. Sidney’s narrator persistently calls attention to an otherwise invisible process of expansion and contraction. Pyrocles’s first of many anguished declarations of his love for Philoclea, for example, turns out to be a much shorter account than we had been led to believe. Following the poetic text, the narrator explains that he has been required to omit the nonverbal sounds that punctuated his verse: “I might entertain you, fair ladies, a great while, if I should make as many interruptions in the repeating as she did in the singing” (29).70 Here, Sidney claims to have excised the “abundance of sighs” that apparently fails to contribute to the poem’s meaning. The irony, of course, is that Sidney has just explained to his

70 Sidney here uses a feminine pronoun because Pyrocles is disguised as Cleophila, an Amazon woman.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  125 r­eaders something they never would have known about, or realized required explanation, had they not been told in the first place. Similarly, in the midst of describing an overwrought courtship scene between Pyrocles and Philoclea, the narrator reveals that he has engaged in another, similar editorial intervention. When Pyrocles first gazes upon Philoclea’s supine form, the narrator reports, “there came into his mind a song the shepherd Philisides had in his hearing sung of the beauties of his unkind mistress, which in Pyrocles’ judgement was fully accomplished in Philoclea” (238). This blazon runs 162 lines, making it the longest poem in the narrative, outside of the eclogues. Immediately after reproducing the poem, Sidney issues a reassurance to his readers, the “fair ladies,” who might think this delay unseemly or imagine that Pyrocles was unduly distracted at this crucial moment by his friend’s poem: “But do not think, fair ladies, his thoughts had such leisure as to run over so long a ditty; the only g­ eneral fancy of it came into his mind, fixed upon the sense of that sweet subject” (242). As it turns out, Sidney supplies us with the full text of a poem that Pyrocles has never recited, not even to himself. Thus, the narrator repeatedly informs the reader that a poetic performance that at first appears to be unmediated has been revisited and revised.71 Strikingly, this distinction between the poetic performance and its written transcription haunts the most celebrated poems of the old Arcadia, the eclogues themselves. The narrator explains at the start of the first set of poems that these are singing contests in which shepherds perform extemporaneously, displaying a poetic skill so remarkable that it requires multiple explanations, from the cultural to the economic: “Neither is it to be marvelled that they did so much excel other nations in that quality since, from their childhood, they were brought up unto it, and were not such base shepherds as we commonly make account of, but the very owners of the sheep themselves” (56). Following immediately after this, however, the narrator makes a striking, but often overlooked, qualification: And when they had practised the goodness of their wit in such sports, then was it their manner ever to have one who should write up the substance of that they said; whose pen, having more leisure than their tongues, might perchance polish a little the rudeness of an unthought-on song.  (56)

Here, Sidney introduces a scribe who records shepherds’ poetic performances. Instead of transcribing them as accurately as possible, however, the scribe writes up their “substance” on the spot and then at a later point “polishes” and refines them. This is a surprising claim, especially following the narrator’s description of the shepherds’ poetic skill. Why undercut it with this qualification?

71  For another example, see 108.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

126  Custom, Common Law, and the Constitution Katherine Duncan-Jones explains that this statement enables us “to accept as a record of extempore versification the highly intricate poems that compose the Arcadian eclogues.”72 Sidney’s qualification, in other words, renders the text more realistic, more reflective of the poetic performance. It becomes a way to maintain its status as a “record.” But one could also argue that it works in the opposite manner. The narrator’s statement calls attention to the materiality of the text we are reading and, in doing so, highlights the incommensurability of the eclogues’ ­performance and their transcription or codification. This has strange consequences for our experience of the poems themselves. Sidney makes us aware that the poems we will read are not the poems as they were (in the fictive realm) ­performed but rather revised versions of the shepherds’ rude “unthought-on songs.” As a result, we as readers can never gain access to the shepherds’ unwritten “ori­gin­al” songs. Sidney purposefully occludes the original moment of poetic production, or at least the fantasy of one. Instead, we are forced to inhabit a dual temporality, that of performance and of its subsequent codification. At other moments when Sidney notes a difference between the performance of a poem by a character and the material artifact of the text, the narrator informs us of the specific differences between the two. During the eclogues, by contrast, he never pauses to do so. We are left wondering about the extent of these revisions. What exactly is the nature of these “little” polishes, and what constitutes the poems’ “substance?” Does the scribe correct minor metrical errors, as Gabriel Harvey did in his 1580 correspondence with Spenser? Or does he undertake a more extensive revision, like Sir John Harrington, who changed language and added phrases to his manuscript copy of the old Arcadia, making him an example of a scribe or manuscript owner who makes the work “in a sense his . . . own”?73 There are different ways in which we could interpret this ambiguity, and, by extension the eclogues’ version of poetic authority. It could be taken as emblematic of the dominant conception of literary production in the Renaissance, which is intimately bound up with critics’ period divides. As we have seen, the Renaissance has been persistently identified with the emergence of historical ­consciousness, wherein the past is understood to be utterly separate from the ­present and historical processes are understood to be unique. According to this model, historical consciousness inevitably leads to a profound sense of loss and alien­ ation from the past. Margreta de Grazia explains in her analysis of Renaissance periodization: “Without loss, there can be no real mourning, nostalgia, alien­ation, and—above all—no melancholy, what might be termed the period illness of the Renaissance.” This has consequences in the aesthetic realm since “without a r­ ecognition of loss, there can be no desire to recover, and without the 72 P. Sidney, Old Arcadia, ed. K. Duncan-Jones, (Oxford: Oxford University Press, 1994), 371n. 73 H.R.  Woudhuysen, Sir Philip Sidney and the Circulation of Manuscripts, 1558–1640 (Oxford: Oxford University Press, 1996), 343.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  127 desire to recover, there is no inspiration to represent, in either images or words, what has been lost: in sum, no stimulation to artistic production.”74 At the same time, the emergence of historical consciousness has almost the opposite effect. It enables the possibility of novelty since it insists upon the unique nature of each moment. Without historical consciousness, there can be no novelty. With his­tor­ ic­al consciousness, novelty not only becomes possible but imperative and the main aspect of literary production worth celebrating. Sidney’s eclogues seem to fit the bill in both respects. The Old Arcadia is ­celebrated as one of the most innovative literary texts of the sixteenth century, and the eclogues are arguably its most inventive feature.75 Their dizzying metrical experiments, including the use of quantitative verse, expand the poetic pos­si­bil­ ities of the English language, or at least showcase them. As classical imitations, they also seem inevitably to constitute an integral part of the literary historical narrative of loss and recovery. Sidney’s framing of the eclogues in terms of a scribal representation of an irrecoverable performance would only seem to compound their place in this narrative since we often think of performance itself in terms of loss and ephemerality.76 The eclogues seem to exist perfectly at the nexus of these models of performance and historiography. Yet, as we have seen, the romance has already taught its readers to be suspicious of novelty in the political realm. When the only character who makes a claim to novelty in the poetic realm is Basilius, we know it is something not to be celebrated there either. While foolishly courting Pyrocles in female disguise, he boasts that the love poem he has just recited was “not left me by my ancestors, but begun in myself ” (177). Indeed, the eclogues themselves mock insistent claims to newness. In one of the first eclogues, an older shepherd, Geron, chides the melancholic Philisides for his lovesickness. A generational battle follows, one in which both sides end up looking rather foolish. Geron explains to Philisides that women are a “fickle sex, and true in trust to no man; / A servant sex, soon proud if they be coyed” (73, ll. 28–9). He concludes dismissively, “thy mistress is a woman” (73, l. 30). In other words, what Philisides believes to be a unique or novel situation is just the same old story, the woman he takes as singular merely a type. Geron’s point is only bolstered by the way that love poems can be easily transposed from one mistress to another in the Old Arcadia, such as when Pyrocles borrows the poem that Philisides composed in praise of his mistress to describe Philoclea (242). In response to Geron, Philisides claims that the older man is himself a type. He is like all other old men who “still allege When they were 74  Margreta de Grazia, “The Modern Divide: From Either Side,” Journal of Medieval and Early Modern Studies 37.3 (Fall 2007), 456–7. 75  Gavin Alexander discusses a range of early modern responses to the Arcadia in G. Alexander, “Sir Philip Sidney’s Arcadia,” in The Oxford Handbook of Prose, 1500–1640, ed. A. Hadfield (Oxford: Oxford University Press, 2013), 226–7. 76  See, for example, P. Phelan, Unmarked: The Politics of Performance (New York: Routledge, 1993).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

128  Custom, Common Law, and the Constitution young” (74, l. 14). Geron and Philisides remind each other that they are each adopting old poses, and in the process, the poem reminds us of the conventional nature of the eclogues themselves.77 Even when Philisides tells Geron that everyone prefers the new to the old—“Old houses are thrown down for new we see;/ The oldest rams are culled from the flock”—it sounds more like a petulant ­complaint than an attitude to be admired or emulated (74, ll. 19–20). Common law, or more specifically common law as custom, offers Sidney an alternative model of literary production. Sidney’s suspicion of novelty resembles that of his legal contemporaries, whose understanding of custom he invokes in the romance’s narrative. Novelty implies a beginning, a moment of origin or institution and, in the legal realm, such moments were problematically associated with monarchs, conquerors, and emperors. Common law’s peculiar temporal schema, “time immemorial,” allowed legal thinkers to resolve this problem by placing the origins of common law firmly in an inaccessible past. More precisely, it enabled the claim that common law had no origins.78 In one sense, then, England’s common law was never new; but in another it was never old. The ­temporal schema of time immemorial meant that the past was never fully past; it suffused the present, remaining an integral part of it. In this way, common law and the temporal schema that undergirded it suggest an alternative to “historical consciousness” and potentially to the period divide that it instates. They negate the desire to or even the possibility of dividing time in such a way. Custom’s opposition to origins was bolstered by its status as ius non scripta, or unwritten law. Unlike the codified civil law, common law was “recorded nowhere but in the memory of man.” This is not to suggest that there was never a record of a particular practice or doctrine, but rather that, first, as a whole system, common law had no origins and, second, even when one could point to an early written record, it could be explained away not as the first time it was used, but rather as the first time its use was recorded.79 Since a written record could be identified with a moment of institution, its absence implied the opposite. Again, this allowed for common law’s dissociation from the authority of a single ruler. It was for this reason that its practitioners privileged the authority of practice over that of the written or codified. As the English lawyer and politician Sir John Davies would describe it at the beginning of the seventeenth century: “When a reasonable act . . . is found to bee good & beneficiall to the people, & agreeable to theire nature 77  Nandini Das points out that the generational competition and hostility that characterizes the poem, however, is itself a departure from past pastoral models that represent the exchange between youth and age as a “peaceful negotiation of continuity between generations.” N.  Das, Renaissance Romance: The Transformation of English Prose, 1570–1620 (Farnham: Ashgate, 2011), 69. 78  For a more extensive discussion of this idea, see Chapter 1, sections V and VI. 79  For example, see E.  Coke, Reports, in The Selected Writing and Speeches of Sir Edward Coke, Vol. 1 ed. S. Sheppard (Indianapolis: Liberty Fund, 2003), 62–3. See also my discussion of the statute of entail and its beginnings in “Lady Anne Clifford’s Common-Law Mind,” Studies in Philology 111.3 (Summer 2014), 529.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  129 & disposition, then do they vse it, & practise it, againe, & againe, & so by often it­er­ation & multiplication of the act, it becometh a Custome, & being ­continued without interruption time out of minde, it obtaineth the force of a lawe.”80 An act becomes a custom when it is performed over and again, and that custom becomes a binding law by virtue of its “being continued without interruption.” Davies’s own proliferation of terms (use, practice, again, again, iteration, multiplication) itself reinforces the necessity of repetition. This repetition linked past, present, and future together. It is akin to Will West’s recent description of early modern theatrical performance not as elegiacally ephemeral but rather as the “management of the rhythms of repetition.”81 Sidney’s eclogues may seem to further entrench the oral/written binary, but they are equally attuned to the relationship between practice or performance, on the one hand, and writing on the other. Like common law, they are unwritten, collective practices repeated over and again throughout the narrative. They are extemporaneous performances that play upon an unwritten set of rules. The phrase “unthought-on song” conveys not only their extemporaneity but also their organic nature. Interestingly, scribes of the Old Arcadia had different approaches to their own records of these songs. Many sought to make the poems, particularly those in quantitative verse, prescriptive by including metrical notations. One of the manuscript copies of the Old Arcadia (Cambridge Library MS  I.7) even includes an extensive note on the “rules observed in these English measured verses.”82 (See Figure 4.1 and 4.2.) The St. John’s College Cambridge Manuscript was owned by Abraham Fraunce, who used it to prepare his Arcadian Rhetorike.83 It is also the copy upon which Jean Robertson based her modern edition. The Ottley Manuscript (National Library of Wales), which contains only Sidney’s poetry, has a slightly different version: “Rules in mesured verses in English which I observe.” One could argue that these notes turn Sidney’s metrical practice into princely statute.84 Yet, the Davies Manuscript (BL Add MS 41402) contains no such note, and furthermore, almost no metrical notations. Henry Woudhuysen argues that it too was one of the manuscripts transcribed from Sidney’s working 80  J. Davies, “Preface” in Le Primer Report des Cases and Matters en Ley Resolues & Adiudges en Les Courts del Roy en Ireland (Dublin: John Franckton, 1615), 3. 81  W. West, “Replaying Early Modern Performance,” in New Directions in Renaissance Drama and Performance Studies, ed. S.  Werner (New York: Palgrave Macmillan, 2010), 35. Diana Taylor also ­critiques this understanding of performance, but in a different vein, in D. Taylor, The Archive and the Repertoire: Performing Cultural Memory in the Americas (Durham, NC: Duke University Press, 2003). 82  St. John’s College, Cambridge MS I.7, 42v–43r. 83 H.R.  Woudhuysen, Sir Philip Sidney and the Circulation of Manuscripts, 1558–1640 (Oxford: Oxford University Press, 1996), 338. 84  This would accord with an interesting change in the New Arcadia, wherein the eclogues’ scribe also becomes a judge: “Then they have most commonly one, who judgeth the prize to the best doer, of which they are no less glad, then great Princes are of triumphs: and his part is to set down in writing all that is said, save that it may be, his pen with more leisure doth polish the rudeness of an unthought-on song” (emphasis mine). See Sidney, The Countess of Pembroke’s Arcadia (The New Arcadia), ed. Victor Skretkowicz (Oxford: Clarendon Press, 1987), 24.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

130  Custom, Common Law, and the Constitution

Figure 4.1  Old Arcadia, 42v (Cambridge MS 1.7). By permission of the Master and Fellows of St. John’s College, Cambridge.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Performing Custom  131

Figure 4.2  Old Arcadia, 43r (Cambridge MS 1.7). By permission of the Master and Fellows of St. John’s College, Cambridge.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

132  Custom, Common Law, and the Constitution copy.85 Thus, it is difficult to tell how committed Sidney—or his scribes—were to the poetically prescriptive version of the Old Arcadia. The Old Arcadia’s eclogues, as has long been recognized, are political expressions, since, as the narrator explains, they are a way for shepherds to “under ­hidden forms utter such matters as otherwise were not fit for their delivery” (56).86 Whereas in the trial scene performance supports the authority of a single ruler, here it is aligned with the common authority of the people. But perhaps most crucially, the presence of an anonymous scribe and the reference to his transcription points us back to an earlier moment that cannot be accessed. Sidney, like his legal contemporaries, understood the productive power of an origin to which one had no desire to recover—or return. The scribe’s transcription allows him to frame the poetic experiments of the eclogues as ones that stem from an imagined past that he himself constructs.87 At the same time, the dual temporality of the eclogues disallows hard and fast distinctions between past and present. The eclogues represent, to borrow Glenn Burgess’s description of custom in ­common law, “a complex fusion of the growing knowledge of change with the persistent idea of continuity.”88 Since Sidney himself constructs the fantasy of a revision within the fiction of the Old Arcadia, one might argue that the scribe’s codification supplants the shepherds’ performance. Thus, he bears more than a passing resemblance to Euarchus and his manipulation of custom. But in the poetic realm, the material artifact becomes a way for Sidney to strategically inhabit both positions at once.

85  Woudhuysen, 326. 86 See A. Patterson, Censorship and Interpretation: The Conditions of Writing and Reading in Early Modern England (Madison: University of Wisconsin Press, 1991), 29–30. 87  One might also here consider the challenges of editing the Arcadia as arising partially from the difficulty of distinguishing between new and old. William Ringler and Jean Robertson argue for a sharp distinction between the old and new Arcadias, claiming that they were separate scribal transcripts. Victor Skretkowicz proposes that they “originated in the same body of foul papers.” H.R.  Woudhuysen replaces what we might call a generational model with a “contaminated hybrid text.” Revisions, he argues, were undertaken in no logical order, and Sidney may have even continued to work on the old Arcadia until the end of his life. Like Basilius, at once dead and alive, this text belies distinctions between its older and newer form. Additionally, these editors often struggle to determine the difference between a scribal error and an authorial reading, that is, Sidney’s own literary in­nov­ ation. See W. Ringler, Jr., ed., The Poems of Sir Philip Sidney (Oxford: Oxford University Press, 1962), 371; Robertson, lxvii; P.  Sidney., The Countess of Pembroke’s Arcadia (The New Arcadia), ed. Skretkowicz, lxxix; Woudhuysen, 310–13. 88  Burgess, 102.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

5

Cultivating Custom The Poetics of the Commonplace in Isabella Whitney’s A Sweet Nosgay

Thus far, this book has focused on male figures who were formally trained in or had an extensive knowledge of common law as a result of their social and political positions. But what about those who did not have the same intimate access to this legal knowledge? Could, and did, they participate in the poetics of custom? This question is especially pressing in the case of women writers, who had a vexed position in common law due to the primacy of primogeniture. This chapter offers a resounding yes in response by showing how Isabella Whitney’s 1573 A Sweet Nosgay was immersed in the conceptual and philosophical world of common law. In particular, her poetry draws upon and responds to the increased dissemination and popularization of knowledge about common law, especially its status as ­custom, and the ancient constitution in the mid-sixteenth century. This chapter reveals that even those who were marginalized subjects of common law could still find the concept of custom generative for their poetics. It builds, too, on the ­argument I have been making in previous chapters, that custom can be found at work not only on the level of content but also on that of form. In fact, Whitney is a test case for this claim since nowhere in her volume does she mention the term ­custom, yet it is powerfully present in the volume’s structure and approach to the temporality of commonplaces-as-poetry. Early modern writers, this chapter shows, were thinking with custom even when they did not name it. At first glance, Whitney’s volume appears very much in keeping with printed mid-century miscellanies and commonplace books. It begins with a dedicatory epistle to a hoped-for patron, as well as poems to the reader, family, and friends. These prefatory materials are followed by 110 commonplaces, which she explains are based on her reading of Hugh Plat’s Floures of Philosophie (1572), a collection of (supposed) Senecan sayings translated into English. The volume closes with “The Wyll,” a mock last will and testament, a poetic genre that appears in George Gascoigne’s 1573 A Hundreth Sundry Flowers and Richard Tottel’s 1557 Songes and Sonnetts.1 Even its title, which uses the metaphor of the book as garden and poems as flowers, is conventional. Around the time when Whitney was writing, 1  G. Gascoigne, “Dan Bartholomew His Last Will and Testament,” in A Hundreth Sundrie Flowres (London: Henry Bynneman, 1573), 436–8; R.  Tottel, “The Testament of the Hawthorne,” in Tottel’s Custom, Common Law, and the Constitution of English Renaissance Literature. Stephanie Elsky, Oxford University Press (2020). © Stephanie Elsky. DOI: 10.1093/oso/9780198861430.001.0001

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

134  Custom, Common Law, and the Constitution in addition to Gascoigne and Plat, Thomas Kendall titled his compilation The Flowers of Epigrammes (1577) and Richard Taverner called his “proper wytty and quycke sayenges of princes, philosophers, and diuerse other sortes of men” The Garden of Wisdom (1539).2 Yet, with her miscellany, Whitney seeks to enter into a literary tradition in which women had been assigned a role as consumers of knowledge rather than producers. As Whitney Trettien has shown, the “male translator-gatherer” of printed commonplace books and miscellanies often figured a woman, especially an aristocratic woman, as the “idealized . . . reader” of his work.3 By contrast, Whitney represents her reading of Plat’s volume of commonplaces as a “spur” to writing.4 For Whitney, the metaphor of the book as garden is crucial to the ­re-conception of her role—and Plat’s unusual use of the metaphor provides a ­perfect opportunity for her to do so. In his own volume, Plat asks his readers to imagine his book not just as a garden, a “pleasaunt plotte of fragrant floures,”5 but also as his own real or immoveable property—that is, his estate in land. One might have thought that, as a woman, Whitney would have found Plat’s trans­ form­ation of the horticultural metaphor to a proprietary one restrictive and ­off-­putting. After all, common law restricted access to property in ways that other legal systems operating in England did not.6 Despite this, Whitney composes “The Auctor to the Reader,” a poem that offers her readers instructions and guidance on how to approach the commonplaces that follow, around Plat’s use of the metaphor. Doing so allows her to create a space for female poetic self-invention within the commonplace tradition. In “The Auctor to the Reader,” it is precisely because she applies the temporality of custom to commonplaces themselves that she is able to enter this tradition. As we will see, by building upon Plat’s multi­ layered metaphor (book-as-garden-as-real property), she imbues her poetry with the temporality of the ancient constitution, ironically using a legal tradition that often excluded women in order to make a poetic tradition more accessible to them.7 Miscellany, 1557–1587, Vol. 1, ed. H.  Rollins (Cambridge, MA: Harvard University Press, 1968), 248–50. 2  For a complete list of writers who use this metaphor, see R. Anderson, “Metaphors of the Book as Garden in the English Renaissance,” The Yearbook of English Studies 33 (2003), 261. This metaphor can also be traced back to the medieval tradition of the florilegium. 3  W. Trettien, “Isabella Whitney’s Slips: Textile Labor, Gendered Authorship, and the Early Modern Miscellany,” Journal of Medieval and Early Modern Studies 45.3 (September 2015), 514–15. 4  Ibid., 514. 5 H. Plat, The Floures of Philosophie (London: F. Coldocke and H. Bynneman, 1572), A4r. 6  See Amy Louise Erickson’s influential study of ecclesiastical, equity, and manorial and borough court records for evidence of alternate forms of female property ownership: A.L. Erickson, Women and Property in Early Modern England (London: Routledge Press, 1993). 7  Whitney was not the only woman to do so. The seventeenth-century noblewoman Anne Clifford made use of it in her Diaries as well. See my essay, S.  Elsky, “Lady Anne Clifford’s Common-Law Mind,” Studies in Philology 111.3 (Summer 2014), 521-46.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  135 Two publishing trends made available knowledge about common law to a broad audience. Through printed histories, medieval sources about England’s past—and the ancient nature of its laws—were becoming more accessible to a swath of readers beyond the elite. At the same time, a group of lawyers compiled a range of law books addressed to non-professionals, or, as they designated them, members of the commonwealth. Richard Ross has termed this trend “the commoning of common law.”8 These popularizations shared a humanist program and a committed set of printers with sixteenth-century English translations of clas­ sic­al commonplaces. Over and again, the same printers appear on these title pages: John and William Rastell, Richard Tottel, and others. While humanism’s connection to both early modern history writing and commonplaces may be more immediately apparent, Ross has shown the importance of its tropes—­ particularly the “advocacy of textual dissemination” and the emphasis on the res publica—to printed law books that sought to familiarize readers with England’s legal system.9 Whitney’s use of the ancient constitution is made by possible by, but also presents a challenge to, these publishing trends. Whitney represents herself in A Sweet Nosgay as decidedly outside of the elite classes.10 Thus, when she makes use of the ancient constitution, she participates in, even exemplifies, the humanist program to broaden the scope of those who knew and understood common law. At the same time, through what I argue is an ultimately ironic relationship to Plat as her predecessor, both in “The Auctor to the Reader” and in her selection of commonplaces, Whitney casts doubt on the fantasy of full access that popu­lar­izers of histories, law, and commonplaces all offer, that is, the possibility of equal ­participation and status. The mock last will and testament that closes the volume responds to this challenge by offering a vision of what full access might look like— and what transformations it might entail. Crystal Bartolovich has argued that “The Wyll” redistributes London’s abundance away from the “patriarchal elite” and to, in Whitney’s term, its “people.”11 By associating this abundance with specific places in London, I argue, Whitney turns London into the true commonplace book and, by imaginary fiat, effects the impossible: making it common to all. 8  R. Ross, “The Commoning of the Common Law: The Renaissance Debate over Printing English Common Law,” University of Pennsylvania Law Review, 146.2 (January 1998), 323–461. 9  Ibid., 326, 329–30. 10  It is difficult to assess the veracity of this claim. What we know of Whitney’s biography is from her (likely) brother Geoffrey Whitney, the university-educated son of minor gentry who obtained a law degree and (rather unsuccessfully) held multiple administrative positions thanks to the patronage of the Earl of Leicester. His fame, though, comes from his participation in a very particular humanist literary tradition, the emblem book. His 1586 A Choice of Emblems and Other Devises, published by the Plantin Press in Leiden, was the first to translate the verse portion of emblems into English. There is a strong possibility that in her youth Isabella received a humanist education secondhand through her brother. In her poetry, Whitney describes herself as going into household service in London. 11  C. Bartolovich, “ ‘Optimism of the Will’: Isabella Whitney and Utopia,” Journal of Medieval and Early Modern Studies 39.2 (2009), 416.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

136  Custom, Common Law, and the Constitution

I.  The Paradox of the Private in “The Letter to the Auctor” In her poem “The Auctor to the Reader,” Whitney recounts the story of how A Sweet Nosgay came into being. She begins by explaining that her current employment status—or lack thereof—led her to read a range of books: This Harvest tyme, I Harvestlesse, and servicelesse also: And subject unto sicknesse, that abrode I could not go. Had leasure good, (though learning lackt) some study to apply: To reade such Bookes, wherby I thought my selfe to edifye.12

Whitney reads scripture, histories, and classical and neo-classical poets, but rather astonishingly, some of the most important books of the Renaissance prove unsatisfactory, and she decides to go for a walk in the streets of London instead (5–15). There she bumps into a friend who warns her of its pestilence and advises her to return home (15–18). Already an odd poem—what is an unemployed serving woman doing reading these elite texts?—what happens next is one of the stranger moments still in the annals of the history of reading. Upon returning home, Fortune guides Whitney to another book, Plat’s Floures of Philosophie, which provides her with the pleasure and comfort that scripture, history, and ­literature—in other words, the materials from which commonplace books were compiled—could not (26–30). Her volume, she explains, in turn offers the reader those selections from Plat’s commonplace book that she has found most efficacious with the hope that they will find them helpful too (47–58). What does Whitney find in the commonplaces that she could not find in Scriptures, his­tor­ ies, and literature themselves? What appeals to her about Plat’s book in particular, given the availability of more renowned commonplace collections, most notably the recent translations of Erasmus? I argue that his extensive use of the conventional metaphor of the commonplace book as garden makes Plat’s book an important precursor for Whitney. Or, perhaps more precisely, it is his misuse of the metaphor, at least in Whitney’s view, that renders it fertile ground for Whitney’s poetics. Plat’s conception of his book as a garden that he owns enables Whitney to take up questions similar to the ones Thomas More and Erasmus had addressed: to whom does the proverb and to whom does the law belong? While More and Erasmus thought about the contours of possession within the realm of the Latin learned, Whitney does so, as we shall  see, in the mid-century context of vernacular popularizers of both common law and commonplaces. She responds poetically to these questions 12 Whitney, A Sweet Nosgay, in Three Renaissance Women Poets: Lanyer, Whitney, Sidney, ed. D. Clarke (New York: Penguin Press, 2001), ll. 1–4. Unless otherwise noted, all quotations are from this edition and are hereafter cited within the text.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  137 with an ambivalent and ambiguous stance toward Plat’s metaphor—at times respectful and at times mocking—that attends to the tensions at play in the desire of popu­lar­izers to focus on the common of common law, on its customary aspect, that is, their desire to give to the English people knowledge of practices that were supposedly their own. Given her self-described social position, there were other translations that could have provided more apt models for Whitney.13 Contemporary English translations of Erasmus’s collections in particular were directed at a wider audience. In his translation of Erasmus’s Apophthegmata (1542), Nicholas Udall added his own prefatory letter to the reader, placing it ahead of Erasmus’s preface to the “Dukes soonne of his countree.” While Erasmus’s preface emphasizes the utility of these “notable good and brief saiynges” for a ruler, Udall’s describes them as “most honeste, profitable, & holsome readyng” not only for noblemen but also for “all maner persones.” He explains that because he would like to make the Apophthegmata available to students as well as to “unlearned readers,” he both “entrmixe[s]” these classical languages with his English translations and includes his own ex­plan­ations of Erasmus’s allusions. Thus, for example, he explains who Plato and Socrates are in a marginal note to Erasmus’s preface. Even further, Udall goes so far as apologies to “unlearned readers” for including Greek and Latin in his English text.14 Whitney in some ways looks like the reader they imagine—although she may take their vision to a greater extreme as a female reader of commonplaces. Unlike these translations, Plat works extensively within the garden metaphor. Not only does he take it as his title, which was not unusual, but he also fashions his dedicatory epistle around it. He instructs his dedicatee, Lady Anne Dudley, to create from his “sweet slips” objects to adorn her body, “garlands to weare on [her] head” or “nosegaies to beare in breest.”15 A subsequent prefatory poem en­titled “The Description of My Garden” describes the various flowers, herbs, and fruit that he has planted in its beds and borders, and the maze he has constructed “for Ladies all,/With Lords to walke their fil.”16 It concludes with a Senecan warning to the reader to “learne from soure to suck the swete/much like the roaming bee.”17 Plat’s horticultural imagery departs from convention in one crucial respect: this garden has an owner. Plat refers to The Floures of Philosophie in proprietary terms over and again. He titles his prefatory poem “The Description of My Garden,” and uses the possessive adjective to describe the flowers it contains: Such vertue haue my Marigoldes, within their stalkes enrolde

13  Indeed, given her familiarity with classical tropes, one wonders if she also read portions of these books in the original Latin. 14 D. Erasmus, Apophthegmata, trans. N. Udall (London: Richard Grafton, 1542), *2v–*3r. 15  Plat, A2v. 16  Ibid., A4v. 17  Ibid., A5r.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

138  Custom, Common Law, and the Constitution That Phoebus with his burning beames cannot their leaues vnfolde. The double Dayses al in rankes,    about my garden goe, With comly course of Camomil    that spreadeth too and fro.18

He also warns visitors not to breathe their “noysome blast” upon “my smelling herbes.”19 In the poem that concludes the volume, he likewise refers to “my ­garden,” “my beddes,” “my fruite,” and “my grounde,” adding for good measure that he has constructed a “thornie headge” to “fraye,” or frighten, thieves away.20 In other words, he imagines it to have the status of real property and this places it in the realm of common law. Whitney follows suit in “The Auctor to the Reader,” describing his book as “Master Plat his ground” (70) and “Plat his Plot” (89). She extends the metaphor, calling Plat’s book a “plot” where “Flowers abound;” describing its “Beds so bravely deckt, with every goodly Flower;/And Banks and Borders finely framde;” and even advising others to “repayre to Master Plat his ground / And gather there what I dyd not” (29, 31–2, 70–1). In amplifying the “trope of enclosure,” Bartolovich argues that Whitney “exhibit[s] awareness of an emergent concept of literary ownership, modeled on property in land.”21 The poem reveals how ­supposedly “common” materials like conventional flowers were a form of male cultural property. Thus, when Whitney imagines herself entering that property, and invites others to do so as well, she transforms that property into a kind of commons.22 To this I would add that Whitney lampoons Plat’s misguided and ostentatious sense of ownership over the commonplaces in The Floures of Philosophie, many of them already common English proverbs. The phrase “Plat his plot,” which appears multiple times in “The Auctor to the Reader,” can be read as having a biting edge. Whitney’s repeated references to his supposed ownership of a common literary inheritance lays bare the wrongheaded nature of this ­conception of the commonplace, and her subtle mocking of Plat’s work as ­property undermines for the reader any sense that it should be accepted as such.

18  Ibid., A4r–v. 19  Ibid., A4v. 20  Ibid., M6r–v. 21  Bartolovich, 413, 415. 22  Ibid., 415. As a Londoner, Whitney could also have had local custom in mind, since London had a whole set of them, but here I argue particularly for her connection to and reflections on common law because of her focus on real property and her interest in probing the relationship between private property and the commons. For more on the complex relationship between London custom and common-law custom—which sometimes intersect with each other, especially because of Westminster as the center of common law, and sometimes diverge from one another—see P. Tucker, Law Courts and Lawyers in the City of London 1300–1550 (Cambridge: Cambridge University Press, 2007), 1–2, 31, 362–71 and D.  Ibbetson, “Custom in Medieval Law,” in The Nature of Customary Law, eds. A. Perreau-Saussine and J. Murphy (Cambridge: Cambridge University Press, 2009), 170.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  139 Yet, at the same time, building upon Plat’s metaphor of writing as real property enables Whitney to connect to another group of popularizers, writers and ­printers who aimed to make the content of common law available to the nonprofessional reader. John Rastell, Richard Taverner, Thomas Phaer, Christopher St. German, and others wrote, compiled, and published books explaining common law’s main principles, terms of art, and important cases. To be sure, the number of books of this nature being printed accelerated after 1580, but no fewer than twenty-five ­separate titles were published during the time that Whitney was writing, and many of these were reprinted multiple times.23 The books’ title pages often advertised their necessity. Thomas Phaer’s described the contents of his A New Boke of Presidentes (1543) as “the very trade of makyng all maner [of] euydence and instrumentes  of  practyse,” as “ryght commodyous and necessary for euery man to knowe.”24 The title page of Richard Taverner’s Institutions or Principal Grounds of the Laws and Statutes of England (1544) proclaims that it contains information “uerye profytable for all sortes of people to knowe.”25 Although John Rastell’s The Exposicions of the Termes of the Lawes of England (1523) makes the more limited claim on its title page that its contents were “for yong men uery necessarye,” even in this instance the book markets itself to young men in general rather than to ­students of law.26 As Ross has argued, printers like Rastell saw an opportunity to apply humanist thinking to the printing of English law, making the legal press “a brother educator.”27 Their involvement in the printing of humanist texts put them in the ideal position to do so. The Rastell family, William and his son John, who was also Thomas More’s brother-in-law, printed The Lyfe of Johan Picus in 1510 and in 1530 Julius Caesar’s Commentaries; Cicero’s De Amicitia; and Necromantia: A Dialogue of the Poet Lucian, all translated into English by members of Thomas More’s circle.28 Tottel is well known for printing an English translation of Cicero’s Book of Duties (1556); Raphe Robynson’s translation of Utopia (1556); and ­perhaps most consequentially for humanist poetics, Songs and Sonnets (1557), more commonly called Tottell’s Miscellany. Thomas Phaer was the first Englishman

23  Ross, 397–8. In the period 1581–1640, close to 100 separate titles were printed. 24 T. Phaer, A New Boke of Presidentes (London: Edward Whitechurch and R. Banks, 1543), title page. 25 R.  Taverner, Institutions or Principal Grounds of the Laws and Statutes of England (London: W.  Middleton, 1544). The book was first published as Institutions in the Laws of England (London, 1538) and then as The Principall Lawes and Statutes of Englande (London, 1542). There were twelve more editions of the Institutions published between 1543 and 1573, the year of the publication of Whitney’s A Sweet Nosgay. It was published by multiple printers, including Richard Tottel. Taverner is generally accepted to be the editor of the text, and author of the preface. 26 J. Rastell, Exposicions (London: John Rastell, 1523). Exposicions was first printed by Rastell in 1523, with a subsequent edition in 1525. Richard Tottel took over the printing in 1563, 1567, and 1572. 27  Ross, 329–30. 28 He also published several of More’s religious works, including The Confutation of Tyndale’s Answer (1532), The Second Part of The Confutation (1533), The Apologye of Sir Thomas More (1533), and The Debalacion of Salem and Bizance (1533).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

140  Custom, Common Law, and the Constitution to try to translate the entirety of the Aeneid into English, while Richard Taverner, as we have seen, was the English translator of Erasmus’s Adages. In their prologues, the “disseminationists,” as Ross calls them, drew upon humanist topoi about the good of the commonwealth in order to provide justification for publishing and publicizing these materials.29 Rastell claimed in his prologue to the Exposicions: “[T]her is no multytude of pepyll in no realme that can continue to in vnite and pease withouse they be therto compellyed by some good order and law.” Repeating the word “common” and its variants no less than four times over the course of a single sentence, Rastell advocates for a common common law because “a good law obseruyd causith euer good peple and a good resonable commyn law makith a gode commyn pease and a comyn welth a mong a grete commynalte of peple & one good gouernour whych causyth one good vnyte”30 In order for this model to work, he argues, “it is necessary that the gret multitude of the peple haue the knolege of the same law to the whiche they be bounde,” and, therefore, “it folowyth that the law in euery realme shuld be so publysshyd declaryd and wrytton in such wyze that the people so bound to the same myght sone and shortely come to the knowlege therof.”31 Taverner, the likely editor of Institutions or Principal Grounds of the Laws and Statutes of England (a title that invokes Justinian’s Institutes, itself an elementary textbook for Roman law) began his preface by citing Demosthenes, who calls law “the common surety of a Realme” and therefore asserted that “it becommeth all men to lyue, whyche bee conuersaunte in the same.”32 They all shared with humanists a desire to ­discover what best benefits the commonweal. Chronicle histories, similarly aimed at a broad audience, implicitly supported this endeavor with their genealogies of common law’s name. Some chroniclers explained that the law was called “common” for geographic reasons. King Edward, in John Stow’s account, “gathered together out of the lawes and ordinaunces of four nacions, whiche were receiued when the Islande was subiecte to diuers 29  Ross, 330. In focusing on humanist influences, I do not intend to discount recent scholarship that has shown the medieval influence on Rastell and others’ disseminationist goals. On the influence of medieval confessional manuals on St. German’s conception of conscience and commitment to making that conception broadly available in Doctor and Student, see Ian Williams, “Christopher St. German,” 89. On the connection between Rastell’s work and fifteenth-century texts that translated archaic terms (including legal ones) so they could be broadly available, see S.  Sobecki, Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463–1549 (Notre Dame, IN: University of Notre Dame Press, 2015), 137–9. I disagree, however, with Sobecki’s rejection of humanist thinkers of the Erasmian vein as influences on Rastell because they were only interested in “se­lect­ive dissemination to an elite audience” (141). As I discuss here and in Chapter 1, writers like Erasmus and Thomas More exhibit an ambivalent attitude toward both broad and selective dissemination, one that I argue Whitney also perceived in Rastell. 30  Rastell, A1r. All subsequent editions also include this prologue. 31  Ibid. Similarly, in the prologue to The Statutes, first published in 1519, he wrote that “[E]uery lawe wherto any people should be boundyn oughte & shuld be wrytten in suche maner and so opynly publyssed & declaryd that the people might sone without great difficultie haue the knowledge of the same lawes.” J. Rastell, The Statutes (London: John Rastell, 1527), A1r. 32  Taverner, A24r.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  141 regementes and gouernaunces, to wete of the Mercies, of the West Saxons, of the Danes, and of the Northumbers.”33 But, strikingly, in other instances, chroniclers claimed that King Edward’s Laws were “common” because they benefited a c­ ertain segment of the population, the commons. In the 1572 edition of An Abridgement of the Chronicles of England, Richard Grafton describes the process by which King Edward’s laws came about as follows: “This Edwarde . . . purged the old and ­corrupt lawes and picked out of them a certein whiche were most profitable for the commons, and therefore were they the called common laws.”34 In the 1573 edition, A Summarie of English Chronicles, Stow tells a similar story: “The noble kynge Edwarde fynished hys laste daye whenne he hadde reygned foure and twenty yeares. vii. monethes and odde dayes. Hee purged the olde and corrupte lawes,  and pycked out of them a certayn, whych wer most profitable for the ­commons. And therfore were they called the common Lawes.”35 If the first ex­plan­ation favors geographic unification, the second foregrounds class identity. It characterizes the law as belonging specifically to the “commons;” thus it would make sense that it should be available to them as well. Whitney’s attitude toward the idea that commonplaces could be treated as real property reflects this history. Her transformation of Plat’s garden into a common space in which she, as a reader, belongs is akin not only to the one that popu­lar­ izers of commonplaces sought to bring into being, but also to the one that the “disseminationists were trying to instantiate with their own publications. In this sense, her work takes on the same questions as More’s Utopia—to whom does the law and the proverb belong?—but from a different vantage point, that of a woman writing in the vernacular. Her work too anticipates the first English printed ­commonplace books that contain quotations from vernacular English writers, such as Francis Meres’s Palladis Tamia (1598) and Bodenham’s Bel-Vedere (1600). Heather James has identified them as “communal space[s] in which English men and women . . . may roam, reflect . . . debate their central concerns, and all without concern for social rank.”36 But we do not have to wait until the end of the century for this communal English space. Twenty-five years earlier, Whitney i­magines that this might be possible even of a commonplace book like Plat’s that positions itself as drawing upon classical sources and addressed to aristocratic women. It is as though Whitney applies the logic of legal custom to translation. For her, the translated classics are always already English and contemporary. By being “Englished,” commonplaces can become English. Like Spenser and Sidney, she 33 J. Stow, A Summarie of English Chronicles (London: Thomas Marsh, 1573), 68v. 34 R.  Grafton, An Abridgement of the Chronicles of England (London: Richard Tottel, 1572), 31r. This abridgement was first printed in 1562 and new, ever-less-abridged editions appeared before Whitney’s book, in 1563, 1564, 1570, and 1572. 35  Stow, 49v–50r. 36  H.  James, “The First Printed Commonplace Books and the Rise of the Common Reader,” in Formal Matters: Reading the Materials of English Renaissance Literature, eds. A.  Deutermann and A. Kiséry (Manchester: Manchester University Press, 2013), 27.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

142  Custom, Common Law, and the Constitution understands humanism not as the recovery of the past or the transplantation of the foreign, but rather as the materials of an English poetics and, as we shall see, the tools for female poetic self-invention. At the same time that Whitney shares similar goals to the popularizers, though, in her poetic relationship to Plat, Whitney begins to recognize tensions inherent in common law and, thus, the conceptual challenges that these popularizers faced. Even though Whitney describes her unfettered access to the garden, the relationship between Plat and Whitney is not an entirely rosy one. At first, in “The Auctor to the Reader,” she describes his attitude toward his property in benevolent terms, praising him for allowing anyone with “good zeale” into his garden (41), and in particular for allowing her to “come when as [she] wyll:/Yea, and to chuse of all his Flowers, which may [her] Fancy fill” (45–6). As we have seen, she even advises her readers who may not have found solace in the commonplaces she has selected to read his book and “gather there what I dyd not” (70). Plat’s hospitality, however, turns out to have its limits since only those with skill should be allowed in (77). “Repayr[ing]” to his plot is inadvisable, too, since, as she ­concludes the poem, “Take heede it is a Maze, to warne thee I forgot” (90). Finally, in “A Farewell to the Reader,” the poem that follows the commonplaces she has selected from Plat’s book, Whitney refers to Plat as “he who ought [owns] the plot” and hopes that her use of his book does not anger him: Fume not to see them borne aboute,  and wysh he did mée know.  And say in rage were she a man,  that with my flowers doth brag,  She well should pay the price, I wolde  not leaue her worth a rag.

(27–32)37

With this double subjunctive—if Plat had read her book and if she were a man— Whitney imagines Plat vengefully imagining how he would have responded to A Sweet Nosgay, by bringing a suit against her—presumably for trespass or theft — that would have left her destitute. Far from the beneficent landholder of the “Letter to the Auctor,” Plat is here depicted as a litigious, territorial property owner. The tension between the garden as a commons and private property in her poem conveys challenges that male writers were slow to recognize. Even as their prologues bespoke a desire for common knowledge and a desire to live up to the nomenclature of “common law,” the contents of their texts were overwhelmingly comprised of one subject: property. Taverner begins the first chapter of his Institutions, “What is Lawe,” quite loftily: “The law is the direction and

37 Whitney, A Sweet Nosgay or Pleasant Posye (London: R. Jones, 1573), C5v.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  143 ministration of Iustice.” To learn law is to gain nothing less than “knowledge of deuine and humaine thinges.” But he quickly moves on to more mundane matters: Nowe for asmuche as a great porcyon of the prudence or science of the lawes of this realme of England consisteth in the perfy knowledge of estates, whiche men haue in landes and tenementes: we shall fyrste as compendiously, and as symply and playnly as we can, treate som what of estates.38

To learn of divine and human things, it turns out, one must first learn about property. This represents a remarkable reversal of the order of Justinian’s Institutes, in which the laws of persons appear before the laws of things.39 Although, at sixty-eight folio pages, Taverner’s text does live up to his promise of concision, we never quite get past that “fyrste” goal. Almost the entirety of the text is taken up, in one form or another, by an explanation of estates. If common law is fundamentally about private property, then, where does it leave a vision of the commons? Like More before her, Whitney understands that arguments for common law’s ­commonality will always be dogged by the paradox that it governs the private.40 The mocking edge to Whitney’s coopting of Plat’s possessive language, then, reflects back on the “disseminationsts,” and her “Wyll” takes up precisely this paradox.

II.  Commonplacing London After Whitney’s avowed skepticism toward the status of Plat’s garden as property, as well as her multiple assertions of poverty, it may come as a surprise that the closing poem of A Sweet Nosgay takes the form of a last will and testament, a legal document whose main purpose is to secure the continuity of private property. But, as critics have shown, “the Wyll” belongs to the mock testament, or “anti-will,” trad­ ition, a popular sixteenth-century genre in which the “powerless [bequeath] ­grotesque or extravagantly impossible legacies” that satirize or admonish the will’s recipients.41 This poetic tradition and its concern for the problems and ambiguities of social hierarchies based on property relations makes it an ideal form for Whitney. Yet “the Wyll” departs from tradition in both the legacy it leaves (London) and to whom it leaves it (London). I argue that with its focus on place, “the Wyll” becomes

38 Taverner, Institutions, 1544 ed., A3r. 39  On the genre of institutes or institutions, see J.W.  Cairns, “Blackstone, an English Institutist: Legal Literature and the Rise of the Nation State,” Oxford Journal of Legal Studies 4.3 (1984), 318–60. 40  See Chapter 2. 41 J. Ingram, Idioms of Self Interest: Credit, Identity, and Property in English Renaissance Literature (London: Routledge, 2006), 82. See also L. Ellinghausen, “Literary Property and the Single Woman in Isabella Whitney’s A Sweet Nosgay,” Studies in English Literature 45.1 (Winter, 2005), 13.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

144  Custom, Common Law, and the Constitution a response to the problems of popularization of commonplaces and common law that she had depicted in “The Auctor to the Reader.” Mock testaments appeared in some of the most famous mid-century mis­cel­ lanies—“Testament of the Hawthorn” in Tottel’s Miscellany (1557) and “Dan Bartholomew of Bath, His Testament” in Gascoigne’s Posies (1575), for example— and their subjects were varied. Some took aim at the Catholic Church, leaving members of the clergy what they lack (i.e., chastity);42 others trained their lens on the upper classes, featuring, for example, animals who were about to be slaughtered leaving parts of their own bodies to members of a household and kingdom.43 Even by the standards of this capacious genre, though, Whitney’s version is surprising. It begins rather inauspiciously since she describes herself as “very weake in Purse” (2), leaving the reader to wonder what precisely she can devise in her will. At this point, Whitney could follow the lead of her predecessors and focus on intangibles instead: she could, like Jyl of Braintford, bequeath a series of farts to foolish men,44 or, like the Devil, leave virtues to those who lack them. She might even take the extreme measure of the testamentum asini and cynically leave parts of her impoverished body to those who have tormented her (London especially). Instead, she magnanimously bequeaths London and its abundance to itself and its inhabitants.45 She is fundamentally interested in depicting a place. The bequests begin strikingly and are worth quoting extensively: I first of all to London leave because I there was bred: Brave buildyngs rare, of Churches store, and Pauls to the head. Betweene the same: fayre streats there bee, and people goodly store: Because their keeping craveth cost, I yet wil leave him more. First for their foode, I Butchers lea[v]e, that every day shall kyll: By Thames you shal have Brewers store, and Bakers at your wyll.

(25–36)

42 Anon., The Wyll of the Devyll (1548), ed. F. Furnivall (London, 1871), 20–8. 43 J.  Lacy, Wyl Bucke his Testament (London: William Copland, 1560). See also the thirteenth-­ century Latin poem, “Testamentum Asini” in Carmina Medii Aevi, ed. F. Novati (Florence: Libreria Dante, 1883). 44  R. Copeland, “Jyl of Braintford’s Testemant” (1535), ed. F. Furnivall (London, 1871), 7–19. 45  Here I agree with Bartolovich’s reading of the poem’s tone as playful and hopeful, in contrast to Ingram (76) and Ellinghausen (13), who both argue for a cynical tone throughout the poem.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  145 “The Wyll,” like More’s Utopia, is characterized by shared abundance. But if More’s ideal society is characterized by temperance, then Whitney’s is one of shared indulgence. She leaves butchers, brewers, fishmongers, and bakers to the “people” of London (34–6). Even those who observe orders can find not one but two streets full of fishmongers. And for those who overindulge, she thoughtfully leaves apothecaries, physicians, and surgeons (93–102). The bounty she devises upon London goes beyond foodstuff to include wine, wool, linen, silk, jewels, plate, luxurious clothing, dancing schools, and more. The first third of “the Wyll” reads like an English country house poem avant la lettre transposed into the city. Those who are put off by the asceticism of More’s Utopia may find the London of Whitney’s “Wyll” an appealing alternative. Yet it is not just baked goods and beer that she leaves to its inhabitants but butchers and brew stores “by Thames” (35); not just wool but wool shops on “Watlyng Streete, and Canwyck streete” (41); and not just silk but mercers “in Cheape” (49). Whitney continues to display her intimate knowledge of London by connecting types of merchandise to specific streets throughout the first third of the poem. Something very simple about this poem has not been emphasized enough: her identification of each bequest to a very particular location in London is gratuitous. To redistribute the stuff of London’s abundance—its goods, merchandise, food, and services—away from the “patriarchal elite” does not necessitate redistributing London itself. What moves her, then, to reconceive of this poetic sub-genre in this particular way is her engagement with the popularization of the classical commonplace and the English common law—which, as I have suggested, is itself a product of thinking of common law as custom—through the metaphor of the garden. Whitney connects “the Wyll” to her earlier garden poem, and, thus, to the writings of her male contemporaries.46 “The Wyll” more fully realizes the fantasy of full access that they had imagined in their writings on common law and commonplaces— and its implications. While Taverner and others, as Ross has argued, were not interested in reforming the law but just in disseminating it, Whitney recognizes, or perhaps proposes, that popularization requires a thorough re-imagining of the system itself.47 This, her poem suggests, is what it might look like to remove the paradox of commonality from common law. She does so by transforming London into the true commonplace book.48 46  Her focus on place in the will may also be informed by the ways in which local London legal customs differed from common law. Unlike common law, which prohibited real property (especially freehold) from being bequeathed in a last will and testament, London law allowed “every one seised of land” (particularly city property) to devise that land by will. In other words, it could be treated as personal property or chattel. See M.  Bateson, Borough Customs, Vol. 2 (London: Selden Society Publications, 1906), 99 and Tucker, 48–50. 47  Ross, 338. 48  Common law and the last will and testamant were usually considered distinct from one another. First, wills of property other than land were allowed and enforced primarily by church courts. Second,

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

146  Custom, Common Law, and the Constitution

III.  Custom and the Temporality of the Garden Thus far I have been focusing on the role of property and place in Whitney’s ­volume, but both of these are intimately connected to its temporality, its interweaving of past, present, and future. “The Wyll,” I will argue, makes use of the temporality of legal custom to represent multiple temporalities and thereby im­agine a future. To understand how and why this works, though, we must first return to the volume’s opening poem, “The Auctor to the Reader.” Much like the first sonnet in Sidney’s Astrophil and Stella, the story of A Sweet Nosgay’s birth is as much about reading as it is about writing. But even more specifically, it is about the temporalities of different kinds of reading and their implications for writers. Whitney, I argue, reads and rejects classical histories at the start of the poem because of her dissatisfaction with their linear temporal schema; she replaces these with the commonplace book precisely because the garden metaphor allows her to envision a different relationship to the past. As we saw in Chapter 2, More recognized the temporal similarities between common law and the commonplace through their shared roots in custom.49 Whitney, too, is attuned to these connections, and, like More, she understands them through a place that she sees as ­common—the garden rather than Utopia. But here, once again the garden, especially characterized as real property, paradoxically plays an important role. In ­section  II, I elucidated her connection to popularizers of common law through their prefatory material. In this section, I look at how the content of multiple printed texts about common law’s history made available the concept of custom and its tem­poral schema. These, I argue, open up a crucial vista for her as an author, becoming the basis for her identity as an urban female poet. Given her gender identity and class position, her writing could easily be designated a break with the past, an unacceptable novelty. Yet her use of the garden metaphor, by turning distant his­tor­ies into present spaces, renders her writing part of time’s ­continuous flow. the will is the device to which one turns when one wants to depart from the dictates of common law’s real property inheritance model. We might be tempted to see Whitney’s use of it as a rejection of ­common law. Yet the will’s relationship to common law was a controversial topic throughout the sixteenth century, as some lawyers and lawmakers tried to incorporate it into common law, while others sought to make landowners’ testamentary bequeaths of land “ineffective at common law.” The Statute of Uses (1536) succeeded in doing so, and the Pilgrimage of Grace rebellion demanded that this statute be repealed. The problem was that common law did not always reflect the will of the common people. The subsequent Statute of Wills (1540) brought wills of freehold at least partly into the fold of common law (a third of land held by knight service still followed common-law rules), yet the détente was an uneasy one. In this sense, the will is not a complete rejection of common law and, even further, is an ideal form for Whitney because it gets exactly at that tension between different models of ­commonality. For accounts of this history, see especially A.W.B. Simpson, A History of Land Law, 2nd ed. (Oxford: Clarendon Press, 1986), 139–91. For a discussion of local London customs regarding land inheritance, see note 22. 49  See Chapter 2, section I.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  147 In “The Auctor to the Reader,” Whitney is actually concerned with two different senses of time: first, what I will call “readerly time,” that is, the time, or kind of time, it takes to read a text; and, second, what I will call “textual time,” the nature of time implied in or posited by that text. Both of these senses render the ­commonplace book appealing to Whitney as a genre in and of itself, and even more appealing than the source materials she mentions in the poem’s opening. In these lines, she intimates that “readerly time” is only available to her when she is both ill and unemployed. Here are the opening lines again: This Harvest tyme, I Harvestlesse, and servicelesse also: And subject unto sicknesse, that abrode I could not go. Had leasure good (though learning lackt) some study to apply: To read such Bookes, whereby I thought my selfe to edifye. (1–4)

While we now understand leisure time to mean a period of time without serious obligations, during this period “leisure” most often meant the presence of an opportunity or an occasion.50 Further, the full phrase, “leisure good,” indicates a period of intense deliberation. Thus, for example, Raphael Holinshed describes the conversion of the ancient Briton king Lucius to Christianity as a result of the “good leisure” he had to “meditate upon Heaven” after being exiled for murdering his brother.51 Thomas Harding accused Martin Luther of forsaking his “order and faith” without “good leisure and great consideration.”52 Letter writers often asked their addressees to “take good leisure” before responding to their request. In the political sphere, Philomon Holland’s translation of Livy’s The Roman Historie describes a captain who “made no great hast in his affaires, but loved to take good leisure, being astonied with carefull thoughts.”53 The verb “peruse,” which she subsequently uses to describe her reading of Scriptures (5), as opposed to its ­common meaning today, meant the in-depth examination of a text.54 This too indicates the serious nature of her engagement. The period of intense deliberation is enabled by the absence of other responsibilities that take up time. But leisure as a temporal quality ends up being at odds with her social stature, or lack thereof, since, later on in the poem, it seems to disappear as quickly as it arrived. Commonplace books, by contrast, are represented by Whitney as suitable to those who lack leisure. When she encounters Plat’s book, Whitney almost ­immediately notes the amount of time she spent reading it, or, to use her 50  K. Burke, “The Invention of Leisure in Early Modern Europe,” Past & Present 146.1 (February 1995), 139. In his response, Joan-Lluis Marfany argues that the idea of leisure was a development of the aristocratic classes in the period. Here Whitney claims it for herself. J-L. Marfany, “Debate: The Invention of Leisure in Early Modern Europe,” Past & Present 156.1 (August 1997), 174–91. 51 R. Holinshed, The First Volume of the Chronicles (London, 1577), 10v. 52 T. Harding, A Confutation (Antwerp, 1565). 53 P. Holland, The Roman Historie (London, 1600), 383. 54  “peruse, v.,” Oxford English Dicitonary, def. I, II2–4b.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

148  Custom, Common Law, and the Constitution metaphor, the amount of time she spent in his garden: “Amongst those Beds so bravely deckt, with every goodly Flower:/ . . . I mee reposde one howre / And longer wolde, but leasure lackt, and businesse bad me hye” (31–3). She rests, but not for too long. Now that Whitney suddenly lacks leisure rather than learning, the condensed nature of the commonplace book proves ideal. She can remove a “slip” to carry with her as protection from the city’s infection (moral and otherwise) (36). Back home, she can spend time looking at the garden’s “prospect” “ech day once” rather than having to spend long periods of time with it in intense deliberation (38). Yet even when Whitney finds herself in possession of “readerly time,” she ul­tim­ate­ly rejects the source texts. They require not only time but also, among other things, a facilitator55 and an inclination to believe their lessons. Whitney ironically displays her familiarity with the practices and goals of humanist reading by describing her inability to implement them: Somtime the Scriptures I perusd, but wantyng a Devine: For to resolve mee in such doubts as past this head of mine To understand: I layd them by, and Histories gan read: Wherin I found that follyes earst, in people did exceede. The which I see doth not decrease, in this our present time More pittie it is we folow them in every wicked crime. (5–10)

Whitney is aware that the ideal practice for reading the Bible is not to read it alone, but rather with a facilitator who could “resolve” her doubts, a phrase that indicates an academic engagement with theological conundrums. Her desire for a clergyman’s guidance should be understood not as an admission of her inferior feminine intellect, but rather as an acknowledgment that she lacks access to the kinds of service relationships that upper-class male and female readers possessed. For example, despite her deep familiarity with the Bible, Lady Anne Clifford postpones reading Leviticus until she could do so with her “divine” Dr. Ran. Reading collaboratively signals the “privilege that belongs to her class of employing someone else to do the work of reading for her.”56 Without the privileges of a “person of property,” privileges that pertained to wealthy men and women, Whitney lacks a reader to select and interpret for her.57 In other words, she is not necessarily registering a gender problem here, but rather a class one.

55  Anthony Grafton and Lisa Jardine coined the term “facilitator” to describe the role played by scholars such as Gabriel Harvey in guiding statesmen through the reading of classical history in order to apply them to modern situations. See A. Grafton and L. Jardine, “ ‘Studied for Action’: How Gabriel Harvey Read His Livy,” Past & Present 129.1 (1990), 30–78. 56  A. Kunin, “From the Desk of Anne Clifford,” English Literary History 71.3 (Fall 2004), 604. 57  Ibid., 587.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  149 Her next claim, that histories only taught her that human folly has failed to diminish over time, reveals her understanding of what these texts were meant to do. A term often used to describe historical writings from classical antiquity, or those that take them as models, histories were written to provide readers with exempla. As Bart Van Es puts it, “[e]xeplum, rhetoric, and politic statecraft: these are the staples of the reception of early modern historiography in Renaissance England.”58 Timothy Hampton explains that these humanist texts aided in the “creation of norms of behavior” by “setting forth the deeds of the exemplar.”59 Grafton has shown how, for Italian historians and readers (and later for English ones), history served a “pedagogical function;” it was a “source of moral prin­ ciples exemplified in action,” and noblemen such as Leonello d’Este and his friends were reported to have invoked classical models for action drawn from these his­tor­ies whenever possible.60 In his mid-fifteenth-century Gesta Ferdinandi Regis Aragonum, Lorenzo Valla explained that the writing and reading of classical his­tor­ies taught decorum, or “how to work out the ways of acting and speaking that were appropriate in a particular situation, and to particular actors.”61 As Grafton argues, history was one the best places to learn decorum, where “the ­protocols of rhetoric . . . met those of moral philosophy and political prudence.”62 By contrast, in Whitney’s view, histories make poor material for “goal-oriented” reading, that is, reading for the purpose of learning military strategies; developing a “moral” and “politique” orientation; or constructing political theories that would explain contemporary circumstances and how to respond to them.63 The humanist theory of reading and writing the past is almost proto-Whiggish in its belief in linear progress. Whitney deems this theory inadequate. Instead of learning from past triumphs and failures, she finds that we “folow them in every wicked crime” (10).64 In commonplaces in general, and in Plat’s book in particular, by contrast, she discovers the potential for the type of connection to the past that she desires instead. Perhaps it is precisely because the commonplace book takes commonplaces out of context that they appeal to her. Since, as Erasmus explains in 58 B.  Van Es, “Historiography and Biography,” in The Oxford History of Classical Reception in English Literature, Vol. 2, eds. P. Cheney and P. Hardie (Oxford: Oxford University Press, 2015), 435. 59 T. Hampton, Writing From History (Ithaca: Cornell University Press, 1990), 19. 60 A.  Grafton, What Was History? The Art of History in Early Modern Europe (Cambridge: Cambridge University Press, 2007), 50, 67. 61  Ibid., 36-7. 62  Ibid. Grafton notes that this was a way that the historian could make his work as “general” as the poet’s. 63  Grafton and Jardine, 51. 64  This is not to say that all early modern historians and “facilitators” uncritically accepted the goals of humanist historiography. Indeed, as Timothy Hampton has shown, many of them were troubled especially by the heterogeneity of the past. Even Jean Bodin eventually rejected no less than Alexander the Great as an exemplar precisely because he could not create out of Alexander’s life a coherent narrative that would demonstrate “consistent virtue” (Hampton, 39). But with her critique, Whitney goes even further: she condemns the entire project of humanist historiography.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

150  Custom, Common Law, and the Constitution De Copia, commonplaces can be used to prove multiple things—even the thing and its opposite—it is the context that provides the lesson we supposedly learn.65 Stripped of context, though, a commonplace does not have to conform to, and try and fail to make us conform to, a narrative of human progress. This movement away from linear progression also explains why Whitney has chosen Plat as her model, even as she was likely familiar with Udall’s and Taverner’s translations of Erasmus.66 While, as I have discussed, the metaphor of the commonplace book as a garden was not an unusual one, the fact that Plat takes it so far and insists on its status as real property, as we will see, enables a different relationship to the past. As critics have shown, the metaphor of the garden affords Whitney exceptional flexibility as a woman writer. Meredith Skura argues that by literalizing the metaphor, she “refashions Plat’s conventional language into specific description” of her life in London, thus creating “new possibilities for autobiography.”67 Trettien argues that Whitney transforms Plat’s metaphor from ornamental in nature to constitutive of her own authorship. Whereas Plat portrays the flowers from his garden as adorning Lady Anne Dudley’s body, Whitney turns “ ‘gathering’ [into] a form of authorship,” and the process of “remixing and remediating” transforms from a way to read to a way to write: “The role of the idealized female reader of miscellanies creates a space for Whitney to construct an identity as a female writer.”68 To this I would add, the flexible temporality of commonplaces, which Erasmus described in his Adages as belonging to all epochs, allows her, as a woman and a worker, access to the past in ways that other humanist reading (and writing) practices did not.69 65 D.  Erasmus, Adages: I i 1–I v 100, in The Collected Works of Erasmus, Vol. XXXI, trans. M.M. Phillips, ed. R.A.B. Raynor (Toronto: University of Toronto Press, 1982), 20; D.  Erasmus, De Copia, in The Collected Works of Erasmus, Vol. XXIV, ed. C.R. Thompson (Toronto: University of Toronto Press, 1978), 639. 66  Although I do not want to rule out the possibility that Whitney read Latin, the classical references in her dedicatory letter to George Mainwaring were likely taken from these translations. The stories about Antipater and Diogenes that she references are probably taken from the English translation of Udall’s translation of Erasmus’s Apophthegmata, especially since the Life of Diogenes was not translated until the seventeenth century. Erasmus, Apophthegmata, 138v–139r, 298v–299r. I am grateful to Thomas Ward for drawing my attention to the appearance of these stories in these translations. Explaining the humble nature of her gift to Mainwairing, that is, her selection of Plat’s proverbs, she compares herself to “that poor Fellow which went into an others ground for his water” (27–8), but whose gift Darius accepted nonetheless. Here she invokes, though reconfigures, the adage “Munerum animus optimus [est]” [Goodwill is the best of gifts], as explained by Erasmus in his Adages (trans. Richard Taverner, 1539): “The mynde of gyftes is best, that is to saye, In the gyftes or presentes of freendes the price or value of the thyng that is sent is not to be considered, but the mynde rather of the sender, as the renoumed kyng Xerxes receyued thankefully of an vplandish man an handful of water.” Erasmus, Prouerbes or Adagies, trans. R.  Taverner (London: R.  Banks, 1539), D2r. This story also appears in one of Taverner’s other printed commonplace books, The Second Book of the Garden of Wisdom (London; R. Banks, 1542), 13v. Although Erasmus describes Xerxes’s gratitude here rather than Darius’s, he was still likely her source, since he was English readers’ main access to these stories, especially before the seventeenth century. 67 M.A.  Skura, Tudor Autobiography: Listening for Inwardness (Chicago: University of Chicago Press, 2008), 156–7. 68  Trettien, 514–15. 69  See Chapter 2, section I.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  151 Moreover, by extending Plat’s metaphor of the commonplace book as a garden that is real property, Whitney is able to draw upon the temporality of custom and common law. As I discussed in Chapter 2, the discourse of common law and the commonplace resembled each other in their reliance upon custom for their authority and structure.70 In Whitney’s hands, this similarity means that all of the commonplaces coexist in one space and time, as past, present, and future become interwoven together. This temporality, connected to real property, enables Whitney to treat commonplaces as engendering a more promising anti-historicizing gesture than the histories, ironically, implied. The garden replaces the punctured fantasy that one could simply apply one historical situation to another in order to ameliorate the present, to make it work better than the past. By contrast, the territorialized past requires no such progress narrative to be imposed upon it in order to be efficacious. Thus, while the garden may not solve the problem of ­repetition that Whitney identified in the histories, it does offer the poet the chance to reframe it. This is an especially important possibility for a female poet who seeks to enter a male tradition. Printed books about the history of common law prop up the temporality that Whitney uses to constitute her authority. These books, some of them published by the same printers as commonplace books, emphasized common law’s continuity. Richard Fabyan’s Chronicles of England and France (1516; 1533) told parallel his­ tor­ies of England and France that were collected from a range of medieval sources, including Geoffrey of Monmouth and the Venerable Bede, most of which had never been in print before.71 Fabyan traced common law all the way back to the ancient king Malmatius and the Saxon king Alured. He describes the postNorman Conquest King Henry III as making use of “Seynt Edwardes lawys,” as well as the upheaval that King John caused when he “wolde not holde the lawes of seynt Edwarde.”72 The king’s demurral resulted in “dyssencion with hys lordis, in so moche, that great people were reysed on eyther parties.”73 The abridgements and summaries that were based on Fabyan’s Chronicles (and others) captured an even larger audience. As these continued to be revised and expanded through the century, they included more and more information about the continuity of common law across the Norman Conquest. Richard Grafton, in his Abridgement of the Chronicles of England (1562), recounted just such a history: Thys man was called Holye king Edward, who being borne a Norman, by hys mothers side, and holpen to thys land by Willam Conquerours meanes, liued 70  See Chapter 2, section I. 71 Fabyan’s Chronicles were printed in 1516 by Richard Pynson and in 1533 by William Rastell, the father of John Rastell, who printed many of the popularizations of common law. R. Fabyan, “Preface,” in The New Chronicles of England and France, in Two Parts, ed. H. Ellis (London: F.C. and J. Rivington, et. al., 1811), xiii–xv. 72  Ibid., 253. 73  Ibid., 320.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

152  Custom, Common Law, and the Constitution most verteously and in continuall peace all his life long, established holy lawes, the whiche unto this daye, are called kyng Edwards lawes, or the common lawes of England. For the mayntenance whereof, when by the Normaynes they wer after taken away, the people was much greeued, and by force sought to haue them agayne as most beneficiall for the common weale.74

Similarly, he begins the section of Henry I’s life with the restoration of common law: “This Henrye in his first yere, caused all olde and untrue measures to be ­broken, and made a yard of the length of his owne arme, and he restored agayn the lawes of King Edward into this realme.”75 Later editions included the story of the county of Kent’s resisting William the Conqueror at the battle of Swanscombe Down, as does John Stow in A Summarie of English Chronicles. Finally, in 1567, Fortescue’s foundational text, De Laudibus Legum Angliae, was published for the first time. Tottel, its publisher, chose to bring it out in a bilingual Latin and English edition. The translator, Robert Mulcaster, explains to the reader that after finding “so riche a Treasure in so simple an habite,” he decided to translate Fortescue’s work so that “all menne” could “haue parte of my delight” (emphasis mine).76 A Learned Commendation of the Politique Lawes of England, as the book was called, made Fortescue’s ideas about law more widely available than they ever had been before, including those about England’s customs. Readers who knew only English could now read that despite the conquests by “seueral nations & of theire kinges this roialme was still ruled withe the selfe same ­customes that it is nowe gouerned witheall.” They could feel confident not only that “the Englyshe customes are verye good, yea of all other the verye best,” but also that their customs were even more ancient than the celebrated Roman civil and Venetian laws.77 Whitney’s poem should be understood in the context of these newly available historical and legal texts about custom. She recognizes and takes seriously what legal temporality can offer, that is, a way of making the past present to the extent that even a female writer can access and make use of it to create her own authorial persona. Given the limits on female ownership in common law, it is remarkable that a woman writer is able to capitalize on its temporality so effectively. It is all the more ironic that what enables her to do so is the highly conventional ­metaphor of the commonplace book as garden.

74 R. Grafton, Abridgement, 30r. 75  Ibid., 37r. 76  R. Mulcaster, “To The Right Worshipfull Ihon Walsh, Esquire,” in A Learned Commendation of the Politique Lawes of England (London: Richard Tottel, 1567), A2r. 77  Ibid., 38r–39v.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  153

IV.  Whitney’s Poetics of the Commonplace The actual commonplaces in A Sweet Nosgay are chronically understudied. They have received far less attention than “the Wyll,” and even than the prefatory ma­ter­ials. By excluding them entirely from her modern edition, Danielle Clarke implies that they cannot properly be considered Whitney’s writing. This might be the case if Whitney’s claims throughout her dedicatory letter to George Mainwaring and poem to the reader were true. In these, Whitney insists that the labor she put into the volume is that of a curator. She has gathered flowers, or selected those commonplaces that she finds suitable for her own situation—and encourages others to do the same (“Letter” 3–4; “The Auctor” ll. 70–2). Yet, in fact, rather than reproducing Plat’s sentences verbatim, Whitney transforms them into little poems or “posies,” a term she uses in the subtitle to her collection.78 Her interest in the commonplace’s problem of context helps makes sense of a disjuncture between the way that Whitney describes the commonplace book section of her volume and how it actually appears. Her unusual reconfiguration of classical commonplaces, even ones that are already in translation, becomes a means of engendering a poetry and poetics of the commonplace that registers the tensions within the concept of the common. Each commonplace poem in A Sweet Nosgay is four lines long and composed in ballad meter. At times this verse form requires her to add new language, and even new ideas, to Plat’s mostly pithy renderings of Seneca. For example, Plat writes, “Prease not too hie, for fear of a fall,” a warning not to hazard too much.79 Whitney’s versification expands upon this idea: Prease not too hie, but haue regarde  yf thou would chaunce to fall:  From hie might kyl, from mean might hurt  alow stand sure thou shall.80

Her version explains that a fall from high would be fatal, while from the middle might lead to an injury, but one is on surest ground when one stands “alow.” While this may be gratuitous, it places an emphasis on the unexpected power of being “low.” She sacrifices fidelity to the “original” in order to sustain her verse form. Whereas the commonplace book was usually meant to offer a range of ­stylistic examples from which the writer or orator could draw, Whitney imposes a uniform style upon it. She likewise imposes, or attempts to impose, a unitary ethics. Whitney excludes the most misogynistic of Plat’s 400-odd proverbs and focuses her attention mainly 78  Whitney, B2r.

79  Plat, 5r.

80  Whitney, B7r.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

154  Custom, Common Law, and the Constitution on those that have to do with economics. But she also seeks to resolve tensions between different commonplaces. Proverbs 8 and 9 in Plat’s collection pose a ­particular conundrum. In his prose form, they read: “Care not how many, but howe good things thou dost possesse,” followed by “So increase thy stocke, that it be not done with anothers undoing.”81 Where the first commonplace discourages the accumulation of worldly goods, the second one encourages it. Whitney revises them as follows: The IX. Care not how many things thou hast But haue a great regarde: That they be good, for quantytie, Doth merite no rewarde. The X. Yet so thou must increase thy stock As cleare thine owne it be: And neither fleece thy friend, nor seke Thy neighbours beggerye.82

To the “so” of Plat’s commonplace, which ignores the contradiction between the two, she adds another coordinating conjunction, “yet,” which registers and at least grammatically resolves it. Whitney could have omitted one of these commonplaces and thus erased the contradiction, but she chooses to include them both. By homing in instead on the precise relationship between commonplaces, she suggests that proverbs provide a context for one another. For all of the tensions that Whitney’s poetry reveals elsewhere, in her commonplaces Whitney stabilizes what Ann Moss has called an inherently ­ “unstable text.”83 Erasmus’s description of how to compile a commonplace book in De Copia attests to the fragmentary nature of this type of collection. He begins the section entitled “Method of Collecting Exempla” by advising the use of the commonplace book to those students who have “resolved to read through every type of writer.”84 The commonplace book should be endlessly expansive, representing every possible kind of writing. The collection of quotations is intended to be heterogeneous, to offer a range of styles that writers and orators might learn from and imitate. Mary Thomas Crane describes the commonplace book as a “gathering of textual fragments,” and, extending the metaphor of the garden, Richard Halpern argues that commonplace books “decomposed” their source

81  Plat, B1r. 82  Whitney, B3r. 83 A.  Moss, Printed Commonplace-Books and the Structuring of Renaissance Thought (Oxford: Clarendon Press, 1996), 46. 84  Ibid., 87; emphasis mine.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  155 texts.85 Even though critics sometimes treat the commonplace book as a ­programmatic form, Erasmus saw them as a way to encompass a range of opinions that one could draw on at will, depending upon one’s audience.86 In fact, adhering to one overarching philosophy in a commonplace would be detrimental to the rhetorical skills they were meant to foster. Contemporary compilers of commonplaces might have seen Whitney’s plea to her readers at the end of the commonplace section of her volume as uniquely perverse: “I must request you spoyle them not,/Nor doo in peeces teare them.”87 Unsatisfied with the original context—and perhaps recognizing the insufficiency of any context—Whitney transforms the commonplace into its own independent poetic form. Of course, all compilers of commonplace books recognize the independence of sententiae to some extent. After all, they must be detachable from a particular situation. Erasmus explains that the Greek term for proverb, paroimia, derives from the term “oimos” or “road” because it travels everywhere; the Latin, adagium, refers to the fact that a commonplace is “passed round.”88 These terms emphasize not only its widespread popularity but also its applicability to multiple situations or contexts. The collection of commonplaces, in fact, was intended as a way station for the production of new writing or orations, not as an end in and of itself. Hythloday and Thomas More’s argument about how to behave as a counselor to the king in Book I of Utopia offers a masterful example of this. But Whitney gathers commonplaces from another commonplace book, and then refuses to take the next step or even to make that step possible. That is, as intertwined units of poetry, Whitney’s commonplaces cannot be easily extracted for new writing. This unitary form and ethos of the commonplaces might seem to support the interpretation of Whitney as a writer concerned with controlling her own property. But it is important to remember Whitney’s suspicion of the possibility that a commonplace could be owned as well as the mocking tone of her descriptions of “Plat his plot” in “The Auctor to the Reader.” Instead of taking Plat as her model, her reconfiguration of the commonplaces into her own poems only serves to reveal how property relations can inexorably shape even a rhetorical figure defined by its commonality. They thus render explicit via their form the tension that More had made implicit with the absence of proverbs in Book II of Utopia.89

85  Crane, 171; R. Halpern, The Poetics of Primitive Accumulation: English Renaissance Culture and the Genealogy of Capital (Ithaca and London: Cornell University Press, 1991), 47. Although as we have seen in Chapter 2, section I, the idea of a source text is a contentious one. 86  Adages, XXXI, 20; De Copia, 639. On the programmatic nature of the commonplace, see Halperin, 47; Moss, v. 87  Whitney, C5v. 88 Erasmus, Adages, XXXI, 4–5. 89  See Chapter 2, section IV.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

156  Custom, Common Law, and the Constitution

V.  The Future of Custom in “the Wyll” Whitney’s engagement with custom brings us to the limits of its commonality. Yet the volume ends on a very different note. Bartolovich points out that “the ­communalizing gesture” of redistributing Plat’s commonplaces to all readers is “repeated” in “the Wyll.”90 But the relationship between the two poems is even closer than she allows: the poetic insights of “The Auctor to the Reader” enable “the Wyll,” specifically its particular relationship to the future. It is Whitney’s engagement with the temporal dimension of custom and the commonplace trad­ ition that allows her to depict what Bartolovich describes as a utopic future. That is, in “The Auctor to the Reader” common law’s temporality is understood as a way to reinvest in and revitalize the present with regard to her own position as a poet. For Whitney, and she suggests for others, the labor of collection, of popularization, is not simply about connecting with the past. It is also about the pol­it­ ics of the present. In “the Wyll” she tries out this idea on the ground, so to speak. If readers like Gabriel Harvey sought to provide a similar perspective to their elite employers, Whitney offers it in a more radical iteration to her readers. The ­tem­poral understanding of property that her poem enacts provides the groundwork for a progressive politics that, in turn, becomes the basis for the future in her ­volume’s final poem. We may see this most conspicuously in her redistribution of London to its inhabitants, but it is also present in an odd moment in “the Wyll,” one that seems to cut against the will’s future orientation. Wendy Wall has argued that the legacy or will’s temporality makes it a useful genre for women writers: “[The will] is written in the present tense and includes its imagined enactment in the future, but it is authorized by a past voice.” A woman writer could capitalize on this time frame to “express, sanctify, and preserve . . . her immediate desires,” while mitigating the threat of her public assertion of authority by ensuring her immediate departure or erasure as a subject.91 Wall sees these dynamics at work in Whitney’s poem, but this is not quite an accurate account of her particular use of the will form. At a crucial moment in the poem, Whitney undoes this temporal dynamic by playing with the distinction between the oral and written will. In his Institutions, Taverner explains that there “be two sortes of testamentes. The one is called testamentum scriptum, that is, a wrytten testamente, or a laste wyll by ­wrytynge, and the other is called testamentum nuncupatyue, which is when a manne doeth expresse by mouthe his last will and testament, without writing.” In the ­latter case, neighbors are called upon to hear the will and act as witnesses. While both written and unwritten wills are valid, they are suitable to different 90  Bartolovich, 415–16. 91 W. Wall, The Imprint of Gender: Authorship and Publication in the English Renaissance (Ithaca, NY: Cornell University Press, 1993), 285–6.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Cultivating Custom  157 occasions: a written will is made at leisure, while an oral one is what “for most part men used to do when for feare of sodennes of death, they dare not abide the writing of their wyll.”92 At the start of the poem, Whitney identifies her will as a written one: “I whole in body, and in minde/but very weake in Purse:/Doo make, and write my Testament/for feare it will be wurse” (1–4). She reminds us of her will’s written status at the poem’s conclusion as well, calling upon the tools of its inscription to act as witnesses: This, xx of October, I, in ANNO DOMINI: A Thousand: v. hundred seventy three as Alminacks descry Did write this Wyll with mine owne hand and it to London gave: In witnes of the standers by, whose names yf you wyll have. Paper, Pen, and Standish were: at that same present by.

(313–22)

A written will places its author in the past, and, thus in the fiction of Whitney’s poem, we are reading the will after she has died, or, more precisely, departed London. Yet, in the middle of her bequests to London’s less fortunate citizens, the poem’s time frame abruptly shifts. She suddenly addresses an audience: “What makes you standers by to smile,/and laugh so in your sleeve:/I thinke it is, because that I/ to Ludgate nothing geve” (172–3). The will is now figured as an oral performance by Whitney herself in the present moment rather than a performance delayed to a future point in time when Whitney is absent. In the lines that follow, she returns us to the future, but not quite in the way the will form would lead us to expect. In fact, Whitney does have a bequest for Ludgate: [H]ere is no place of jest: I dyd reserve, that for my selfe, yf I my health possest, And ever came in credit so a debtor for to bee. When dayes of paiment did approch, I thither meant to flee.

92  Taverner, fol. 60v.

(178–82)

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

158  Custom, Common Law, and the Constitution In the midst of a poem whose meaning depends upon Whitney’s departure, she imagines a future in which she might remain in London. In a poem that uses a legal form that seeks to secure the future, she interjects not only the present, but also a moment of radical uncertainty about the future and her own place in it. With this shift, Whitney undermines the distinction between past and present, as well as present and future. If “The Auctor to the Reader” enjoined us to recognize that the past is present, “the Wyll” asks us to grapple with the idea that the future may be present as well. It is custom—and her recognition of the possibilities its temporality offers—that allows her to do so. Rather than only looking forward to a time when London could become a utopia (and asking us to participate in making it so, as Bartolovich astutely points out, by choosing the form of the will),93 Whitney asks us to think about a present by maintaining a sense of temporal continuity. Moreover, by introducing the possibility that the speaker might remain in the city and flee to Ludgate, Whitney could be included in what J.K. Barret has recently described as an “emerging literary culture not only keenly alert to conceptions of time, but also routinely engaged with possibility and ­contingency in place of inevitable outcomes.”94 The cross-fertilization of their consciousness of the past with that of the future allowed them to “experiment[ ] with their conception of the present moment and consider[ ] the potential of its reach.”95 The “possible future,” to borrow Barret’s term,96 is not necessarily a cheerful one in which Whitney triumphantly returns to the city. But this is in keeping not only with her doubts about the law that I’ve been tracing but also with the middle of her poem, in which she shifts gears to a series of bequests very different in tone: to the poor of London, she leaves debtors’ prisons (147); to the criminals, a “Nag” to “ease” their trip up Holborn Hill, where hangings took place (159); and, to the mad, Bedlam (225). These mock bequests satirize the way that charity maintains structures of oppression.97 Nevertheless, by building contingency into the will, Whitney reminds readers of the contingency of the future itself, transforming the will from a document that sustains the status quo into one that enables her readers to imagine the possibility of change. Although never mentioned, custom suffuses Whitney’s poetry and its interest in property relations, from the garden to the city. Throughout the volume, she engages with the tensions that emerge from the commonality of common law, tensions either unnoticed or unremarked upon by her male contemporaries. In both her embrace and her skepticism, she shows us how this legal concept could make space for female literary production, one that engages with the social world and the possibility of cultivating its future.

93  Bartolovich, 420, 428. 94 J.K.  Barret, Untold Futures: Time and Literary Culture in Renaissance England (Ithaca, NY: Cornell University Press, 2016), 22. 95  Ibid., 9–10. 96  Ibid., 18. 97  Bartolovich, 423.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

6

Forgetting Custom? Rebellion, Revolution, and Narratio in Sir Thomas More and Shakespeare’s Hamlet

After a long invective against plays, actors, and playgoing in The School of Abuse (1579), Stephen Gosson concedes that “as some of the Players are farre from abuse: so some of their Playes are without rebuke.”1 Among them he lists two that are now lost: Ptolemy, which dramatizes “howe seditious estates, with their owne devises . . . and rebellious commons in their owne snares are ouerthrowne,” and his own Catiline’s Conspiracies, which “shows the rewarde of traytors, . . . and the necessary gouernment of learned men.”2 “These Playes are good playes and sweete playes,” Gosson admits, because they reveal the dangers of rebellion.3 “Yet,” he continues, even they are “not fit for euery mans dyet: neither ought they ­commonly to bee shewen.”4 Although he offers no reason for this injunction, moving on to apologize instead for his past playwriting sins, Gosson implies that even when a play educates its audience in the just deserts of rebels and traitors, it is still too dangerous to stage political treacheries in the first place. This proves especially problematic with a broad audience, such as existed in the early modern commercial theater. Indeed, it is the problem that Anthony Munday faced when he submitted the first version, or the Original Text, of The Book of Sir Thomas More (c.1600) to Edmund Tilney, the Master of Revels.5 Tilney particularly objected to the play’s representation of Ill May Day 1517, a riot by London citizens against the presence of aliens in their city. In a note at the start of the only surviving manuscript of the play, he commands: “Leave out the insurrection wholly.”6 This turns out to be quite a demanding task since the insurrection occupies a full third of the play.7 In 1 S. Gosson, The School of Abuse, ed. J.P. Collier (London: F. Shorbel, 1841), 29. 2  Ibid., 30. 3 Ibid. 4 Ibid. 5  John Jowett makes the case for c. 1600, while other critics have argued for earlier dates, c. 1593 or c. 1595. Munday may have collaborated with Henry Chettle on the original version of this play. J. Jowett, ed., Sir Thomas More (London: Arden Shakespeare, 2011), 422–24, 430–1. All citations are to this edition, and future quotations from the play will be cited in-text. Scene 6.1–165 was added by Shakespeare. 6  Jowett, 139. 7  Scott McMillin and others divide the play into three parts: (1) The Ill May Day scenes; (2) scenes from More’s private life after he has been promoted to Lord Chancellor; and (3) More’s refusal to sign Custom, Common Law, and the Constitution of English Renaissance Literature. Stephanie Elsky, Oxford University Press (2020). © Stephanie Elsky. DOI: 10.1093/oso/9780198861430.001.0001

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

160  Custom, Common Law, and the Constitution fact, the 1603–4 revisions (or “Additions,” as modern editors refer to them) were undertaken by no fewer than four playwrights—Henry Chettle, Thomas Heywood, William Shakespeare, and Thomas Dekker—as well as that of an unknown playhouse scribe who coordinated their changes.8 In this chapter, I  explore Shakespeare’s attempts to grapple with the controversial undertaking of  staging rebellion, that is, moments of (attempted) political change, in his ­revisions to The Book of Sir Thomas More and, at around the same time, in the ­composition of Hamlet. Thus, just as we began with Thomas More, so will we end with him. But this is More in a very different context, not found on the pages of elite Latin texts but rather on the popular stage. Although this chapter builds upon the work of recent scholars’ recognition of Shakespearean drama’s formal affinities with classical drama,9 it shows how Shakespeare uses these resources much as Whitney had the classical commonplace, with a particular demotic bent. In Sir Thomas More, Tilney did not leave his playwright without guidance. In that same note, he advises Munday to “begin with Sir Thomas More at the Mayor’s sessions, with a report afterwards of his good service done being Sheriff of London upon a mutiny against the Lombards—only by a short report, and not otherwise, at your own perils” (emphasis mine).10 This advice, or mandate, was completely ignored in the revision process: the rebellion remained.11 Instead, I  argue, in the revisions Shakespeare made to these scenes (“Addition II”), he turned to a different strategy for rendering the citizen’s revolt more palatable: he frames rebellion in terms of a negotiation between custom and innovation. This framework, I further argue, allows us to understand the rebel leader’s later use of a proverb as a means of recuperating the relationship of rebellion to custom. the King’s articles along with its consequences. S. McMillin, The Elizabethan Theatre and the Book of Sir Thomas More (Ithaca: Cornell University Press, 1987), 20–3. 8  According to W.W. Greg, the surviving manuscript (BL Harleian MS 7368) evinces the presence of at least seven hands: that of the original playwright, Munday, who copied out the full play text from a draft that is now lost; the four playwrights who participated in the revisions (Henry Chettle [Hand A], Thomas Heywood [Hand B], William Shakespeare [Hand D], and Thomas Dekker [Hand E]); a playhouse scribe who coordinated the changes (Hand C); and the Master of Revels, Edward Tilney, to whose censorship notes the rest respond (qted. in Jowett, 6). For an extensive account of the ­paleographic history of and debates about the play, see Jowett, 344–458. In this chapter, I follow McMillin’s influential argument that despite this proliferation of hands, the play should be understood as a “coherent theatrical document” in its own right and not just as a set of “paleographical clues” (17). 9 On Shakespeare’s relationship to Greek sources, see T.  Pollard, “Romancing the Greeks: Cymbeline’s Genres and Models,” in How to Do Things with Shakespeare, ed. L. Maguire (Oxford: Blackwell, 2007), 34–53 and T. Pollard, “What’s Hecuba to Shakespeare?” Renaissance Quarterly 65.4 (Winter 2012), 1060–93. On the classical past and Shakespeare’s passions, see L.  Enterline, Shakespeare’s Schoolroom (Philadelphia: University of Pennsylvania Press, 2012). 10 Jowett, 139. Jowett suggests that Tilney’s command to replace the original “straunger” and “ffrencheman” with Lombards was made to avoid insulting the French ambassador. Unlike the Huguenot population in England, which was substantial, the Lombards were a much smaller and more recent immigrant group (Jowett, 166 nn.49, 53). 11  On the different theories as to why the playwrights disregarded Tilney’s censorship notes, see Jowett, 358–9.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  161 When More himself reaches the scaffold at the play’s end, he too turns to this rhetorical figure, thus including himself, at the culmination of his resistance, as a member of the commons that can be imagined as separate from the king. In this way, the play also recuperates the Catholic More as a heroic figure for Protestant England, and, in the course of doing so, justifies political resistance to the monarch. If Shakespeare (and other collaborators on the revision) ignored the strategy of replacing representation with report in Sir Thomas More, he embraced it fully in Hamlet, composed c.1600 and first published in 1603. Rebellion in Hamlet is a much briefer affair, taking place within the compass of twenty lines. Upon Laertes’s return from France, he discovers that his father Polonius has been ­murdered and buried without proper funereal rites. Claudius recognizes that his subjects have already disapproved of this violation of aristocratic rites and explains to Gertrude: the people [are] muddied, Thick and unwholesome in thoughts and whispers For good Polonius’s death, and we have done but greenly In hugger-mugger to inter him.12

Taking advantage of the people’s muddiness, so to speak, Laertes leads them in a revolt. They storm the gates of Claudius’s castle and attempt to elect Laertes ruler: “Choose we: Laertes shall be king” (4.5.107). Yet we do not hear the people’s astonishing election from their own mouths but rather from an anonymous messenger. In other words, in a choice that Tilney might have approved, ­ Shakespeare reports rather than represents. In seeking to stage rebellion on the eve of the seven­teenth century, Shakespeare deploys the same strategy that Philip Sidney had used twenty years earlier: the absent performance.13 This use of report, or narratio, to replace performance, along with the rebellion’s utter failure, seems to make it a less than auspicious site for the contemplation of political promise in the play. Julia Lupton rightly calls it the “specter of election gone wrong,” viewing it as a failed precursor to the more vital form of Hamlet’s election of Fortinbras in his, and the play’s, final moments.14 Ironically, however, the content of the messenger’s report, particularly its invocation of ­custom, does not shut down the rebellion’s political life. Instead the messenger inadvertently renders it even more radical. In particular, this chapter argues, Shakespeare’s use of custom in this moment of narration transforms rebellion 12 W. Shakespeare, Hamlet, eds. A. Thompson and N. Taylor (London: Arden, 2006), 4.5.81–4. All citations are from this edition, and all subsequent quotations will be cited in-text. 13  See Chapter 4, section IV. 14 J. Lupton, Thinking with Shakespeare: Essays on Politics and Life (Chicago: University of Chicago Press, 2011), 91.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

162  Custom, Common Law, and the Constitution into revolution. Revolution is a concept that scholars usually associate with the eighteenth century, but here my intention is not to move its origins unaltered to an earlier moment. Rather, recognizing its role in Hamlet changes our conception of revolution itself. Instead of completely antithetical, as they are usually understood to be, custom and revolution can be endemic to one another. Thus, although we generally assume that revolution engenders a period break, the multivalent temporality of custom within the messenger’s speech invites us to view it otherwise: To revolutionize is not always to periodize.

I.  The Horrible Shape of Innovation Anthony Munday’s representation of Ill May Day 1517 in the Original Text of Sir Thomas More takes liberties with the historical account, particularly with Thomas More’s role in the events. First, Munday compresses More’s career so that his appointments to the Privy Counsel and to Lord Chancellor are direct rewards for quelling the riots, rather than occurring years later. Second, while according to Holinshed’s Chronicles, More’s effort to calm the people was met with stone, bat, and hot-water throwing, Munday presents him as eminently persuasive; his speech to the people culminates in their obedience.15 Ill May Day was not a shining moment in More’s career, yet Munday depicts him as the heroic figure at its center. While one might have expected Tilney to take issue with this celebration of a Catholic martyr who defied his king, Tilney is far more concerned with the representation of insurrection. Perhaps this is because More had by this point become a familiar folk figure and, although some Protestant writers condemned him, he was fondly remembered as a civic dignitary and humanist writer.16 As mentioned already, instead of excising these scenes, the playwrights augmented them. Shakespeare, who has been identified with Hand D, makes his major ­contributions to this section of the play, and one important way to understand his revisions is as a further condemnation of the people’s unrest. In rewriting the moment of More’s initial encounter with the citizens, Shakespeare has More begin to build an argument about the tension between ­custom and rebellion. He makes the case that their actions are irreconcilable with the linear course of human life and reproduction, warning them that rebellion sets a dangerous precedent and inviting them to imagine what would have ­happened “had there such fellows lived when you were babes/That could have topped the peace as now you would.”17 “The bloody times,” he warns, “[c]ould not

15  Jowett, 33–5, 478–9. 16  G.  Woods, “ ‘Strange Discourse’: The Controversial Subject of Sir Thomas More,” Renaissance Drama 39.1 (2011), 3. 17  Jowett, 6.73–4.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  163 have brought you to the state of men” (6.76–7). Even further, the consequences of the rebellion would be far more devastating to the citizens than to the strangers who would be forced to pack their bags and leave: What had you got? I’ll tell you: you had taught How insolence and strong hand should prevail, How order should be quelled. And by this pattern Not one of you should live an aged man; For other ruffians, as their fancies wrought, With selfsame hand, self reasons, and self right, Would shark on you, and men, like ravenous fishes, Would feed on one another.

(6.91–8)

If the protestors would not have survived the past, More warns, neither would they survive the future. Should they succeed, all they will have accomplished is teaching future “ruffians” how to disrupt order whenever fancy struck them. The incongruity of applying the verb “to quell” to order itself, rather than to disorder, evokes the inversions of rebellion. Building upon both the character More’s earlier comparison of the rebels to a swollen river (6.47) and perhaps the author More’s famous image of man-eating sheep in Utopia as well, this passage portrays future rebels as predatory, even cannibalistic, fish who consume one another.18 The “pattern” that the rebels engender would result not only in their early deaths—“not one of you should live an aged man”—but also in the end of mankind. In other words, not only would they set a bad precedent; they also would make precedent impossible altogether. Like custom, patterns are meant to perpetuate the future in the image of the present. This pattern, however, would foreclose the possibility of a future. ­ Rebellion both breaks from and cannot constitute a precedent for the future. It is not pol­it­ic­al­ly viable because it cannot become a custom. Although this line of reasoning seems to convince at least two rebels, who respond “that’s as true as the gospel” and “this’ a sound fellow, I tell you,” More presses on, representing their rebellion itself as a break with custom (6.99–101). Invoking the divine nature of kingship, he tells them that rebellion is a sin “which oft th’apostle did forewarn us of,/Urging obedience to authority,” and that, as a result, they are “in arms ’gainst God” (6.106–9). While this warning is interesting with regard to More himself because the relationship between earthly and divine authority is precisely what he will struggle with in the final third of the play, the terms in which it is framed are also evocative for the rebels. More prefaces his warning by telling them: “if you will mark/You shall perceive how horrible a 18 T. More, Utopia: Latin Text and English Translation, eds. G. Logan and R. Adams (Cambridge: Cambridge University Press, 1995), 67.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

164  Custom, Common Law, and the Constitution shape/Your innovation bears” (6.103–5). The term innovation was sometimes used as a synonym for insurrection in this period, as when Henry IV accuses the Earl of Worcester, a rebel leader, of “hurly-burly innovation” in Shakespeare’s 1 Henry IV.19 But the speeches that precede this “supposition,” as More describes it, emphasize its other common connotation as well, the introduction of something new. Shakespeare appeals to the notion that the “multitude love innovation,” one expressed by John Hayward in The Second Part of the Life and Raigne of Henry IIII.20 Moreover, the lines engender a productive sense of confusion, at least from the perspective of someone who seeks to contain rebellion. The word “shape” could refer either to the many-headed mob, which would place their material bodies into the conceptual framework of innovation, or it could refer to rebellion itself, thus effecting the reverse: transforming it from a concept into an object. The latter interpretation introduces a moment of temporal or generational confusion, since it then becomes unclear how to read the verb “to bear.” Does innovation itself inhabit a horrible shape or does it give birth to one? The rebels, in More’s account, begin to sound like Shakespeare’s strange and chronologically confounding image for the poet’s frustrated attempt to create something new in Sonnet 59: If their bee nothing new, but that which is, Hath beene before, how are our braines beguild, Which laboring for inuention beare amisse The second burthen of a former child?21

With a similar ambiguity between origin and progeny, More conveys how the horror of rebellion resides in the horror of temporal disorder. Shakespeare represents the citizens’ reaction to temporal disorder as ambivalent. At first, in Heywood’s addition, they revel in their power to modify time. Doll Williamson, a female rebel, responds with glee to Clown Betts’s suggestion that they set the foreigners’ houses on fire: “Ay, for we may as well make bonfires on May Day as at Midsummer. We’ll alter the day in the calendar, and set it down in flaming letters” (4.38–40; Addition II). Although they refer to the use of red ink to mark a holiday on a calendar, the phrase “alter the day” suggests a more profound transformation; the rebellion might have the effect of altering time itself. Later their enthusiasm dampens when, in Shakespeare’s addition, More informs them that their “innovation” counts as a sin. “Marry, God forbid that,” 19 W. Shakespeare, 1 Henry IV, in The Norton Shakespeare, eds. S. Greenblatt, W. Cohen, J. Howard, and K.E. Maus, 2nd ed. (New York and London: W.W. Norton & Co., 1997), 5.1.78. 20 J.  Hayward, The First and Second Parts of The Life and Raigne of Henry IIII, ed. J.  Manning (Cambridge: Cambridge University Press, 1995), 199–200. 21  W. Shakespeare, Sonnet 59, in Shakespeare’s Sonnets, ed. S. Booth (New Haven: Yale University Press, 2000), ll. 1–4.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  165 they reply in unison (6.110). As a result, they agree to give up their cause in return for his promise to procure them a pardon, and their insurrection is brought to a peaceful conclusion. For their part, the rebels accept More’s account of insurrection, that it threatens to sever them from custom, as well as his characterization of it as “innovation.” But why should the rebels share in More’s horror of innovation? It is a charge they could easily refute since their insurrection is clearly conservative in nature. That is, it is framed, both when the rebels speak among themselves and in the petition that they present, in terms of a desire to maintain and restore traditional ­economic and social conditions threatened by the Lombards (1.118–34). Moreover, aren’t rebellions and insurrections supposed to institute something new? Is that not the point? Yet these rebels want no part in any innovation. To understand their reaction, I turn to the discourse of rebellion in the sixteenth and seventeenth ­centuries. In this context, More’s charge of innovation strikes at the heart of the legal bases for rebellion. Numerous historians have shown that large-scale popular rebellions were often framed as attempts to restore ancient customs rather than institute new, more equitable practices. Indeed, each of the three major Tudor rebellions articulated their claims in these terms. Although these significantly predate Sir Thomas More, their memory was reanimated by the historiographical writings of the period with which Shakespeare and others were familiar. During the 1536 Pilgrimage of Grace, rebels swore their allegiance to god, king, and “the ancient laudable ­customes,” warning that “if we may injoye o[u]r olde ancient customes here we have no cause to rise.”22 In 1549, the Norfolk rebels issued demands from their camp at Mousehold Heath that, as Diarmid MacCulloch put it, “wished to recapture . . . an imaginary past.”23 They not only invoked the year 1485, with the demand that rents be reset to the prices they were during “the fyrst yere of the reign of Kyng henry the vijth,” but also reached even further back to 1215, with the demand that the standard weights and measurements dictated by the Magna Carta be upheld, as well as its decree that rivers should be “ffre and comon to all men.”24 So central was custom in the 1569 Northern Rebellion that sought to replace Elizabeth I with the Catholic Mary, Queen of Scots, that Sir Thomas Norton saw fit to warn what he referred to as “the Quenes Maiesties poor 22  Qtd. in A.  Wood, The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge: Cambridge University Press, 2013), 316–17. This phrase is discussed in relationship to tenant rights in M.  Bush, The Pilgrimage of Grace: A Study of the Rebel Armies of October 1536 (Manchester: Manchester University Press, 1996), 256–7, 275–6. For an analysis of the connection between the central religious issues and ideas of the commonwealth in this rebellion, see E.S.  Bush, Popular Politics and the English Reformation (Cambridge: Cambridge University Press, 2003), chapter three. 23  D. MacCulloch, “Kett’s Rebellion in Context,” Past & Present 84 (1979), 49. 24 F.W.  Russell, Kett’s Rebellion in Norfolk (London: Longman, Brown, Green, Longmans, and Roberts, and William Penny, 1859), 48–9, 52.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

166  Custom, Common Law, and the Constitution deceyued subiectes” not to be taken in by the Earls of Northumberland and Westmoreland’s claims that “[t]hey will . . . restore auncient customes and liberties to the church and realme.”25 In other plays, Shakespeare himself references the centrality of custom to rebellion. When, in 2 Henry VI, the people threaten to abandon their rebel leader Jack Cade upon the promise of the king’s pardon, he admonishes them, “I thought ye would never have given out these arms till you had recovered your ancient freedom. But you are all recreants and dastards, and delight to live in slavery to the nobility” (emphasis mine).26 In Richard II, Bolingbroke’s rebellion, which is supported by the people, is also justified in terms of a response to the king’s breach of custom. When Richard seizes John of Gaunt’s lands after his death, the Duke of York warns him: Take Hereford's rights away, and take from Time His charters and his customary rights: Let not tomorrow then ensue today; Be not thyself, for how art thou a king But by fair sequence and succession?27

Here custom is equated with time itself, and a fundamental breach of one leads to a breach of the other. The profound nature of this monarchical and temporal rupture legitimates aristocratic rebellion. Because of custom’s extraordinary power in this period, the Crown and its agents were eager to discredit a rebellion’s claim to it in any way they could. Sometimes, they did so by asserting that the claim to custom was not strong enough. During a riot against enclosure and drainage, one of the Crown’s agents dismissed the protestors as “a company of silly country partially affected inhabitants” who asserted customary rights when they could not “speak of above sixty or seventy years, a weak proof.”28 Because they were not nearly as old as the protestors alleged, they were also not binding. The hyperbolic terms in which the ­protestors’ claim to custom are dismissed as mere affectation reveals its threatening nature: what would happen if they could trace their custom back further than six or seven decades? At other times, those loyal to the Crown sought to dismiss it altogether as a cynical alibi for a power grab. In his controversial account of 25 T. Norton, To the Quenes Maiesties Poor Decieued Subiects of the Northe Countrey, Drawen into Rebellion by the Earles of Northumberland and Westmerland (London: Henry Bynneman, 1569), E2v. Christopher Brooks, somewhat counter-intuitively, uses this as evidence that “long usage” did not play a “decisive” role in political and constitutional writings at the time. See C. Brooks, Law, Politics, and Society in Early Modern England (Cambridge: Cambridge University Press, 2008), 83. 26 W. Shakespeare, 2 Henry VI, in The Norton Shakespeare, eds. S. Greenblatt, W. Cohen, J. Howard, and K.E. Maus, 2nd ed. (New York and London: W.W. Norton & Co., 1997), 4.7.167–70. 27 W. Shakespeare, Richard II, in The Norton Shakespeare, eds. S. Greenblatt, W. Cohen, J. Howard, and K.E. Maus, 2nd ed. (New York and London: W.W. Norton & Co., 1997), 2.1.196–200. 28 Qtd. in D.  Underdown, A Freeborn People: Politics and the Nation in Seventheenth-Century England (Oxford: Clarendon Press, 1996), 48.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  167 Henry IV’s reign, John Hayward claimed that the Welsh rebel Owen Glendower was “incensed by a private suite” when he instructed his people to “first to kill all the English within their territories” and then “resume [Wales’] ancient customes and lawes, whereby more then armes, common-wealthes are established and enlarged.”29 In other words, Glendower’s rebellion and his desire to restore the ancient customs of the Welsh were motivated purely by private concerns. Hayward here reduces the restoration of custom to inflammatory rhetoric rather than acknowledging it as a legitimate political goal. It is cast as a cover for the rebel leader’s desire for wealth and power. Finally, there were those who sought to undermine custom’s authority al­together. When Norton warns the rebels in 1569 not to be taken in by the Earls of Northumberland and Westmorland, he goes even further than Hayward. He asks them to reconsider the merits of the noblemen’s promise to restore “auncient customes and liberties:” “Are all customes, without respect of good or bad, to be restored? are not the badde to be reformed?”30 Norton questions the absolute value of custom; just because things are old, he implies, doesn’t mean they are good. His willingness to undo the entire conceptual foundation of custom attests to the serious nature of the rebellion’s threat. These dismissive attitudes toward custom were, as one might suspect, highly contingent. For Hayward, the abrogation of custom constitutes a legitimate basis for English rebellion against Richard II. He does not subject the English people to the same criticism as Glendower when they are angered by being stripped of “their auncient libertie, in choosing knightes and burgesses for the parliament,” nor when they exclaim that “it was . . . against the custome of the realme, and against all right whatsoever, that [the Duke of Hereford] should be exiled.”31 As Norton’s warning to the Queen’s “poor deceyved subiects” might suggest, the attempts by the Crown and its agents to dismiss custom often ended up revealing its power. Indeed, even Norton cannot do away with it altogether, as in practically the same breath he relies on authority of antiquity that he had just dismissed: “Is  Percie and Neuill more auncient . . . than your natural Soueraigne Ladie the Queene of England, yea or England it selfe?”32 An anonymous poem printed in 1569 and addressed to those same northern rebels regards logical arguments against custom as beside the point: The auncient customes of the Church  you say you will restore, 

29 Hayward, Life and Raigne, 139–40. His account suggests that Glendower may have recognized the centrality of custom to the commonwealth because of his familiarity with common law. The story of Richard II’s downfall’s association with Essex, as well as Hayward’s preface in support of the Earl’s ambitions, eventually earned him a stay in the Tower. 30  Norton, E2v. 31  Hayward, 13, 50. 32  Norton, G1r.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

168  Custom, Common Law, and the Constitution The liberties that she hath had  she shall haue as to fore.  You speake but for to make hir smoyle  such libertie to haue  The Prince and Realme againe to spoyle  of that that once they gaue.  The Monke, the Fryer, and eke the Nonne,  the Armit and the Anker,  You doe intende belyke to place  in your most holy Ranker?33 

The poet mocks those who wish to restore the “old faith,” wondering precisely what that might look like. The sheer absurdity of reinstalling monks, friars, nuns, and other holy persons in their ranks, conveyed by a rhetorical question and a pun on “rancor,” obviates the need for any further logical argumentation, at least according to this poet. While the appeal to custom during these rebellions is not specifically linked to common law (except in the case of Glendower), these conflicts concerned not only the violation of ancient religion but also, crucially, of land-based practices. Further, the appeals also bear remarkable similarities to what we have seen in previous chapters. It is because of this customary framework that historians, especially Marxist historians, have long viewed these rebellions as conservative and nostalgic, and, as the products of a “false consciousness” that remained trad­ ition­al in its world view, even “devoid of political consciousness” altogether.34 In his recent book, however, Andy Wood makes a convincing case for the radical nature of appeals to custom, revealing that, much like parliamentary appeals, they often justified change. Thus, while the Mousehold Articles invoked the past, ­fulfilling its demands would ultimately entail a “wholesale rewriting of customary arrangements.”35 Wood argues: “[P]opular claims that could be couched within the language of custom were allowed a powerful voice.”36 Their invocation of 33 Anon., An Aunswere to the Proclamation of the Rebels in the North (London: William Seres, 1569), A7r. 34 A.  Randall, Before the Luddites: Custom, Community, and Machinery in the English Woollen Industry, 1776–1809 (Cambridge: Cambridge University Press, 1991), 32–5, 48–9, 50; D. Underdown, A Freeborn People, 49 (both qtd. in A. Wood, The Memory of the People: Custom and Popular Senses of the Past in Early Modern England [Cambridge: Cambridge University Press, 2013], 316); R. Manning, Village Revolts: Social Protest and Popular Disturbance in England, 1509–1640 (Oxford: Clarendon Press, 1988), 1 (qtd. in A. Wood, Riot, Rebellion, and Popular Politics in Early Modern England [New York: Palgrave, 2002], 7). 35 Wood, The Memory of the People, 317. 36  Ibid., 12. While the innovative force of custom in the sphere of elite politics has been recognized at least since Pocock’s The Feudal Law and the Ancient Constitution, it has taken far longer for this to be recognized in the sphere of popular politics. This belatedness attests to the longstanding dis­cip­lin­ ary division within history between political and social history, a division called into question by scholars like Keith Wrightson; David Underdown (see, for example, D. Underdown, Revel, Riot, and

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  169 custom was strategic; petitioners recognized that custom “craft[ed] a discursive space within which popular criticism of their rulers could legitimately be voiced” (emphasis mine).37 “The limitations of their language of protest,” Wood further argues, “were the products of structural imbalances of power rather than necessarily of limited political horizons.”38 In this broader context, then, it makes sense that the rebels would be horrified at the accusation of innovation—and that More would recognize its power to silence them. It places their insurrection beyond the pale. It makes sense, too, as a response to Tilney’s disapproval of the insurrection. But More is not granted the last word on the matter. With the framework of Shakespeare’s Additions, we can understand the insurrection’s leader John Lincoln’s final words, which were part of the Original Text, as a rejoinder to More’s accusation of innovation. As the rebels await their hanging (and More’s promised reprieve from it), Lincoln responds to the Sheriff ’s news that he will be first to hang with a sense of resignation born of foreknowledge: “I knew the first, sir, did belong to me./This the old proverb now complete doth make: / That ‘Lincoln should be hanged for London’s sake’ ” (7.43–5; Original Text). The rebel Lincoln here plays upon a proverb (sometimes referred to as a prophecy) about England’s cities: “Lincoln was, London is, and York shall be.” The first clause refers to Lincoln’s historical ­pos­ition of power because of its strategic location on a cliff overlooking and accessible by several waterways, while the second refers to London’s contemporary position of dominance within England, which it had held since at least the eleventh cen­ tury.39 In contrast to the clarity of the first two, the final clause, “York shall be,” ­presented interpretive difficulties. As Thomas Fuller sardonically put it: “That London is, we know; that York shall be, God knows.”40 Fuller speculated, as others did, that this meant either that York would one day achieve its desired prom­in­ ence, or (much to its dismay) it would remain exactly the same throughout this jockeying for supremacy: “York shall be York . . . still, as it was before.”41 The proverb thus presents both a radically different future and an utterly recognizable one. When Lincoln reconfigures the proverb’s meaning, characterizing himself as a sacrifice made for London’s peace, he situates himself within an historical narrative about England’s past, present, and future. By connecting his patronymic to a

Rebellion: Popular Politics and Culture in England 1603–1660 [Oxford: Oxford University Press, 1987]); Steve Hindle (see S. Hindle, The State and Social Change in Early Modern England [London: Palgrave, 2000]); and Wood himself (see A. Wood, The Politics of Social Conflict: the Peak Country, 1520–1770 [Cambridge and New York: Cambridge University Press, 1999]). 37 Wood, The Memory of the People, 321. 38 Ibid. 39  Rome built a legionary fortress there, and it was a center of commerce in the powerful AngloSaxon kingdom of Mercia. 40 T. Fuller, The History of the Worthies of England (1662), Vol. 3, ed. P.A. Nuttal (London: Thomas Tegg, 1840), 461. 41 Ibid.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

170  Custom, Common Law, and the Constitution place that represents the ruined past of England, he maintains a connection to the political stakes of their failed rebellion—and to the sense of this failure’s in­ev­it­­ abil­ity that the prophetic valence of the proverb suggests. At the same time, Lincoln only adds to the temporal strangeness of the proverb (that is, its representation of the future as simultaneously different and the same) by claiming that it is he who renders the proverb “complete.” This would make sense if his name were York, but it was widely acknowledged that the first two parts of the proverb had already come to fruition. His interpretation, by contrast, reimagines the past as still to come, that is, as the future, and thus resets the clock. In this way, it evokes the interchange between past, present, and future that custom enables. By exchanging innovation for proverb, or prophecy, Lincoln further shifts the temporal dynamics of the rebellion. Unlike the “horrible shape” that innovation “bears,” or the unknowable future that follows in rupture’s wake, prophecy, like custom, represents the future as knowable and reliable. Rather than a moment of rupture, which allows More to dismiss it, the rebellion is here framed—through a proverb—as part of a larger historical and political narrative. This was not an uncommon strategy by rebels, as I will discuss in greater detail. Most famously, the 1381 Peasant’s Revolt employed the proverb “When Adam delved and Eve spanned, who was then a gentleman?” in order to situate and justify their claims within a Christian history. Moreover, the very form of the proverb itself was strongly associated with custom because of the two’s shared unwritten status, lack of a point of origin, and dependence upon communal consent for their rhet­ oric­al value.42 Even as Lincoln’s proverb implies that the rebellion’s inevitable outcome is failure, it also recuperates the rebellion’s standing as customary, folding it back into a linguistic and political tradition counter to the earlier accusations of ­novelty. Especially in light of Shakespeare’s Additions, the proverb opens up a space for the audience to be suspicious of More’s charge of innovation, further justifying popular insurrection. When More reappears with the king’s pardon, he comes just in the nick of time for most of the rebels, but too late for Lincoln, who has already been hanged. As it turns out, the proverb, even if it had already predicted the past fate of Lincoln the city, now correctly predicts the current fate of Lincoln, the man, as well—as though to affirm Lincoln’s sense of his and his political actions’ historical place.43 His final words place the rebellion under the auspices of custom, metonymically represented here by the use of a proverb, thus restoring the long-standing connection between the two that More had sought to sever.

42  See Chapter 2, section I. 43  More’s belatedness ironically associates him with the very newness he had rejected.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  171

II.  More’s Proverbs on the Scaffold If Tilney chose to focus his censorial attentions on the Ill May Day scenes, p ­ erhaps this is because, in addition to contemporary admiration of More in the civic and humanist context, there was not much to object to in Munday’s representation of More’s disobedience. He seems to have anticipated censorship by omitting any mention of More’s theological difference from the king. As Gillian Woods puts it, “there is virtually no visibly Catholic content” whose removal could be ordered by Tilney.44 Most notably, the play repeatedly refers to the Oath of Supremacy that More refuses to sign as a set of “articles” whose contents are never specified (10.67–78; 13.141).45 As critics have noted, this subject matter makes for a strange play: a story of religious defiance that does not and cannot reference religion. In other words, Munday seeks to represent the unrepresentable. Woods poses the intriguing question: “Why write a play about a man whose story you cannot tell?”46 She convincingly answers that this absence enables the audience to cultivate a sense of identification with a Catholic figure.47 In this section, I focus on what replaces the absent religious dimension, arguing that the ubiquity of proverbs in this final third of the play recuperates More’s religious disobedience and, at the same time, imagines More and the citizens as members of a shared commonwealth. Even as More and the citizens are opposed to one another at the start of the play, there are also numerous connections between the two in the play’s final third: like the rioters, More resists the king’s authority, and he ultimately meets the same fate as their leader Lincoln. Alistair Fox has even cataloged the linguistic echoes between the scene of More’s execution and the aborted execution of (most of) the rebels.48 My reading of the play’s representation of More concurs with Nina Levine’s argument that More and the citizens share a “common bond,” and that the citizens provide a model of “his resistance and his civic fellowship.”49 We might have expected that More’s refusal to sign Henry VIII’s Articles would be likewise susceptible to the charge of innovation. But perhaps as a result of the negative association established between rebellion and innovation by More ­himself during the Ill May Day scenes, both the Original Text and the Additions assiduously avoid any hint that his defiance of the king could be characterized as such. Indeed, the only mention of rebellion is when More accuses his weeping

44  Woods, 3. 45  Both of these references are Original Text. 46  Woods, 3. 47  Susanna Monta argues similarly that the play cannot be “made to fit neatly the agenda of any single religious faction.” See  S.  Monta, Martyrdom and Literature in Early Modern England (Cambridge: Cambridge University Press, 2005), 159. 48  A. Fox, “The Paradoxical Design of The Book of Sir Thomas More,” Renaissance and Reformation 17.3 (1981), 163–4. 49  N. Levine, “Citizens’ Games: Differentiating Collaboration and Sir Thomas More,” Shakespeare Quarterly 58.1 (Spring 2007), 39–40.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

172  Custom, Common Law, and the Constitution wife and daughters of “prov[ing] rebels” to his conscience (13.152; Original Text). Instead, More describes his refusal to subscribe to the king’s “Articles” in terms of his submissiveness. When Shrewsbury and Surrey arrive to arrest him, he tells them, “I’ll now satisfy the King’s good pleasure”—much to the noblemen’s and to his family’s relief (13.171; Original Text). But once he clarifies his meaning, this turns out to be yet another one of More’s famous jests, and a particularly cruel one at that: “O pardon me,/I will subscribe to go unto the Tower/With all submissive willingness” (13.174–6; Original Text). He thus transforms this moment of rebellion into one of obedience. Only the vaguely oxymoronic phrase “submissive willingness” gives the lie to this claim. Moreover, the language that More uses during the ordeal also distances his decision from any hint of novelty. Like a good humanist, he consistently invokes Latin proverbs to explain his decision and comfort his household. The exchange between More and Roper after he is stripped of his titles sounds like it could have been taken straight from the pages of Book I of Utopia: Lady [More]: What’s the offence? More: Tush, let that pass; we’ll talk of that anon. the king seems a physician to my fate: His princely mind would train me back to state. Roper: Then be his patient, my most honoured father. More: O son Roper, Ubi turpis est medicina, sanari piget. (11.76–82; Original Text).50 More quotes the Senecan sentence, “Where the medicine is revolting, one is loath to be made healthy” (n.82), in order to justify his refusal to obey the king. It is almost as though More has assumed Hythloday’s role, including the very ­skepticism about government and counsel for which the fictional More in Utopia had berated him. The commonplace comparison between a ruler and a physician also appears in Utopia when Hythloday imagines how he would act in a king’s counsel. Unlike other counselors who would advise the king on how to extract more money from his people, Hythloday would explain how Fabricius preferred to rule over rich men than be rich himself. “[J]ust as an incompetent doctor can cure his patient of one disease only by throwing him into another, so it’s an incompetent monarch who knows no other way to reform his people than by depriving them of all life’s benefits.”51 During another exchange with Roper, More references another Senecan ­proverb, a “commonplace of medieval and Renaissance Stoicism”: “Humida vallis 50  This proverb was struck out by Tilney. 51 More, Utopia, 93.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  173 raros patitur fulminis ictus” (13.36 and n.36; Original Text). The proverb, which translates as “Rarely is a damp valley struck by thunderbolts,” refers to the heightened vulnerability to danger and destruction that goes along with being a great man. Although More mainly addresses his Latin proverbs to Roper, he calls upon one in an effort to console his wife, “What shouldst thou fear, fond woman?/ Iustum, si fractus illabatur orbis, impavidium ferient ruinae,” or “Even if the shattered world collapses on to him, the ruins cannot hurt the just and fearless man” (13.129–30 and n.130; Original Text). Roper himself finally makes recourse to a Latin p ­ roverb to explain his inability to express himself when More departs for the Tower: “Curae leves loquuntur, ingentes stupent,” or “Small sorrows speak, great ones are silent” (13.195 and n.195; Original Text). The effect of this accumulation of proverbs is to frame More’s resistance in terms of precedent. Rather than being in­nova­tive, it draws upon and can be understood in terms of readily ­available models from the past.52 It is not surprising, then, that in the play’s final moments More invokes a ­proverb. When he arrives at the scaffold, he inquires of his hangman, playing with typical sang froid upon the proverb a “bootless” or “sleeveless errand”: “O, is this the place?/I promise ye, it is a goodly scaffold./In sooth, I am come about a headless errand” (17.51).53 Again, the effect is to situate his execution in the context of a commonplace. The other quips More makes to the hangman in this scene— “[L]end me thy hand / To help me up. As for my coming down,/Let me alone, I’ll to that myself ” (17.55–7) and “One thing more: take heed thou cutt’st not off my beard. O, I forgot, execution passed upon that last night” (17.104–6)—draw upon historical accounts.54 This proverb, the bootless (or headless) errand, however, was Munday’s own addition. At the moment of death, More abandons his Latin learning in favor of a vernacular saying, and in doing so, cements his connection to the rebel Lincoln who had been executed before him. Like Lincoln, he reframes it to fit his particular circumstances. Even if the proverb does not have the national or temporal resonance of Lincoln’s final words, it nonetheless has a ­similar effect. If the Latin proverbs attest to his membership in the humanist community, then this vernacular proverb declares his membership in the English one, and in the English commons in particular. This moment represents a departure from More’s relationship to the commons during the insurrection scenes wherein, even though the rioters claimed More as 52  By contrast, while before the king’s agent interrupts the counsel’s meeting, they make use of proverbs to support their arguments for or against war, after this disruption, none of the characters who obey the king’s command use them, thus more firmly associating proverbs with resistance. 53  The entirety of Scene 17 is Munday’s Original Text. 54  Sir Edward Hall’s Union of the Two Noble and Illustre Families of Lancastre and Yorke (1548), probably as it was reported in Holinshed’s Chronicles (1587); Nicholas Harpsfield’s The Life and Death of Sir Thomas More, which was circulating in manuscript at the time and not published until 1931. See R.  Holinshed, Holinshed’s Chronicles of England, Scotland, and Ireland. (London: J.  Johnson, 1807); N. Harpsfield, The Life and Death of Sir Thomas More (Oxford: Early English Text Society, 1932).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

174  Custom, Common Law, and the Constitution a “friend,” his allegiance is divided uneasily between aristocrats and commoners (6.160; Addition II).55 At the moment before his death, More shares a rhetorical point of contact with the latter. In Chapter 2 on More’s Utopia, I argued that the classical proverb or commonplace engenders a discursive commons that is itself political. The vernacular proverbs used by Lincoln and More as they approach their deaths, likewise, make them part of the same political commons through custom. Although in neither case does a proverb succeed in rescuing these characters from their demise, More’s use of the proverb confirms the relationship between rebellion and custom that Lincoln had earlier sought to restore. Levine argues that both the citizens and More imagine a space outside of monarchy.56 The citizens insist in their bill against foreigners that “the redress must be of the ­commons knit and united to one part,” even if Lincoln subsequently disavows this claim in his scaffold speech, saying that he now can “perceive it was not fit/That private men should carve out their redress/Which way they list” (1.129–30, 7.55–7; Original Text). When Thomas Palmer introduces the unspecified “art­icles” ­during a meeting of the King’s Counsel, More similarly recommends that they “pause” so that “Our conscience first shall parley with our laws” (10.72–3; Original Text). Levine suggests that conscience and laws function in opposition to one another; private conscience, like private “redress,” stands outside the king’s law.57 But the use of “our” before both terms suggests that conscience and law both belong to More, thus introducing the possibility that the latter, too, is not fully in the king’s purview. Lincoln and More’s shared appeal to customary language within the midst of rebellion gestures to the existence of a common space. Through its association with custom, the rebellion can be understood as part of time’s continuous flow. While the political effect of the play is to assert the place of rebellion within custom’s temporal schema, its literary work is to figure out how to write a play that encapsulates this assertion without arousing the censor’s ire. Since we do not know if the play was ever permitted to be performed, we also do not know whether this effort succeeded, but we can be sure that the proverb was at its center.

III.  Hamlet, Custom, and Sacred Kingship If the playwrights who collaborated on The Book of Sir Thomas More disregarded Tilney’s advice, Shakespeare seems to have anticipated it. In his depiction of rebellion in Hamlet, first published in the same year during which Shakespeare participated in the revisions to Sir Thomas More, rather than have Laertes’s popular rebellion performed onstage, Shakespeare includes a report by an ­ 55  Levine, 55.

56  Ibid., 59.

57 Ibid.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  175 anonymous court messenger—and a very brief one at that. And just as the character Thomas More invokes innovation to discredit the citizens, the messenger invokes custom, its apparent opposite, to the same end. Yet, like in Sir Thomas More, this invocation ultimately can be viewed with skepticism on the audience’s part, especially in light of the rhetorical connection between custom and popular rebellion in the political realm. In this way, the invocation of custom ultimately contributes to the play’s desacralization of monarchy. Custom appears in Hamlet almost twice as often as in any other of Shakespeare’s plays. Hamlet in particular spends a lot of time worrying about whether or not the correct customs are observed and the harmful ones eschewed—like the Danish habit of drinking and carousing, a “custom/More honored in the breach than the observance” (1.4.15–16). He even describes his father’s death in terms of custom. When Ophelia reminds him that it is not “two hours” but “twice two months” since his father’s death, he exclaims sarcastically, “O heavens die two months/ago, and not forgotten yet?” and then proceeds to sing the popular ballad, “O the hobby-horse is forgot” (3.2.120–8). His father’s fate, Hamlet implies, is akin to that of a neglected toy in a customary Morris dance. Hamlet’s uses of ­custom are often overwrought, not to mention self-defeating. Yet they remind us that the concept of custom plays a shaping role in court politics. It is in fact a breach of custom, the “hugger-mugger” burial of Polonius, that sparks Laertes’s rebellion. Although these funeral rites are not themselves ­presented as specifically legal in nature, the court’s response to this rebellion likewise centers upon custom, in a markedly different way than the rebellion itself but, strikingly, in a way that starkly evokes the terms of legal custom. If Hamlet is committed to custom’s authority, the “distracted multitude” (4.3.4), according to the court’s messenger, want to break with it: Save yourself, my lord. The ocean overpeering of his list Eats not the flats with more impiteous haste Than young Laertes, in a riotous head O’erbears your officers. The rabble call him lord And, as the world were now but to begin, Antiquity forgot, custom not known, The ratifiers and props of every word, They cry, “Choose we: Laertes shall be king!”— Caps, hands and tongue, applaud it to the clouds “Laertes shall be king! Laertes king.”

(4.5.99–109)

The messenger’s comparison of the rebels to an ocean that overtakes the shore emphasizes their rashness and the apparent uncontainability of their threat, while the image of the disjointed body parts—caps, hands, and tongues—that elect

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

176  Custom, Common Law, and the Constitution Laertes suggests the disintegration of the body politic. It invokes King James I’s corporeal metaphor for the commonwealth and especially his ominous advice regarding rebellions. If any part of the body, or the people, is “affected by any infirmitie,” the head, or the king, must “prouide for their remedy, in-case it be curable.”58 If they are beyond cure, however, the head must “cut them off for feare of infecting the rest . . . ”59 Like More, the messenger here accords custom and antiquity a great deal of authority, emphasizing their role in political meaningmaking, rather than the divine right of kingship, as one might have expected from a play written in the years leading up to James I’s reign. The horror of this rebellion, like that of Ill May Day, resides in its forgetting of custom and antiquity. It is implicitly charged with the offense of innovation. The descriptor the messenger applies to custom and antiquity, “the ratifiers and props of every word,” only further discredits the rebellion. In the messenger’s account, the rebellion breaks not only with the political past but also with the linguistic one. Together, custom and antiquity guarantee linguistic meaning and ensure its fulfillment. They serve as a boundary marker that maintains its in­teg­ rity.60 Here the messenger voices an understanding of language that was central to Renaissance grammarians. Contra their medieval predecessors, early modern humanists like More argued that custom and not external logic determined ­linguistic rules and meaning. Echoing Quintilian, More writes in his “Letter to Dorp” (1516): “Grammar teaches the right way to speak, and yet it invents no laws of speech in defiance of custom; instead it simply sees which constructions appear the most often in speech and points these out to those who are unschooled in speech so that their speech will not flout common usage.”61 Although this ­conception of language was meant to wrest it from the scholastics’ specialized grip, here it has the effect of undermining the very intelligibility of the rebellion. The accusation that the rabble has forgotten antiquity, has failed to recognize ­custom, evacuates both their political act and the words in which it is expressed of meaning.62 With this characterization, custom becomes a tool of monarchical power that leaves no space for the kinds of resistance, on the one hand, and ­consent, on the other, that custom was well known to legitimize. Shakespeare pushes back against the alignment of custom and consent even more strongly

58 J.  Stuart, The Trew Law of Free Monarchies, in King James VI and I: Political Writings, ed. J.P. Sommerville (Cambridge, Cambridge University Press, 1994), 64. 59  Ibid, 77. 60  “ratify, v.” Oxford English Dictionary, def. I.1.c; “prop, n.1.” Oxford English Dictionary, defs.1a, 2a. 61  T.  More, “Letter to Dorp,” in The Complete Works of St. Thomas More, ed. D.  Kinney, Vol. 15 (New Haven, Yale University Press, 1986), 35. See Chapter 2, section II for a more extensive discussion. 62 In Thomas More Addition II, Hand C creates a similar connection between the rebellion’s ­tem­poral and linguistic confusion. More describes the rebels as “silly men” who “plod on they know not how” and compares them to a “fool’s pen/That, ending, shows not any sentence writ/Linked but to common reason or slightest wit” (5.44–7).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  177 than Sidney had in The Old Arcadia.63 Custom loses its meaning even as it is asserted as the source of all meaning, as the “ratifiers and props of every word.” And yet, in attempting to condemn the rebellion, the messenger’s speech has the effect of even further discrediting Claudius’s reign since, as in Sir Thomas More, there is an irony to the messenger’s dissociation of custom and rebellion. As we have seen, popular rebellions were often intimately associated with custom. The messenger’s strategy, then, is not an unfamiliar one; he follows the welltrodden path of his historical counterparts. The audience’s lower-class members might well have been attuned to this irony, recognizing the cynical deployment of ­custom to undermine popular demands. It is only further compounded by the fact that the rebellion was ignited by Claudius’s breach of custom. If Sir Thomas More implicitly unites commoners and men of power in the instances of resistance that frame the play, Hamlet explicitly does so. With Laertes as leader, we can also situate the rebellion in the context of English common law. Defining common law as the “common custom of the realm” enabled it to have an integral role in negotiating the relationship between the English monarch and his or her subjects. It reimagined a distant scene of conquest, specifically the Norman Conquest of 1066. Common lawyers and antiquarian historians including William Lambarde and Raphael Holinshed insisted that common law predated this conquest and that the English ultimately forced William the Conqueror to preserve their native legal system. Although he initially abrogated England’s laws and governmental institutions such as parliament, he eventually agreed to re­instate them.64 Sir Edward Coke, one of England’s chief justices, is often cited as the most explicit and extreme example of this way of thinking about the Norman Conquest: the “Common Law of England had beene time out of minde of man before the Conquest, and was not altered or changed by the Conquerour.”65 This national mythology framed the relationship between subsequent monarchs and their subjects. Members of parliament and common lawyers ­ turned to the interpretation that it was endowed with the people’s authority in order to limit the monarch’s authority. They often thereby asserted customary rights that were in fact entirely new.66 During Elizabeth I’s reign, Thomas Smith articulated a theory of “mixed monarchy” based on common law, insisting upon

63  See Chapter 4. 64 W. Lambarde, Perambulation of Kent (Bath: Adams and Dart, 1970), 20; Holinshed, Holinshed’s Chronicles, 290–91, 747–8. The common law was “so much esteemed of the Englishmen that after the Conquest, when the Normans oftentimes went about to abrogate the same there chanced no small mutinies and rebellions for retaining of those laws” (Holinshed 1:274). 65 E.  Coke, The Selected Writings and Speeches of Sir Edward Coke, Vol. 1, ed. S.  Shepard (Indianapolis: The Liberty Fund, 2003), 63. 66 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), 47; J.E.  Neale, Elizabeth I and Her Parliaments, 1559–1581 (London: Jonathan Cape, 1953), 155.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

178  Custom, Common Law, and the Constitution the absolute powers of parliament to represent “everie man’s consent.”67 During the Protestant Reformation, people began to use common law as a basis for resistance against the monarch. The Protestant martyrologist John Foxe argued that William the Conqueror took the same coronation oath as English monarchs did in his day, swearing to observe common law. In doing so, Foxe argues, William set a precedent: any monarch who failed in his or her duties could be confronted with armed resistance.68 Thus, in addition to its eleventh-century history, custom had a recent history of being evoked as a justification for resistance to absolutism. More elite members of the play’s audience, then, also would have recognized the political irony of the messenger’s speech. By transforming custom into “tyranny,” as John Milton would later describe it, however, the court’s loyal messenger unwittingly participates in the play’s broader desacralization of kingship.69 This process is often associated with Hamlet ­himself, who, as Lupton points out, spends the play committing “the most extra­ or­din­ary verbal abuse on the tropes of political theology” with wordplay that enacts a “negatation of these tropes of kinship, divine right, and sacramental ­contract,” including remarks such as “more than kin, and less than kind” (1.2.65) and “the King is a thing . . . Of nothing” (4.2.26–8).70 To this, one could add Hamlet’s favorite speech on Priam’s slaughter and his reduction of kings to dust who pass through “the guts of a beggar” (4.3.30).71 Referencing Carl Schmitt’s political theory of “decisionism,” Franco Moretti has argued that sacred mon­ archy was Renaissance tragedy’s enabling condition because it created the possibility of a singular character who can “decide,” or act. At the same time, Shakespearean tragedy in particular becomes the disabling condition of sacred kingship, which relies so heavily on symbolic reproduction, because it reveals monarchy’s identity with tyranny.72 The scene of Laertes’s rebellion effectively doubles down on this dramatic ­process of deconsecration. It bases its authority in custom rather than in divinity and, moreover, in a form of custom that, because it cannot be resisted, is forced

67 T.  Smith, De Republica Anglorum, ed. L.  Alston (Cambridge: Cambridge University Press, 1906), 49. 68 See  J.  Greenberg, The Radical Face of the Ancient Constitution: St. Edward’s “Laws” in Early Modern Political Thought (Cambridge: Cambridge University Press, 2001), 94–8. 69 J. Milton, Tenure of Kings and Magistrates, in John Milton: The Major Works, eds. S. Orgel and J. Goldberg (Oxford: Oxford University Press, 2003), 273. 70  Lupton, 92. 71  See Margreta de Grazia’s discussion of the “unusual frequency” with which Hamlet and Hamlet “targets monarchs.” M. de Grazia, Hamlet without Hamlet (Cambridge: Cambridge University Press, 2007), 69–70. 72  F. Moretti, “A Huge Eclipse: Tragic Form and the Deconsecration of Sovereignty,” in The Power of Forms in the English Renaissance, ed. S. Greenblatt (Norman, OK: Pilgrim Books, 1982), 9. On decisionism, see especially C.  Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. G. Schwab (Chicago: Unviersity of Chicago Press, 2005).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  179 upon the people. Additionally, the only character who is willing to commit to the principle of divine kingship is Claudius, a regicide, and he does so most explicitly in the course of neutralizing the revolt. He reassures Gertrude, who grabs Laertes’s arm as he approaches the king, that Polonius’s enraged son can do him no harm: Let him go, Gertrude, do not fear our person. There’s such divinity doth hedge a king That treason can but peep to what it would, Acts little of his will.

(4.5.122-125)

Claudius here describes the “noise within” that had just caused such panic as a mere “peep” and robs rebellion of agency. Further, unlike the rabble—whose words have no “prop,” no boundary to mark and defend them at all—kings alone, Claudius asserts, are encircled by heavenly hedges.

IV.  Custom and Revolution Just as the play represents the “waning sacrality” of kingship, it also opens up a space for other political forms. For Moretti, this space is located outside of the play, in the audience itself. No longer guided by a higher authority, they become a “rational public.”73 For Lupton, this possibility exists within the play, through the notion of “election” that is threaded throughout it, but most decisively at its ­conclusion. When Hamlet gives Fortinbras his “dying voice,” Lupton argues, he does so not as sovereign but as First Citizen, not as the head of the body politic but as one of its members.74 The messenger’s tyrannical version of custom similarly makes room for another political possibility within the confines of the play, within Laertes’ rebellion. For all its political cynicism, it is the messenger’s report that clears a space for this new political form. By representing the rebellion as a break from custom, he calls attention to the fact that the particular political form that the rebellion proposes to instate has no precedent. Ironically, the people clamor for the election of a king, negating the very principle of heredity whose violation they are protesting in the first place. Indeed, in its combination of an­archy, monarchy, and democracy, their cry can be described as “constitutional nonsense.”75 It violates the classical political model of anacyclosis, the cyclical process by which one constitutional form degenerates into its negative counterpart before evolving into another form altogether. In this model, the different

73  Moretti, 19.

74  Lupton, 89–90.

75  de Grazia, Hamlet, 144.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

180  Custom, Common Law, and the Constitution forms are limited to six (three good and three bad), which never coincide.76 In one sense, then, the messenger is right: the rebellion is, unmistakably, an innovation. More precisely, I argue, it is a revolution, in the sense that thinkers like Hannah Arendt, Reinhart Koselleck, and Karl Marx have articulated. Arendt explains that the true revolutions of modernity, such as the American and the French Revolution, can be distinguished from the rebellions and insurrections of the past because the revolutions could break the constitutional cycle and bring about “something altogether new.”77 For Arendt that something is freedom, as opposed to liberty. Koselleck argues similarly: Statements about the future such as Diderot’s “What will succeed this revolution? Nobody knows” reveal the extent to which the French Revolution “opened up a new horizon of expectation.”78 “Revolution,” he claims, “obviously no longer returned to given conditions or possibilities, but has, since 1789, led forward into an unknown future.”79 One of the features of revolution that Koselleck goes on to outline is that it “must write off the past and create its substance out of the future.”80 We can hear in this definition of revolution Marx’s “Eighteenth Brumaire of Louis Bonaparte”: true revolution takes “its poetry not from the past but only from the future.”81 The demands of Laertes’s rebellion are strikingly new, and their results are unpredictable. As numerous critics have pointed out, Denmark does have an elective monarchy; Claudius was chosen by the aristocrats of the realm. But what would a monarch elected by the people look like? How would it function? The rebellion is similarly unpredictable in its purpose—can we assume that it shares the goal (or purported goal) of many rebellions of this period, the furtherance of the common good? This does not necessarily seem to be the rebels’ primary interest since what motivates them is a violation of aristocratic privilege. The play’s novelty (in the modern, positive sense) may not reside as much in Hamlet’s ­emergent subjectivity as in the partial emergence of an unrecognizable polity. 76  The Greek historian Polybius describes this process, which he in turn bases on Aristotle: [T]he first system to arise is . . . kingship. Kingship changes into its congenital vice—that is, into tyranny—and then it is the turn of aristocracy, after the dissolution of tyranny. Aristocracy necessarily degenerates into oligarchy, and when the general popu­lace get impassioned enough to seek redress for the crimes committed by their leaders, democracy is born. And in due course of time, once democracy turns into violating and breaking the law, mob-rule arises and completes the series. Eventually the people are reduced back to a “bestial state” and the process begins over again. Polybius, The Histories, trans. R.  Waterfield (Oxford: Oxford University Press 2010), 373, 378. This ­process was also described by Machiavelli in Discourses on Livy, trans. and eds. J.C. Bondanella and P. Bondanella (Oxford: Oxford University Press, 1997), 23–6. 77 H. Arendt, On Revolution (New York: The Viking Press, 1963), 14. 78 R.  Koselleck, Futures Past: On the Semantics of Historical Time, trans. K.  Tribe (New York: Columbia University Press, 2004), 49. 79 Ibid. 80  Ibid., 54. 81 K.  Marx, “The Eighteenth Brumaire of Louis Bonaparte,” in The Marx-Engels Reader, ed. R.C. Tucker, 2nd ed. (New York: W.W. Norton & Co., 1978), 597.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  181 This unrecognizable polity presents a theatrical challenge that surpasses even that of Sir Thomas More—how does one represent the truly new? In Shakespeare’s Sonnet 59, as we have seen, the speaker insists that our brains are only “beguil’d” when we believe that we have done so.82 One possibility is to invoke a proverb in order to situate it and render it familiar, as we have seen in Sir Thomas More’s treatment of rebellion. In Hamlet, Shakespeare reminds us of the tradition of associating proverbs with rebellion during a conversation between two rustics as one of them digs Ophelia’s grave. They conclude their discussion of the Crown’s decision to give Ophelia a Christian burial by contemplating the pernicious effects of class difference even beyond death: 2 Man: Will you ha’ the truth on’t? If this had not been a gentlewoman she should have been buried out o’ Christian burial. Gravedigger: Why, there thou sayst, and the more pity that great folk should have countenance in this world to drown or hang themselves more than their even-Christen. Come, my spade. There is no ancient gentlemen but gardeners, ditchers and grave-makers. They hold up Adam’s profession.  (5.1.22–31) The gravedigger references the slogan of the 1381 Peasant’s Revolt, “When Adam delved and Eve span, who was then a gentleman?,” which had regained new life as a subversive motto in the late sixteenth century after John Ball’s sermon was reported in chronicles by Holinshed and others and dramatized in the an­onym­ ous play The Life and Death of Jack Straw (1593).83 Shakespeare plays upon the idea of death as the great leveler in protest of the act in which the gravedigger is engaged: burying Ophelia in a plot that has been determined by her rank. This quip reminds us that rebellions were often associated not only with legal custom but also customary language. Legal custom and proverbs, or customary language, were conceptually linked in this period: their authority was described in remarkably similar terms, and they are both understood as forms of common property.84 Through the figure of the commonplace, the play as a whole reveals its investment in the notion of common speech. By one count, the play contains 140 proverbs, half of them spoken by Hamlet himself.85 Robert Weimann points

82  Shakespeare, Sonnet 59, l. 2. 83  The play is thought to be by George Peele. Albert Friedman traces numerous uses of the proverb to support the existence of an aristocracy, but to remind them of their noblesse oblige. It also appears as a refrain in songs that had little to do with egalitarianism. A.B. Friedman, “ ‘When Adam Delved . . . ’: Contexts of an Historic Proverb,” in The Learned and the Lewed: Studies in Chaucer and Medieval Literature, ed. Larry D. Benson (Cambridge, MA: Harvard University Press, 1974), 222. 84  See Chapter 2, section I. 85 M.P. Tilley, A Dictionary of the Proverbs in England in the Sixteenth and Seventeenth Centuries (Ann Arbor: University of Michigan Press, 1950). Qtd. in R. Weimann, Shakespeare and the Popular Tradition in Theater: Studies in the Social Dimension of Dramatic Form and Function (Baltimore: The Johns Hopkins University Press, 1978), 130.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

182  Custom, Common Law, and the Constitution out that, as a result, Hamlet’s speech is replete with “images drawn from the most common aspects of everyday life.”86 This content as well as Hamlet’s habit of delivering it in aside associate him with the Vice figures—clowns, devils, and ­others—of medieval drama who addressed the audience directly from the platea rather than from the elevated locus. As such, Hamlet offers an “irreverent popular perspective” and functions as an “aggressive critic” of the court.87 His language is rooted in the “inherited traditions of the people.”88 Building on this connection, Annabel Patterson argues for the political valence of this theatrical choice. “In his estrangement from what is rotten in the state of Denmark,” Patterson suggests, Hamlet “speaks in language learned from the politically voiceless, who can still be heard elliptically in proverbs.”89 Thus, when Hamlet speaks in proverbs, he questions “social justice . . . in the language of popular tradition.”90 The ubiquity of proverbs in Hamlet’s speech renders their absence during the rebellion conspicuous. Even when we briefly catch a glimpse of Laertes speaking with his followers, they do not employ them (4.5.111–14). Recent reevaluations of the play’s status as a literary object help explain this absence. While critics have long considered the 1603 Quarto of Hamlet (Q1) an acting version of the play, Zachary Lesser and Peter Stallybrass propose that it “has a good claim to being Shakespeare’s first literary drama.”91 They make this argument on the basis of the printed commonplace and sententiae markers (commas, inverted commas, and changes in font) that appear in Q1, especially in the speeches of Corambis (as Polonius was called in this quarto) to his son and daughter, Laertes and Ofelia. These types of marks were usually reserved for plays by classical authors, including the 1506 Florentine edition of Seneca’s tragedies; the Greek text and Latin translations of Euripedes’ tragedies printed in Basel; and English editions of Euripides’ Trojan Women and Sophocles’ Antigone, printed in 1571 and 1585, respectively.92 In other words, they appear “in the most prestigious plays in the

86 Ibid. 87  Ibid, 131. 88  Ibid., 237. 89 A. Patterson, Shakespeare and the Popular Voice (Cambridge, MA: Blackwell, 1990), 99. 90  Ibid., 99. While Weimann acknowledges the political dimension of this type speech, he is ul­tim­ ate­ly more interested in its characterological function, treating Hamlet’s mediation of the locus and the platea roles as a step on the way to psychological realism (Weimann, 132). 91  Z. Lesser and P. Stallybrass, “The First Literary Hamlet and the Commonplacing of Professional Plays” Shakespeare Quarterly 59.4 (Winter 2008), 376. 92  Ibid., 376n.10. Lesser and Stallybrass draw upon the work of A. Moss, Printed CommonplaceBooks and the Structuring of Renaissance Thought (Oxford: Clarendon Press, 1996); A.  Kiséry, “ ‘Politicians in Show’: The Circulation of Political Knowledge in Early Seventeenth-Century English Drama” (Ph.D. diss., Columbia University, 2008), subsequently published as Hamlet’s Moment: Drama and Political Knowledge in Early Modern England (Oxford: Oxford University Press, 2016); and a paper by Tanya Pollard subsequently published as T. Pollard, “Greek Playbooks and Dramatic Forms in Early Modern England,” in Formal Matters: Reading the Materials of English Renaissance Literature, eds. A. Deutermann and A. Kiséry (Manchester: Manchester University Press, 2013), 99–123.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  183 most prestigious languages.”93 Their presence in Hamlet asserts the play’s status as an elite text rather than a record of a popular theatrical performance. Far from a marker of its association with the commons, then, commonplaces distinguish the play from its popular theatrical origins. Although commonplace markers do not appear alongside Hamlet’s speeches in Q1, they nonetheless attest to the ways in which the proverb could just as easily be aligned with the elite as with the common people.94 Indeed, if half of the proverbs in the play belong to Hamlet, then about half of those have a classical provenance or appear in volumes like Bodenham’s Bel-vedere, part of a group of printed commonplace books that sought to establish the authority of vernacular literature.95 Even further, the character who is perhaps most associated with proverbs, Polonius, is a puppet of the court and general windbag. In the prolegomena to his Adages, Erasmus worries that his elite, classical commonplaces will be confused with popular proverbs and takes pains to distinguish between the two.96 Here, his fears prove true, as they appear indistinguishable. Ophelia demonstrates this to be the case, devastatingly so, in her mad scenes. The bawdy ballad she sings about a maiden who gives up her virginity only to be betrayed by her lover (4.5.49–66) conveys the same message as the precepts her father had dispensed earlier in the play (1.3.39–44; 1.3.115–30). By handing out posies, which evoke elite poetic miscellanies, during this scene Ophelia further cements the connection. The pointed similarity between the ballad and her father’s precepts imply a critique of the court’s failures. In effect, she discredits the patriarchal proverbs that were meant to protect her.97 Gertrude and the court are well aware that this is not simply a family matter. A court gentleman reports to Gertrude that although her speech carries “but half sense” and “is nothing,” it nonetheless represents a political threat: “the unshaped use of it doth move/The hearers to collection. They yawn at it/and botch the words up fit to their own

93  Lesser and Stallybrass, 376. 94  Even in Patterson’s account, there is a limit to Hamlet’s linguistic connection with the commons, one that he reaches during his dialogue with the gravedigger. Both engaged with and unsettled by the gravedigger’s punning riddles, the very form that he deploys elsewhere to similar effect, Hamlet laments, “the age is grown so picked that the toe of the peasant comes so near the heel of the courtier he galls his kibe” (5.1.132). Further, while Hamlet may appropriate the proverbs of the lower classes, he is troubled by the reverse: the Clown’s singing of a courtly song that appears in Tottel’s Miscellany, a volume of lyric poetry. Patterson argues that Hamlet recognizes that this laborer has “mistaken his place in the world,” and immediately afterward “radical Hamlet” retreats back into the aristocracy (103). (This may account for his increased use of classical proverbs as the play progresses.) Similarly, in Weimann’s characterological reading, the proverbs Hamlet recites never function only as a connection to the commons, but rather become a sign of his self-expression, an externalization of his interior subjectivity (132). 95  I have compiled this information from M.P. Tilley, A Dictionary of the Proverbs. 96 Erasmus, Adages, in The Collected Works of Erasmus, vol. XXXI trans. M.M. Phillips, ed. R.A.B. Mynors, (Toronto: University of Toronto Press, 1982), 19. 97 de Grazia, Hamlet, 114, 117; S.  Trudell, “The Mediation of Poesie: Ophelia’s Orphic Song,” Shakespeare Quarterly 63.1 (Spring 2012), 64.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

184  Custom, Common Law, and the Constitution thoughts” (4.5.7–10). When Horatio advises Gertrude to speak with Ophelia because “she may strew/Dangerous conjectures in ill-breeding minds,” he figures her mad speech as a precursor to Laertes’s rebellion, whose words, if arguably more intentional, are likewise described as nonsense (4.5.14–15).98 The presence of commonplaces in the play, then, can be interpreted in vastly different ways. The play itself highlights the difficulty of associating commonplaces with either the elite or the common people. For Erasmus and More, the proverbs’ flexibility makes them an ideal political tool, but here the difficulty of interpreting proverbs as a sign of allegiance proves problematic.99 Given the uncertainty of the proverb’s status, it is no wonder that the play’s popular rebellion refuses to traffic in them, choosing instead their own formulation, one that breaks with custom and antiquity. The revolution, it turns out, will not be proverbialized. Instead the solution to the problem of representing revolution is not to stage it at all. Perhaps even more conspicuous than the absence of proverbial speech is the absence of the rebels themselves. Their presence is registered instead by their noise, the panicked response of the court, and, of course, the messenger’s report. To borrow Philip Sidney’s terms, Shakespeare chooses to report rather than represent. He employs a classical technique that Sidney believed English dramatists would do well to make use of with more frequency.100 Both its novelty and its unpredictability may explain why Shakespeare chose not to stage Laertes’s rebellion. One might argue that this is a moment in which Shakespeare assumes the role of Tilney, the Master of Revels who forbade the representation of Ill May Day in Sir Thomas More. Likely many would have shared the horror of innovation that the messenger expresses, as the commoners’ response to the accusation of novelty in Sir Thomas More would suggest. Perhaps, then, Shakespeare is here following and extending Horace’s dictum in the Ars Poetica to refrain from representing the odious onstage, such as Medea butchering her own children or Atreus eating human entrails, and to call instead upon a narrator.101 That Shakespeare would describe revolution and go no further might also indicate the limits of the early 98  The verb “strew” also connects her speech that the people overhear to the flowers she passes out to members of the court. In turn, Gertrude’s description of her “muddy death” (4.7.181) harkens back to the people who are “muddied” in their thoughts (4.5.81). 99  See Chapter 1. 100  Complaining of their violation of the classical unities of time and place, Sidney writes: But they will say, How then shall we set forth a story, which containeth both many places and many times? . . . [M]any things may be told which cannot be showed, if they know the difference betwixt reporting and representing. As, for example, I may speak (though I am here) of Peru, and in speech digress from that, to the description of Calicut; but in action I cannot represent it without Pacolet’s horse. And so was the manner the ancients took, by some nuncius to recount things done in former time or other place. P.  Sidney, The Apology for Poetry, ed. G.  Shepard (Manchester: Manchester University Press, 1973), 134–5. 101 Horace, Ars Poetica, in Satires. Epistles. The Art of Poetry, ed. H.R. Fairclough, Loeb Classical Library 194 (Cambridge, MA: Harvard University Press, 1929), ll. 179–89.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  185 modern political imaginary. But I argue that, rather than an act of self-censorship or a reflection of the narrow scope of the period’s imagination, this theatrical choice registers this moment’s political distinctness from other rebellions that Shakespeare had dramatized and would go on to dramatize. Shakespeare’s formal experiment renders absence itself a precondition to revolution’s (momentary) viability. Although we may not think of an invocation of an offstage space as particularly experimental, it requires and responds to two developments in the early modern commercial theater, one physical, the other dramaturgical. The introduction of an “attyring house,” or a “place where the players make them readye,” enabled early modern dramatists to imagine an offstage space.102 Whereas medieval drama experimented with imagining the stage as representing an allegorical totality, early modern theater emphasized its incompleteness.103 In addition, the return to the five-act drama, without an attendant insistence on the classical unities of time and place, required dramatists to create a sense of continuity across scenes. Lorna Hutson has shown that the judicial technique of narratio, or an exposition “designed to be persuasive, of the facts in dispute,” was crucial to this aspect of the stage’s mimetic power.104 Just as famous judicial orations by Cicero and others made “intelligible, a more immediate and specific sequence of events” so that the court could imagine “the cause and likely outcome of a specific state of affairs,” narratio in early modern drama enabled the audience to vividly imagine and evaluate events that had taken place offstage.105 In Hutson’s account, both the Danish court’s frenzy of “forensic inferential activity” surrounding Hamlet’s “antic disposition” (1.5.170) and Hamlet’s own use of narratio contribute to the sense of Hamlet as a character.106 In this instance, however, the play’s switch to narrative has political rather than characterological effects. First, as Hutson points out, narratio is at base an act of persuasion, and early moderns understood it as such.107 By seeking to persuade the audience of how to interpret an event it did not witness, the speech engages the audience in an act of judgment, not only of the rebellion but also of the messenger himself.108 While according to some, like Sidney, narratio was a laudable dramatic technique:

102 P.  Womack, “Off-Stage,” in Early Modern Theatricality, ed. H.S.  Turner (Oxford: Oxford University Press, 2013), 76. 103  Ibid., 74–5, 77, 91. 104 Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford: Oxford University Press, 2007), 121. As Hutson points out, this technique did not represent a complete departure from medieval or early sixteenth-century drama since it was brought together with the native tradition of episodic narrative. Yet dramatic narrative was nonetheless a technique with which early modern playwrights experimented much more extensively (106). 105  Ibid., 106, 121, 124. 106  Ibid., 140–4. 107  Ibid., 127. 108  On the importance of judgment in Richard II, see L. Hutson, “Imagining Justice: Kantorowicz and Shakespeare,” Representations 106.1 (Spring 2009), 118–42. Paul Kottman interprets the characters’ acts of narration in Hamlet similarly, as a sign of the play’s investment in a human plurality or collectivity. P. Kottman, A Politics of the Scene (Stanford: Stanford University Press, 2007), 139–65.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

186  Custom, Common Law, and the Constitution according to others it was a suspect one. Dramatists, including Shakespeare, often used it to highlight the difference between what had transpired and what “the words persuade us to see.”109 Just as the content of the speech, with its dis­soci­ ation between custom and rebellion, could provoke skepticism on the part of the audience, so too could its very form. To further understand the implications of the rebellion’s absence, I turn to the twentieth-century political theorist Claude Lefort’s essay “The Permanence of the Theologico-Political?,” which grapples with the question of whether to consider modern secular democracy a “new episode” and “new experience” or a con­tinu­ ation of the theologically grounded state of Christian Europe.110 In exploring, though not definitively answering, the question his title poses, Lefort argues that modern democracy is intimately connected to absence and emptiness. In ­premodern societies, he maintains, the power that authorizes a sociopolitical community is understood to reside outside of that community; it is a sym­bol­ic­ al­ly constituted form of power because the community represents—and thereby authorizes—itself to itself through the form of, for example, a deity or the dual body of a king (here, he follows the work of Ernst Kantorowicz).111 In other words, there is a “self-division” of that society into the “internal-external,” or into “the One” that is the community and “the Other,” its symbolic form.112 We might think that, because modern society does not rely upon anything external to itself to constitute its authority but rather “conceive[s] of the state as an independent entity,” rendering “politics a reality sui generis” and religion the “domain of ­private belief,” this self-division and the symbolic order would disappear as well.113 But Lefort argues that neither of these things turns out to be correct.

109 Hutson, The Invention of Suspicion, 137. 110  C.  Lefort, “The Permanence of the Theologico-Political?,” in Democracy and Political Theory, trans. D. Macey (Minneapolis: University of Minnesota Press, 1988), 187. 111 Lefort, 159; B.  Flynn, The Philosophy of Claude Lefort (Evanston: Northwestern University Press, 2005), 108. The meaning of the term “symbolic” in Lefort’s work remains a matter of debate. Warren Breckman argues that Lefort’s use of this terminology should be distinguished from Lacan’s and the structuralist anthropologists’ use. According to Breckman, Lefort was more interested in the connection between “the process whereby society shapes its shared existence through self-production and reproduction” and “the process whereby that life is represented or interpreted” (178, 180). Samuel Moyn, by contrast, argues that Lefort was influenced strongly by both. Lefort combines aspects of both Lacanian categories of symbolic and imaginary, and was also influenced by the work of political anthropologists who worked in the Lacanian tradition. He did not agree, however, that the entanglement of the symbolic and the imaginary was characteristic only of “primitive societies” and transcended by modern societies. Here, I am not concerned with pinning down the exact meaning of the symbolic for Lefort, but rather work with the basic definition that he offers in his essay: the symbolic is that which “govern[s] access to the world” (156). See  W.  Breckman, “Lefort and the Symbolic Dimension,” 178, 180; and S. Moyn, “Claude Lefort, Political Anthropology and Symbolic Division,” 60–1; both in Claude Lefort: Thinker of the Political, ed. M. Plot (London: Palgrave, 2013). 112  Lefort, 159, 160. 113  Ibid., 149. Lefort identifies the French Revolution as the onset of modernity, although he sees “traces” of it in sixteenth-century Europe.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  187 Rather, in political modernity the symbolic space (and the self-division that produces it) persists, but it has no content.114 He describes it as a kind of unbounded nutshell: “I have for a long time,” Lefort writes, “concentrated upon this peculiarity of modern democracy: of all the regimes of which we know, it is the only one to have represented power in such a way as to show that power is an empty place.”115 It “belongs to no one;” “those who exercise power do not possess it,” and they certainly do not “embody” it.116 Any “determinate configuration,” any incarnate being that once occupied this other place, is utterly effaced.117 Yet, surprisingly, the place external to society seems nonetheless to remain. For Lefort, this is a vital aspect of the persistence of political theology into modernity. Lefort’s assertion of the “empty place” may sound like simply another way of saying “power belongs to no one” or even another version of the classical democratic formulation “power is in the middle,” engendered by consensus. Thus, the evacuation of the sacred space outside, but constitutive, of statehood might ­suggest that modern democracy is not only a continuation of European premodernity but also and at the same time a return to classical antiquity. But, crucially for my argument, Lefort moves on to a different and more precise explanation of this notion. Unlike ancient Greek democracy, the empty place of modern democracy does not “presuppose the existence of a community.”118 While the former already posits the existence of “a group which has an image of itself, of its space and of its bounds,” the latter has no “positive determination,” or content.119 There is no pre-determined body or pre-existing boundedness to the community that constitutes it. Lefort does not even believe that democracy can be “represented by the figure of a community.”120 As Bernard Flynn explains, for Lefort, “the people” is not a “definite notion;” “it has no exact limits . . . This radical indeterminacy of the people is a central tenet of Lefort’s conception of modern democracy.”121 Because modern democracy does not seek to materialize the “Other,” it also does not attempt to materialize the “One.”122 Indeed, in other works, Lefort identifies totalitarianism as the attempt to fill the empty place with the incarnate figure of the people.123 By contrast, it is the lack of a material instantiation of the people that sustains democracy because it does not (or, ideally, should not) require the process of exclusion to define itself.

114  In his larger argument, he sees self-division as internalized in political modernity and a cause of alienation. Flynn, Introduction. 115  Lefort, 159. 116 Ibid. 117 Ibid. 118  Ibid., 160. 119  Ibid. For a more extensive discussion of the difference between Lefort’s conception of democracy and classical Greek democracy, see Flynn, 158. 120  Lefort, 160. 121  Flynn, 158. 122  Lefort, 160. 123  Flynn, xxvi. In “The Permanence of the Theologico-Political?,” Lefort warns that totalitarianism will emerge if the political competition that democracy requires does not succeed in “giving form and meaning to social division” and “[t]he reference to an empty place gives way to the unbearable image of a real vacuum” (167).

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

188  Custom, Common Law, and the Constitution Lefort’s insistence on the “empty place” and on the disincarnated status of its foundational authority implies that the imagination is central to democracy’s ­survival since, as he asserts in his discussion of philosophy’s ambivalent relationship to religion, only the imagination allows the people to establish a relationship with “something [that is, divinity, eschatology] that goes beyond empirical time and . . . space.”124 That the “something” to which Lefort refers here is religion renders our extra-empirical capacity distinctly un-modern, another sign of theology’s persistence. Although he does not explicitly say so, it could be argued that democracy requires the imaginative faculties even more—or in a more flexible way—than sixteenth-century European kingship with its fiction of the two bodies, because the former has no fixed body to imagine. I want to suggest that the rebellion and the messenger’s speech work to create a demotic space not unlike the kind Lefort sees as powering modern democracy, a space of the people that remains conspicuously and curiously empty. Of course, I do not wish to argue that this moment in Hamlet is identical to modern democracy. As I will discuss in section  V, the play puts pressure on the requisites of political modernity. Yet Lefort’s understanding of democracy as resistant to the materialization and incarnation of the people offers insight into Shakespeare’s choice not to stage Laertes’s rebellion. The rebellion, or rather revolution, calls a people into being, but it does not give them a material form, thereby preserving their indeterminate nature. As we have seen, Lefort ascribes our extra-empirical capacity to religion; Victoria Kahn, however, credits fiction itself. Drawing on her understanding of Kantorowicz’s The King’s Two Bodies, she argues that “[t]heology . . . is always already about representational fictions.”125 Consequently, a political system like democracy is reliant upon fiction’s tendency to “complicate[] any attempt to locate power in one particular body or one particular place.”126 The inverse, then, is also true: fiction enables us to grasp both the notion that “power belongs to no one” and the “empty place” of democracy. Similarly, the demotic space that Shakespeare refuses to stage creates a fiction-within-a-fiction, one that adds yet another layer of distance from any determinate incarnation of the people. His use of narratio renders literal the messenger’s figurative depiction of its emptiness, but creates it as a politically productive empty space. Thus, Shakespeare’s brief report does not have the effect of dismissing revolution as impossibility, but rather of proposing absence itself as a prerequisite for the potential that Hamlet’s revolution momentarily possesses before its dissolution. Like Hamlet himself, revolution possesses something “which passes show” (1.2.85).

124  Lefort, 157. 125 V. Kahn, The Future of Illusion: Political Theology and Early Modern Texts (Chicago: University of Chicago Press, 2014), 80. 126  Ibid., 81.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  189

V.  (Un)Periodizing Revolution Identifying this moment as revolution rather than rebellion has consequences for debates about periodization—although perhaps not the ones we might have expected. Scholars of the sixteenth and seventeenth centuries by and large identify the Renaissance with the onset of modernity because it (supposedly) in­aug­ur­ ated all of modernity’s hallmarks, from individual subjectivity to large-scale historical consciousness. As Fredric Jameson, Margreta de Grazia, and others have shown, novelty is often considered by these scholars to be the “essence of modernity,” and the Renaissance assumes pride of place because, unlike the medieval period (again, supposedly), it developed a sense of the irreducible difference between past and present.127 Yet the idea of revolution has remained remarkably untouched by this persistent critical impulse. Perhaps this is because the word itself had a different meaning in the Renaissance. As an astronomical term that referred to the supposed orbit of the sun around the earth or in general the orbit of any celestial body, “revolution” indicated a motion that ultimately returned an object back to its starting point. In this sense it meant precisely the opposite of what it does today.128 Indeed, some scholars reject the term as a name for the political turmoil of the 1640s and 1650s, preferring the supposedly more neutral term “English Civil Wars.”129 They thus leave intact the historical narrative that the first true revolutions took place in the late eighteenth century. Marx moves the date even farther away from the Renaissance. He observes with regard to the French Revolution of 1789: [J]ust as they seem to be engaged with revolutionizing themselves and things, creating something entirely new, precisely in such epochs of revolutionary crisis they anxiously conjure up the spirits of the past to their service, and borrow from them names, battle slogans and costumes in order to present the new scene of world history in this time-honuored disguise and this borrowed language.130

127  de Grazia, “The Modern Divide: From Either Side,” ,” Journal of Medieval and Early Modern Studies 37.3 (Fall 2007), 453–67. See also F. Jameson, A Singular Modernity: Essay on the Ontology of the Present (London and New York: Verso, 2002), 22–3 and passim. Some of the most influential articulations of this difference between the medieval and Renaissance periods are Erwin Panofsky in Renaissance and Renascences in Western Art (New York: Harper & Row, 1972) and Thomas Greene in The Light in Troy: Imitation and Discovery in Renaissance Poetry (New Haven: Yale University Press, 1982). See Introduction, section IV for more detail. 128 C. Hill, A Nation of Change and Novelty (New York and London: Routledge, 1990), 82–3. Hill disagreed with the idea that no revolutions were possible before 1688. 129  Others have retained the term “revolution” as reflective of the extreme and radical nature of this period of political turmoil. See, for example, D. Loewenstein, Representing Revolution in Milton and His Contemporaries (Cambridge: Cambridge University Press, 2001), 9. For an overview of the ­ter­min­ology relating to the period 1642–1660, see D. Armitage, “Ideas of Civil War in SeventeenthCentury England,” Annals of the Japanese Association for the Study of Puritanism 4.1 (2009), 4–18. 130  Marx, 594–5.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

190  Custom, Common Law, and the Constitution Whereas “the old French Revolution, performed the task of their time . . . in Roman costumes and with Roman phrases,” “the social revolutions of the nineteenth century” to come, he urges, must be entirely novel, letting the “dead bury their dead.”131 Arendt is similarly attuned to the role the past played in the revolutions she discusses, arguing that the main revolutionary actors during the American and French Revolutions believed, at least initially, that they were leading a “restoration;” like the sixteenth-century rebels I discussed earlier, they wanted to “revolve back” to older times, to retrieve ancient liberties.132 Yet, this does not discount them as revolutions since during the course of these rebellions “the novelty of the story and the innermost meaning of its plot became manifest to actors and spectators alike.”133 Given the common ascription of modernity to the Renaissance and of novelty to revolution, one might have expected to find revolution’s origins in this period. All the conceptual apparatus is apparently in place. It is striking, then, that its first instances (even its first instances of conceptualization) are never located there. Arendt herself is surprised that “[t]he word ‘revolution’ is still absent where we would [be] most inclined to find it, namely, in the historiography and political theory of the early Renaissance.”134 She is especially puzzled by Machiavelli’s use of Ciceronian phrases such as mutatio rerum and mutazioni del stato, phrases that indicate the cyclical nature of history, to describe violent upheavals in government. His choice of words suggests that “the specific revolutionary pathos of the absolutely new . . . was entirely alien to him.”135 Calling Laertes’s rebellion a revolution might seem to represent another way that the Renaissance (and Shakespeare) lay at the threshold of modernity. This reading would further cement the divide between modernity and everything that precedes it. And yet, this is not my aim. Although, as I have argued, there are remarkable similarities between Arendt and others’ definition of revolution and Laertes and his followers’ instance of political resistance, there are also profound differences. First, identifying this moment as revolutionary does not necessitate marking it as an origin point. In other words, this is not an argument about “first times.” Rather, Laertes’s political resistance reveals how revolution has the capacity to emerge at certain moments as a formal and political phenomenon and then disappear again. That is, poetic and political novelty does not necessarily entail a period break. Indeed, revolution may not be unprecedented before this moment, either. Perhaps this moment’s particular poetic and political–legal constellation is an instance in which revolution is simply made visible—or, more precisely, narratable. We might also here consider the fact that Shakespeare’s work on Sir Thomas More postdates Hamlet; my reading of the plays resists a developmental narrative.

131  Ibid., 597. 134  Ibid., 28.

132  Arendt, 37. 135  Ibid., 28–30.

133  Ibid., 21.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  191 Second, the messenger’s speech reveals how custom, the repetition of the past, is itself inherent in the idea of revolution rather than anathema to it. In its invocation of custom, the messenger’s speech demonstrates that there are ways of thinking about revolution other than as a strict dichotomy between novelty and repetition. Revolution becomes a form of political resistance that uses custom to imagine a different future. Unlike early modern understandings of rebellion, which use custom to conjure the past, Hamlet’s revolution ultimately privileges the different future that it seeks to enact through custom. But unlike Arendt and Koselleck’s theories, too, Hamlet’s revolution does not simply institute a break but rather a supplanting, one that can continue and can be reproduced via the mech­ an­ism of custom—its ability to authorize change and create new precedent. In order to fully articulate this final argument, I conclude with a reinterpretation of my interpretation of Laertes’ rebellion. By focusing on its formal qualities, I argue that the messenger’s speech reveals that custom allows Laertes and his followers to make a claim to revolutionary difference rather than revolutionary novelty. While I earlier interpreted the line “antiquity forgot, custom not known” as characterizing the rebellion as a break from custom, the line that precedes it—“as the world were now but to begin”—allows for a different understanding. This line figures the rebellion as reaching both backward and forward, to a primordial past and to the beginning of a new world. In the former case, the backward motion, the messenger’s description confers upon it the authority of a past prior to an­tiquity and custom. After all, what could be more powerful than custom, other than that which precedes it? By extending the logic of the authority of the old to its extreme, the messenger’s speech produces something other than rebellion. Revolution, it turns out, is even more ancient than rebellion. If we focus on the lines’ forward momentum, the messenger articulates the process by which c­ ustom comes into being and enfolds revolution into that process. Custom, Shakespeare reminds us, is not only involved in preserving the world but also in making it. Even though the political act here is very different than in Sir Thomas More, ­custom is still crucial to it in a surprisingly similar way. Further, Shakespeare makes a similar claim to Spenser when he insisted in the Letters that “rough words” will be “wonne with custome.”136 In both instances, these writers recognize that custom does not simply continue but also begins. But whereas Spenser draws upon the language of conquest and force, viewing custom as something imposed, Shakespeare imagines it as creating political possibilities, including revolution. The speech itself not only describes but also exemplifies the complex temporal dynamics of this potential revolution. At some moments, as one might expect, its meter expresses the temporal rupture that it describes. Thus, for example, the

136  See Chapter 3, section II.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

192  Custom, Common Law, and the Constitution caes­ura that separates “Antiquity forgot” from “custom not known” itself enacts an aural rupture. This same line breaks from the metrical pattern of iambic pentameter: ironically, it is the trochaic “custom” that does so. Finally, the ­messenger ­concludes his speech with an instance of parataxis, “Laertes king.” The absence of a grammatical relationship between the two words implies that, in the rebels’ eyes at least, there is no need for one: Laertes and kingship are identical. Parataxis here also has the effect of collapsing time: Laertes achieves his self-identity with kingship in a disquieting instant. At other moments, however, meter—and even syntax—are at odds with the sense of rupture the messenger strives to convey, presenting the rebellion instead as part of a continuous process. For example, the clause “Laertes shall be king,” which precedes that paratactic declaration of kingship, extends into the future by suggesting a process rather than an instantaneous transformation. Moreover, after the metrical upheavals of the previous line, the speech returns to a reassuringly conventional iambic pentameter. The term “impiteous haste” seems somehow an inappropriate descriptor once the rebels’ speech is pronounced in a metrical pattern that George Puttenham describes as “sweete and harmonicall.”137 It is as though the messenger cannot decide whether Laertes’s rebellion is an estranging break or a familiar replay of past moments that he himself has never experienced. The temporality of the rebellion turns out to be deeply ambiguous. Of course, since this is reported speech, we cannot be certain of the rebels’ exact words or their rhythms. But if we take the messenger’s report as a verbatim account, it reveals that revolutionary speech can possess a familiar, aural quality; it can match the patterns of sensible speech. Yet the possibility remains that the messenger himself reshapes the rebels’ more radical metrics to fit into the ­conventional pattern. Perhaps he is like the people who, having heard Ophelia’s “half sense,” “botch the words up fit to their own thoughts” (4.5.7, 10). Perhaps, too, he is like those mediocre poets who strain to reach the requirements of iambic p ­ entameter, or, as Robert Greene describes them, who “English Seneca read by candle light” and fancying themselves masters of the complexities of meter, “bodge vp a blanke verse with ifs and ands . . . ”138 On the one hand, this could be interpreted in the same light as the rebellion’s absence onstage. Like the missing rebels, their missing metrics register the difficulty or impossibility of fully staging a revolution. On the other hand, though, it puts the messenger himself in the position of someone who can detect the familiar within the radical after all.

137 Puttenham, The Arte of English Poesie (1589), eds. F. Whigham and W. Rebhorn (Ithaca: Cornell University Press, 2007), 109. 138 R. Greene, Menaphon (London: Printed by T[homas] O[rwin] for Sampson Clarke, 1589), **3r. Greene mocks Hamlet in the same passage. “English Seneca” can “yeeldes manie good sentences . . .  and if you intreate him faire in a frostie morning, he will affoord you whole Hamlets, I should say handfulls of tragical speaches.”

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Forgetting Custom?  193 Where does this complex play of temporality engendered by custom leave us? Custom, produced by repetition, might seem to be predictable by definition. Hamlet relies upon this aspect of custom when trying to convince Gertrude to stop sleeping with Claudius: That monster Custom . . . . . . is angel yet in this, That to the use of actions fair and good He . . . gives a frock or livery That aptly is put on. Refrain tonight And that shall lend a kind of easiness To the next abstinence.

(3.4.159–65)

Hamlet references the ability of repetition to change behavior. But it turns out that custom is revolutionary—or potentially revolutionary—in its peculiar ­combination of unpredictability and sustainability. The messenger’s speech at first appeared to strip custom of its generative power by attempting to discredit the rebellion by dissociating it from custom. It might seem, then, that custom here begins to take on the familiar, modern connotation of the conservative main­ten­ ance of the status quo. Yet, as I have argued, in this same moment, Shakespeare also reveals custom’s role in revolution. In doing so, Shakespeare pushes the ­representations of custom and its ability to create meaning by earlier sixteenthcen­tury literary writers to their political and formal extreme. Even when Hamlet, a play so strongly associated with modernity, appears to entail a rejection of ­custom, it also discloses the possibility of a strangely enduring power.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Conclusion Custom’s Futures

My aim in this book has been to unseat and reframe our perception of custom and thus to reshape our understanding of what we often identify as the start of modern literary history, the Renaissance. To place custom at the center of Renaissance literary production seems to emphasize literary repetition rather than change, literature’s relationship to the past rather than the future, and thus to make it anathema to forward-looking, novelty-seeking modernity. Therefore, as I wrote this book, a set of anxious questions dogged me: if custom is central to ­sixteenth-century literature, does this imply that we need to look elsewhere, to a later moment in time, for the inauguration of modern literature? If so, by stripping “The Renaissance” of its modernity, does my argument do a disservice to this literature and this period of time? Finally, at a time when the past is being more and more marginalized, does this project render sixteenth-century literature irrelevant by aligning it with custom? The first answer this conclusion will provide is “no.” As this book has shown, custom enables an astonishing range of literary experiments and political interventions by literary writers who engage with a remarkable array of sources about custom, from legal treatises to introductory legal textbooks, chronicle histories to documents of popular rebellion. As we have seen, rather than encouraging a conservative and nostalgic longing for the past, legal custom constitutes the foundation for the inaugural work of utopian fiction; it grounds a woman writer’s participation in and reshaping of humanist poetics, supports the quantitative verse project, and gives shape to romance and stage drama. It was a conceptual resource available to an established aristocrat like Philip Sidney, a rising political star like Thomas More, ambitious members of the middling sort like Edmund Spenser and William Shakespeare, and a woman in service like Isabella Whitney. For all of these writers, custom in the fictive world also becomes the basis for interrogating the meanings and limits of sovereignty. This conclusion will recapitulate the main yields of exploring sixteenth-century literature through the lens of legal custom, that is, through the lens of an alternative temporality to modern chronology, which, as critics have shown, is a necessary precursor to the possibility of novelty.1 The outcomes of this study can be grouped into the categories of literary and political authority. With respect to the former, I have argued that, by invoking

1  See Introduction, section IV. Custom, Common Law, and the Constitution of English Renaissance Literature. Stephanie Elsky, Oxford University Press (2020). © Stephanie Elsky. DOI: 10.1093/oso/9780198861430.001.0001

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Conclusion: Custom’s Futures  195 custom, whether explicitly or obliquely, English writers conceive of their own ­literary authority in terms of England’s constitutional dispensation, which relies upon collective authority. As a result, they authorize their writing through—and see themselves as inextricably part of—a commons. We have seen how More and Whitney construct their writing as part of a specifically discursive commons via the rhetorical figure of the commonplace, which functions as a compensation for the physically shrinking common lands and as an alternative to the intractable theoretical paradox of private property’s centrality to common law. Spenser and Harvey invoke custom to grapple with the relationship between the poet and the common authority of the (accent of the) language in which he writes. For Sidney, writing classical eclogues in the vernacular, custom engenders a liminal space between, on the one hand, the authority of a single writer, who might be conceived as breaking with an English past and, on the other, that of the common people, who can absorb that potential break through their practice. Finally, for Shakespeare and the multiple authors with whom he collaborated, custom becomes a dramatic resource for representing what they had been told was unrepresentable, popular rebellion. Taken together, these writers imagine their own efforts and authority as imbricated with a common authority. This book emphasizes that these works are collective, if not in the sense of a shared labor, then in the equally important conceptual sense: they view the power of what we consider individual authorial innovation as stemming from that imbrication with the ­commons rather than from breaking with it. The collectives to which these writers imagine themselves to belong extend beyond their contemporaries and into literary history. Because of custom’s strange temporal schema of “time immemorial,” when sixteenth-century writers appeal to it to construct a discursive commons, that commons becomes an ever-expanding temporal one. Custom allows them to inhabit the same space as past writers, especially classical ones. For More and Whitney, a shared language of custom in the discourse of common law and commonplace plays a crucial role in enabling this cohabitation. For Spenser, Harvey, and Sidney, custom allows them to reimagine the English language and their use of it in relationship to a past and foreign poetic form, whether it be the eclogue or quantitative verse. By stepping away from the period narrative of the melancholic author longing for the distant past from which he or she is cut off, we gain a vivid sense of how the past was present for these ­writers. But custom enables its presence in a way that expands the sense of a future for English poesis, a future that, as J.K. Barret has recently taught us, Renaissance writers themselves imagine to be uncertain, open-ended, and flexible.2 Similarly, in terms of political authority, custom opens up a range of political possibilities that, like literary authority, center, by and large, on the commons. 2 J.K. Barret, Untold Futures: Time and Literary Culture in Renaissance England (Ithaca: Cornell University Press, 2016), 3 and passim.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

196  Custom, Common Law, and the Constitution I have argued that sixteenth-century writers build upon the political meaning of custom as it was articulated by sixteenth-century politicians, lawyers, and his­tor­ ians—while in some cases going even further than them. Perhaps the most extreme example of this is Shakespeare’s use of custom to imagine a revolution in the making. At times, though, by recognizing the contingency of custom as a foundation for constitutionalism, literary writers become even more radical than their contemporaries in the legal and political realm. Indeed, these latter figures tend to overlook (even suppress) the precarious nature of custom almost entirely. By contrast, when custom forms the basis for a society without private property like Utopia, the incongruity of custom as that which protects private property in England is highlighted; Whitney underscores this same contradiction when she places her poetry in conversation with sixteenth-century popularizers of c­ ommon law. More also shows us that this same society uses custom to create col­onies, a dynamic that comes to fruition in disturbing ways in Spenser’s writing on Ireland. The idea of a consensual conquest at the heart of custom-as-common law that was celebrated by politicians and historians alike is transformed into a justification for coercion. Sidney, too, recognizes how this possibility exists within a country rather than outside its borders, as the Old Arcadia treats adherence to custom as critical for even-handed rulership, yet also as a means by which a ruler can seduce the people into obedience and submission. With these readings I do not mean to suggest that this group of writers insinuates that custom, in its flexibility, ultimately is useless for constitutionalist politics. Rather, they importantly remind their readers not to assume that an abstract legal concept will always work to a single ideological or political end. The law, that is, may always be political— but not always in the same way. Indeed, in the seventeenth century, custom, which seems so inextricably linked with parliament and the people, was coopted for absolutist and royalist purposes. One example of this is the 1637–8 Ship Money case, widely regarded by historians as a key episode leading up to the English Civil War. Ship money referred to a tax that coastal counties paid for extra protection in times of emergency, which Charles I recently had expanded without the approval of parliament, or even consulting them. The case, and the debates that preceded it, centered on the king’s ability to levy extra-parliamentary taxes. As we might have expected, the Puritan lawyer William Prynne turned to the ancient constitution to argue for its illegality even before a case was brought to court.3 This became a well-worn strategy for parliamentarians. Perhaps more surprising, though, when John Hampden’s refusal to pay ship money brought the issue before the court, Charles I’s attorney general, Sir John Banks, recognizing the power of the ancient constitution, asserted that it was the king’s prerogative rather than common law that had existed 3 J. Greenberg, The Radical Face of the Ancient Constitution: St. Edward’s “Laws” in Early Modern Political Thought (Cambridge: Cambridge University Press, 2001), 172–3.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

Conclusion: Custom’s Futures  197 since time immemorial.4 The judges, whose opinions invoked the ancient ­constitution, ruled in the king’s favor. The temporal authority of custom was not always a stable ground for political arguments. This turn of events would not have surprised sixteenth-century writers. Ironically, even as they root their work in the past, they anticipate the tensions and contradictions of custom. They recognize and begin to think through problematics regarding the nature and limits of sovereignty in the literary realm before they have even reached the realm of the political or theoretical. Even as they entertain radical possibilities, these writers register custom’s limits, voicing in the literary realm what could not—or could not yet—be voiced in the political one. In the Introduction, I mentioned that my book builds upon and contributes to the work of historians like Janelle Greenberg and Alan Cromartie, who have challenged the longstanding narrative by which custom and the ancient constitution was largely a Stuart phenomenon—at least in their political usage.5 Yet, by looking at an archive they have not, sixteenth- and early seventeenth-century literature, we can also see that the political ambiguities of custom arose much earlier than these scholars note it. By demonstrating the anticipatory nature of sixteenthcentury literature in its use of custom, I have shown too that custom poses a challenge to the chronologies by which we organize not only our aesthetic histories but also our political ones. For the purposes of this conclusion, I have divided the political yields from the literary ones, but perhaps the most crucial point is that, in the works themselves, the two cannot be disentangled. Ultimately, I have aimed to offer a poetics and politics of law. That is, my book points to the discourse of law as the point where poetics and politics productively merge. This is not to say that literature thereby loses its identity, becoming just another discourse among many. Indeed, my attention to literary form shows that this does not necessarily need to be the result of their merging. Rather, in its most distilled form, this book teaches us that to study law and literature is to study law, politics, and literature. The archive of custom shows that it is well worth pursuing this nexus in future studies. These results of literary writers’ treatment of custom as a generative concept dispel the objections with which this conclusion began. Nevertheless, I have come to realize, more importantly, that the questions themselves are the wrong ones to ask. Custom teaches us that, rather than asking whether these texts force us to look for modernity elsewhere, we would do better to attend to how they invite us to discover what is revealed when we shed our own longing for novelty. This book opens by looking at Milton as an emblematic figure for custom’s loss of authority

4 Ibid., 174. On the incoherence of the royalist argument in this case, see A.  Cromartie, The Constitutionalist Revolution: An Essay on the History of England (Cambridge: Cambridge University Press, 2006), 237–9. 5  See Introduction, section IV.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 30/07/20, SPi

198  Custom, Common Law, and the Constitution or “deterioration”— to borrow Raymond William’s term—over time.6 I would like to close, however, by suggesting that we should pay attention to how custom, in its intertwined legal and literary iterations, pushes us to value different kinds, modes, and tempos of change—literary and otherwise—in modernity. In other words, rather than trying to locate the moment in which novelty triumphs, literary scholars should consider where and how other kinds of change exert an as yet unrecognized force in literary production, even and especially in the period we call “modernity.”

6 R. Williams, Keywords: A Vocabulary of Culture and Society, rev. ed. (Oxford: Oxford University Press, 1983), 69.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography Primary Sources Printed Books with Marginalia British Library C.38.a.11. More, Thomas. A Fruteful and Pleasaunte Worke of the Best State of a Publique Weal, and of the New Yle Called Vtopia. Trans. Raphe Robinson. London: Abraham Vele, 1551. 231.a.39. More, Thomas. A Fruteful and Pleasaunte Worke of the Best State of a Publique Weal, and of the New Yle Called Vtopia. Trans. Raphe Robinson. London: Abraham Vele, 1556.

Folger Shakespeare Library STC 18094.1. More, Thomas. A Fruteful, and Pleasaunt Worke of the Best State of a Publyque Weale, and of the Newe Yle called Vtopia. Trans. Raphe Robynson. London: Abraham Vele, 1551. STC 18094.2. More, Thomas. A Fruteful and Pleasaunte Worke of the Best State of a Publique Weal, and of the New Yle Called Vtopia. Trans. Raphe Robinson. London: Abraham Vele, 1551. STC 18095.2. More, Thomas. A Frutefull Pleasaunt, [and] Wittie Worke, of the Best State of a Publique Weale, and of the Newe Yle, Called Vtopia. London: Abraham Vele, 1556. STC 18096.1. More, Thomas. A Most Pleasant, Fruitfull, and Wittie Worke of the Best State of the Publique Weale, And of the New Yle Called Vtopia. Trans. Raphe Robinson. London: Thomas Creede, 1597. STC 18096.2. More, Thomas. A Most Pleasant, Fruitfull, and Wittie Worke of the Best State of the Publique Weale, And of the New Yle Called Vtopia. Trans. Raphe Robinson. London: Thomas Creede, 1597.

Printed Books Anon. An Aunswere to the Proclomation of the Rebels in the North. London: William Seres, 1569. Anon. “Testamentum Asini.” In Carmina Medii Aevi. Ed. Francesco Novati. Florence: Libreria Dante, 1883, 79–81. Anon. “The Wyll of the Devyll” (1548). Ed. Frederick Furnivall. London, 1871. Aristotle. Nicomachean Ethics. Trans. David Ross. Rev. J.K.  Ackrill and J.O.  Urmson. Oxford: Oxford University Press, 1986. Aristotle. Politics. Trans. Benjamin Jowett. New York: Modern Library, 1943. Ascham, Roger. The Scholemaster. London: John Day, 1570. Aylmer, John. An Harborowe for Faithfull and Trewe Subiectes agaynst the Late Blowne Blaste, Concerninge the Gouernment of Wemen. Strasborowe: John Day, 1559.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

200 Bibliography Blackstone, William. Commentaries on the Laws of England, Book IV: Of Public Wrongs. Ed. R. Paley. Oxford: Oxford University Press, 2016. Bracton, Henri de. De Legibus et Consuetudinibus Angliae. Trans. Samuel Thorne. Cambridge: Belknap Press, 1968. http://hlsl5.law.harvard.edu/bracton. Camden, William. Remaines Concerning Britain. Ed. R.D.  Dunn. Toronto: University of Toronto Press, 1984. Chaloner, Thomas. The Praise of Folie. London: Thomas Bertelet, 1549. Cicero, Marcus Tullius. On Old Age, On Friendship, On Divination. Trans. William  A. Falconer, Loeb Classical Library. Vol. 154. Cambridge, MA: Harvard University Press, 2001. [Cicero]. Rhetorica Ad Herennium. Trans. Harry Caplan. Cambridge, MA: Harvard University Press, 1954. Coke, Edward. The Selected Writings and Speeches of Sir Edward Coke. Ed. Steve Sheppard. Vol. 1. Indianapolis: The Liberty Fund, 2003. Cooper, Thomas. Thesaurus Lingvae Romanae & Britannicae. London: Henry Denham, 1565. Copeland, Robert. “Jyl of Braintford's Testemant” (1535). Ed. Frederick Furnivall. London, 1871. Cowell, John. The Interpreter. Cambridge: Printed by John Legate, 1607. Davies, Sir John. A Discouerie of the True Causes why Ireland was Neuer Entirely Subdued. London, 1612. Davies, Sir John. Le Primer Report des Cases & Matters en Ley Resolues & Adiudges en Les Courts del Roy en Ireland. Dublin: John Franckton, 1615. de las Casas, Bartolomé. History of the Indies. Ed. and trans. Andreé Collard. NewYork: Harper & Row, 1971. The Digest of Justinian. Vol. I. Eds. Theodor Mommsen, Paul Kreuger, and Alan Watson. Philadelphia: University of Pennsylvania Press, 1985. Du Plessis-Mornay, Philippe, and Hubert Languet. A Defence of Liberty Against Tyrants: A Translation of the Vindiciae Contra Tyrannos by Junius Brutus. London: G.  Bell and Sons, Ltd., 1924. Elyot, Thomas. The Dictionary of Sir Thomas Eliot. London: Thomas Berthelet, 1538. Erasmus, Desiderius. Adages: I i 1-I v 100. In The Collected Works of Erasmus. Vol. XXXI. Trans. M.  Mann Phillips, Ed. R.A.B.  Mynors. Toronto: University of Toronto Press, 1982. Erasmus, Desiderius. Adages: II i 1 to II vi 100. In The Collected Works of Erasmus. Vol. XXXIII. Ed. R.A.B. Mynors. Toronto: University of Toronto Press, 1991. Erasmus, Desiderius. Adages: II vii 1 to III ii 100. In The Collected Works of Erasmus, Vol. XXXIV. Ed. R.A.B. Mynors. Toronto: University of Toronto Press, 1992. Erasmus, Desiderius. The Adages of Erasmus. Ed. William Barker. Toronto: University of Toronto Press, 2001. Erasmus, Desiderius. Apophthegmata. Trans. Nicholas Udall. London: Richard Grafton, 1542. Erasmus, Desiderius. The Correspondence of Erasmus. In The Complete Works of Erasmus. Vol. I.  Eds. R.A.B.  Mynors and D.F.S.  Thomson. Toronto: University of Toronto Press, 1974. Erasmus, Desiderius. De Copia: In The Collected Works of Erasmus. Vol. XXIV. Trans. Betty I. Knott. Toronto: University of Toronto Press, 1978. Erasmus, Desiderius. De Ratione Studii. In The Collected Works of Erasmus. Ed. Craig R. Thompson. Vol. XXIV. Toronto: University of Toronto Press, 1978. Erasmus, Desiderius. Opera Omnia. Eds. M.L. van Poll-van de Lisdonk and M. Cytowska. Vol. II-1. Amsterdam and New York: Elsevier, 1993.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography  201 Erasmus, Desiderius. The Praise of Folly and Other Writings. Ed. Robert Adams. New York and London: W.W. Norton & Co., 1999. Erasmus, Desiderius. Prouerbes or Adagies. Trans. Richard Taverner. London: R. Banks, 1539. Fabyan, Robert. The New Chronicles of England and France, in Two Parts (1516). Ed. Henry Ellis. London: F.C. and J. Rivington, et. al., 1811. Fortescue, John. De Laudibus Legum Angliae. Trans. S.B. Chrimes. Cambridge: Cambridge University Press, 1942. Fortescue, John. De Laudibus Legum Anglie. Trans. S.B. Chrimes. Cambridge: Cambridge University Press, 1949. Fortescue, John. On the Laws and Governance of England. Ed. Shelley Lockwood. Cambridge: Cambridge University Press, 1997. Foxe, John. Actes and Monuments. Ed. George Townsend. New York: AMS Press, 1965. Foxe, John. The Gospel of the Fowr Evangelistes. London: John Day, 1571. Fraunce, Abraham. The Arcadian Rhetorike, or the Præcepts of Rhetorike Made Plaine by Examples. London: Thomas Orwin, 1588. Fuller, Thomas. The History of the Worthies of England (1662). Vol. 3. Ed. P. Austin Nuttal. London: Thomas Tegg, 1840. Galfridus. Ortus Vocabulorum. Westminster: Wynkyn de Worde, 1500. Gascoigne, George. “Dan Bartholomew His Last Will and Testament.” In A Hundreth Sundrie Flowres. London: Henry Bynneman, 1573, 436–8. Gosson, Stephen. The School of Abuse. 1579. Ed. J.P. Collier. London: F. Shorbel, 1841. Grafton, Richard. An Abridgement of the Chronicles of England. London: Richard Tottel, 1572. Greene, Robert. Menaphon. London: Printed by T[homas] O[rwin] for Sampson Clarke, 1589. Greville, Fulke, Lord Brooke. The Prose Works of Fulke Greville, Lord Brooke. Ed. John Gouws. Oxford: Clarendon Press, 1986. Harding, Thomas. A Confutation. Antwerp, 1565. Harpsfield, Nicholas. The Life and Death of Sir Thomas More. Oxford: Early English Text Society, 1932. Harrison, William. The Description of England (1577). Ed. Georges Edelen. Ithaca: Cornell University Press, 1968. Harvey, Gabriel, and Edmund Spenser. The Spenser-Harvey Correspondence. In Elizabethan Critical Essays. Vol. 1. Ed. G.G. Smith. Oxford: Clarendon Press, 1904. Harvey, Gabriel, and Edmund Spenser. Three Proper, and Wittie, Familiar Letters. London: H. Bynneman, 1580. Hayward, John. The First and Second Parts of the Life and Raigne of Henry IIII. Ed. John J. Manning. Cambridge: Cambridge University Press, 1995. Hedley, Thomas. “June 28, 1610 Speech in Parliament.” In Proceedings in Parliament, 1610. Ed. Elizabeth Read Foster. Vol. 2. New Haven: Yale University Press, 1966, 192. Hoddesdon, John.Tho. Mori Vita & Exitus: Or the History of Thomas More, Sometime Lord High Chancellor of England. London: E. Cotes, 1652. Holinshed, Raphael. The First Volume of the Chronicles of England, Scotland, and Ireland. London: John Hunne, 1577. Holinshed, Raphael. The Third Volume of Chronicles of England, Scotland, and Ireland. London: Henrie Denham, 1586. Holinshed, Raphael. Holinshed’s Chronicles of England, Scotland, and Ireland. London: J. Johnson, 1807. Holland, Philomen. The Roman Historie. London, 1600.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

202 Bibliography Horace, Ars Poetica. In Satires. Epistles. The Art of Poetry, trans. H.  Rushton Fairclough, Loeb Classical Library 194. Cambridge, MA: Harvard University Press, 1926. Hoskyns, John. Direction for Speech and Stile. c. 1599. British Library MS Harley 4604. Jowett, John, ed. Sir Thomas More. London: Arden Shakespeare, 2011. Lacy, John. Wyl Bucke his Testament. London: William Copland, 1560. Lambarde, William. Archainomia. London: for John Day, 1568. Lambarde, William. Archeion, or A Discourse Vpon the High Courts of Justice in England. London: Henry Seile, 1635. Lambarde, William. Perambulation of Kent. London: for Ralphe Newberie, 1576. Lambarde, William. Perambulation of Kent. Bath: Adams and Dart, 1970. Littleton, Thomas. Littleton’s Tenures in English. Ed. Eugene Wambaugh. Washington, DC: John Byrne and Co., 1903. Machiavelli. Discourses on Livy. Trans. and eds. Julia Conaway Bondanella and Peter Bondanella. Oxford: Oxford University Press, 1997. Meres, Francis. The Second Parte of Wits Commonwealth. London, 1589. Meres, Francis. Palladis tamia. Wits treasury being the second part of Wits common wealth. London: Printed by P. Short for Cuthberg Burbie, 1598. Milton, John. The Doctrine and Discipline of Divorce. Complete Prose Works of John Milton. Ed. Ernest Sirluck. Vol. 2. New Haven: Yale University Press and London: Oxford University Press, 1959. Milton, John. Areopagitica. In John Milton: The Major Works. Eds. Stephen Orgel and Jonathan Goldberg. Oxford: Oxford University Press, 2003. Milton, John. Paradise Lost. Ed. Merritt Hughes. Indianapolis and Cambridge: Hackett Publishing, 2003. Milton, John. Tenure of Kings and Magistrates. In John Milton: The Major Works. Eds. Stephen Orgel and Jonathan Goldberg. Oxford: Oxford University Press, 2003. More, Thomas. In Defense of Humanism: Letters to Dorp, Oxford, Lee, and a Monk. In The Complete Works of St. Thomas More. Ed. Donald Kinney. Vol. 15. New Haven: Yale University Press, 1986. More, Thomas. Utopia. In The Complete Works of St. Thomas More. Eds. Edward Surtz and J.H. Hexter. Vol. 4. New Haven: Yale University Press, 1965. More, Thomas. Utopia: Latin Text and English Translation. Eds. George Logan and Robert Adams. Cambridge: Cambridge University Press, 1995. Mulcaster, Robert. “To The Right Worshipfull Ihon Walsh, Esquire.” In A Learned Commendation of the Politique Lawes of England. London: Richard Tottel, 1567, A2r–A3v. Nashe, Thomas. Have with You to Saffron-Walden. London: John Danter, 1596. Nashe, Thomas. Strange News. London: John Danter, 1593. Norton, Thomas. To the Quenes Maiesties Poor Deceyued Subiectes of the North Countrey, Drawen into Rebellion by the Earles of Northumberland and Westmerland. London: Henry Bynneman, 1569. Peacham, Henry. The Garden of Eloquence. Menston, England: Scolar Press, 1971. Phaer, Thomas. A New Boke of Presidentes. London: Edward Whitechurch and R. Banks, 1543. Plat, Hugh. The Floures of Philosophie. London, F. Coldocke and H. Bynneman. 1572. Polybius. The Histories. Trans. Robin Waterfield. Oxford: Oxford University Press, 2010. Puttenham, George. The Arte of English Poesie (1589). Eds. Frank Whigham and Wayne Rebhorn. Ithaca: Cornell University Press, 2007. Quintilian, Institutio Oratio. Vol. I.  Books 1-2. Trans. D.  A.  Russell. Cambridge, MA: Harvard University Press, 2001.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography  203 Quintilian. Institutio Oratio. Vol. II. Books 3–5. Trans. Donald A. Russell. Cambridge, MA: Harvard University Press, 2002. Rastell, William. Exposicions. London: John Rastell, 1523. Rastell, William. The Statutes. London: John Rastell, 1527. Roper, William. “The Life of Sir Thomas More (c. 1556).” In A Thomas More Source Book. Eds. Gerard Wegemer and Stephen Smith. Washington: Catholic University of America Press, 2004, 16–65. St. German, Christopher. The Doctor and Student. Ed. William Muchall. Cincinnati: R. Clarke & Co., 1874. St. German, Christopher. Doctor and Student. Eds. T.F.T.  Plucknett and J.L.  Barton. London: Publications of the Selden Society, 1975. Shakespeare, William. 1 Henry IV. In The Norton Shakespeare. Eds. Stephen Greenblatt, Walter Cohen, Jean E. Howard, and Katharine Eisaman Maus. New York and London: W.W. Norton & Co., 1997. Shakespeare, William. 2 Henry VI. In The Norton Shakespeare. Eds. Stephen Greenblatt, Walter Cohen, Jean E. Howard, and Katharine Eisaman Maus. New York and London: W.W. Norton & Co., 1997. Shakespeare, William. Cymbeline. In The Norton Shakespeare. Eds. Stephen Greenblatt, Walter Cohen, Jean E. Howard, and Katharine Eisaman Maus. New York and London: W.W. Norton & Co., 1997. Shakespeare, William. Hamlet. Eds. Ann Thompson and Neil Taylor. London: The Arden Shakespeare, 2006. Shakespeare, William. Richard II. In The Norton Shakespeare. Eds. Stephen Greenblatt, Walter Cohen, Jean E. Howard, and Katharine Eisaman Maus. New York and London: W.W. Norton & Co., 1997. Shakespeare, William. Shakespeare’s Sonnets. Ed. Stephen Booth. New Haven: Yale University Press, 2000. Sherry, Richard. A Treatise of Schemes and Tropes. London: John Day, 1550. Sidney, Philip. The Apology for Poetry. Ed. Geoffrey Shepard. Manchester: Manchester University Press, 1973. Sidney, Philip. Astrophil and Stella. In Defence of Poesie, Astrophil and Stella, and Other Writings. Ed. Elizabeth Porges-Watson. London: J.M. Dent, 1997. Sidney, Philip. The Correspondence of Sir Philip Sidney. Ed. Roger Kuin. Oxford: Oxford University Press, 2012. Sidney, Philip. The Countess of Pembroke’s Arcadia (The New Arcadia). Ed. Victor Skretkowicz. Oxford: Clarendon Press, 1987. Sidney, Philip. The Countess of Pembroke’s Arcadia (The Old Arcadia). Ed. Jean Robertson. Oxford: Clarendon Press, 1973. Sidney, Philip. A Defence of Poetry. In The Miscellaneous Prose of Sir Philip Sidney. Eds. Katherine Duncan-Jones and Jan Van Dorsten. Oxford: Clarendon Press, 1973. Sidney, Philip. Defense of Poesie. In Defense of Poesie, Astrophil and Stella, and Other Writings. Ed. Elizabeth Porges-Watson. London: JM Dent, 1997. Sidney, Philip. “Letter to Queen Elizabeth, 1580.” In The Miscellaneous Works of Sir Philip Sidney, Knt. Ed. William Gray. Boston: T.O.H.P. Burnham, 1860, 239–53. Sidney, Philip. “A Letter Written by Sir Philip Sidney to Queen Elizabeth, Touching Her Marriage with Monsieur.” In The Miscellaneous Prose of Sir Philip Sidney. Eds. Jan van Dorsten and Katherine Duncan- Jones. Oxford: Oxford University Press, 1973 Sidney, Philip. The Old Arcadia. Ed. Katherine Duncan-Jones. Oxford: Oxford University Press, 1994.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

204 Bibliography Smith, Thomas. De Republica Anglorum, Ed. L. Alston. Cambridge: Cambridge University Press, 1906. Smith, Thomas. De Republica Anglorum. Ed. Mary Dewar. Cambridge: Cambridge University Press, 2009. E. Spenser. A View of the Present State of Ireland. Eds. A. Hadfield and W. Maley. Oxford: Blackwell Publishers, 1997. Spenser, Edmund. A View of the Present State of Ireland. Ed. W.L.  Renwick. London: Clarendon Press, 1970. Spenser, Edmund. The Shorter Poems. Eds. William Oram, Einar Bjorvand, Ronald Bond, Thomas H. Cain, Alexander Dunlop, and Richard Schell. New Haven: Yale University Press, 1989. Spenser, Edmund. The Faerie Queene. Ed. A.C. Hamilton, 2nd ed. London: Routledge, 2001. Starkey, Thomas. A Dialogue Between Reginald Pole and Thomas Lupset. Ed. Kathleen M. Burton. London: Chatto and Windus, 1948. Stow, John. A Summarie of English Chronicles. London: Thomas Marsh, 1573. Stuart, James. The Trew Law of Free Monarchies. In King James VI and I: Political Writings. Ed. J.P. Sommerville. Cambridge: Cambridge University Press, 1994. Taverner, Richard. Institutions or Principal Grounds of the Laws and Statutes of England. London: W. Middleton, 1544. Taverner, Richard. The Second Book of the Garden of Wisdom. London; R. Banks, 1542. Thomas, Thomas. Dictionarvm Lingvae Latinae et Anglicanae. Canterbury: Thomas Thomas, 1587. Tottel, Richard. “The Testament of the Hawthorne.” In Tottel’s Miscellany, 1557–1587. Ed. Hyder Rollins. Vol. 1. Cambridge, MA: Harvard University Press, 1968, 248–50. Verstegan, Richard. A Restitution of Decayed Intelligence. Yorkshire: Scolar Press, 1976. Ware, James. ed. The Historie of Ireland. 2 Vols. Dublin: Society of Stationers, 1633. Webbe, William. A Discourse of English Poetry. London: Iohn Charlewood, 1586. Whitney, Geoffrey. A Choice of Emblems and Other Devises. Leidin: Plantin Press, 1586. Whitney, Isabella. A Sweet Nosgay. In Three Renaissance Women Poets: Lanyer, Whitney, Sidney. Ed. Danielle Clarke. New York: Penguin Press, 2001. Whitney, Isabella. A Sweet Nosgay, or Pleasant Posye. London: R. Jones, 1573.

Secondary Sources Alexander, Gavin. “Sir Philip Sidney’s Arcadia.” In The Oxford Handbook of Prose, 1500–1640. Ed. Andrew Hadfield. Oxford: Oxford University Press, 2013, 219–34. Alexander, Gavin. Writing After Sidney: The Literary Response to Sir Philip Sidney, 1586–1640. Oxford: Oxford University Press, 2006. Altman, Joel. The Tudor Play of Mind: Rhetorical Inquiry and the Development of Elizabethan Drama. Berkeley: University of California Press, 1978. Anderson, Randall. “Metaphors of the Book as Garden in the English Renaissance.” The Yearbook of English Studies 33 (2003). Arendt, Hannah. On Revolution. New York: The Viking Press, 1963. Armitage, David. “Ideas of Civil War in Seventeenth-Century England.” Annals of the Japanese Association for the Study of Puritanism 4.1 (2009), 4–18. Attridge, Derek. Well-Weighed Syllables: Elizabethan Verse in Classical Meter. London: Cambridge University Press, 1974.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography  205 Baker, David J. Between Nations: Shakespeare, Spenser, Marvell, and the Question of Britain. Stanford: Stanford University Press, 1997. Baker, John Hamilton Baker and Samuel Thorne. eds. Readings and Moots at the Inns of Court in the Fifteenth Century. Vol. 2. London: Selden Society, 1990. Baker, John Hamilton. An Introduction to English Legal History, 4th ed. Oxford: Oxford University Press, 2005. Baker, John Hamilton. The Law’s Two Bodies: Some Evidential Problems in English Legal History. Oxford: Oxford University Press, 2001. Baker, John Hamilton. The Oxford History of the Laws of England: 1483–1558. Vol 6. Oxford: Oxford University Press, 2003. Baptiste, Victor N. Bartolomé de las Casas and Thomas More’s Utopia: Connections and Similarities. Culver City, CA: Labyrinthos, 1990. Barret, J.K. Untold Futures: Time and Literary Culture in Renaissance England. Ithaca: Cornell University Press, 2016. Bartolovich, Crystal. “ ‘Optimism of the Will’: Isabella Whitney and Utopia.” Journal of Medieval and Early Modern Studies 39.2 (2009), 407–32. Bateson, Mary. Borough Customs. Vol. 2. London: Selden Society Publications, 1906. Bearden, Elizabeth. The Emblematics of the Self: Ekphrasis and Identity in Renaissance Imitations of Greek Romance. Toronto: University of Toronto Press, 2012. Ben Yishai, Ayelet. Common Precedents: The Presentness of the Past in Victorian Law and Fiction. Oxford: Oxford University Press, 2013. Berger, Harry. Revisionary Play: Studies in the Spenserian Dynamic. Berkeley: University of California Press, 1988. Blair, Ann. The Theater of Nature: Jean Bodin and Renaissance Science. Princeton: Princeton University Press, 1992. Blank, Paula. Broken English: Dialects and the Politics of Language in Renaissance Writings. London: Routledge Press, 1996. Blank, Paula. Shakespeare and the Mismeasure of Renaissance Man. Ithaca: Cornell University Press, 2006. Bloch, Howard. Etymologies and Genealogies: A Literary Anthology of the French Middle Ages. Berkeley: University of California Press, 1986. Boesky, Amy. Founding Fictions: Utopias in Early Modern England. Athens and London: The University of Georgia Press, 1996. Bradshaw, Brendan. The Irish Constitutional Revolution of the Sixteenth Century. Cambridge: Cambridge University Press, 1979. Brady, Ciáran. The Chief Governors: The Rise and Fall of Reform Government in Tudor England, 1536–1588. Cambridge: Cambridge University Press, 1994. Brady, Ciáran. “The Road to the View: On the Decline of Reform Thought in Tudor England.” In Spenser and Ireland: An Interdisciplinary Perspective. Ed. Patricia Coughlan. Cork: Cork University Press, 1989, 25–45. Brand, Paul. “Law and Custom in the English Thirteenth Century Common Law.” In Custom: The Development and Use of a Legal Concept in the Middle Ages. Eds. Per Andersen andMia Münster-Swendsen. Copenhagen: DJØF Publishing, 2009, 17–31. Breckman, Warren. “Lefort and the Symbolic Dimension.” Claude In Lefort: Thinker of the Political. Ed. Martin Plot. London: Palgrave, 2013, 176–85. Briggs, W.D. “Political Ideas in Sidney’s Arcadia.” Studies in Philology 28.2 (1931), 137–61. Brooks, Christopher. Law, Politics, and Society in Early Modern England. Cambridge: Cambridge University Press, 2008. Brooks, Christopher, and Kevin Sharpe. “History, English Law, and the Renaissance.” Past & Present 72.1 (1976), 133–42.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

206 Bibliography Burgess, Glenn. The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603–1642. University Park: Pennsylvania State University Press, 1992. Burke, Kenneth. “The Invention of Leisure in Early Modern Europe.” Past & Present 146.1 (February 1995), 136–50. Bush, E.S. Popular Politics and the English Reformation. Cambridge: Cambridge University Press, 2003. Bush, Michael. The Pilgrimage of Grace: A Study of the Rebel Armies of October 1536. Manchester: Manchester University Press, 1996. Butterfield, Ardis. The Familiar Enemy: Chaucer, Language, and Nation in the Hundred Years War. Oxford: Oxford University Press, 2009. Cairns, John W. “Blackstone as an English Institutist: Legal Literature and the Rise of the Nation State.” Oxford Journal of Legal Studies 4.3 (1984), 318–60. Cairns, John  W. “Introduction.” In Reassessing Legal Humanism and its Claims: Petere Fontes? Eds. John W. Cairns and Paul J. Du Plessis. Edinburgh: Edinburgh University Press, 2016, 1–8. Cheyette, Frederic. “Custom, Case Law, and Medieval ‘Constitutionalism’: A Re-Examination.” Political Science Quarterly 78.3 (September 1963), 362–90. Clanchy, M.T. From Memory to Written Record, 1066–1307, 3rd ed. Chichester: WileyBlackwell, 2012. Cockburn, James  S. A History of English Assizes, 1558–1714. Cambridge: Cambridge University Press, 1972. Cook, Megan. The Poet and the Antiquaries: Chaucer and the Rise of Literary History, 1532–1635. Philadelphia: University of Pennsylvania Press, 2019. Cormack, Bradin. A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509–1625. Chicago: University of Chicago Press, 2007. Crane, Mary Thomas. Framing Authority: Sayings, Self, and Society in Sixteenth-Century England. Princeton: Princeton University Press, 1993. Crawforth, Hannah. Etymology and the Invention of English in Early Modern Literature. Cambridge: Cambridge University Press, 2013. Cromartie, Alan. The Constitutionalist Revolution: An Essay on the History of England. Cambridge: Cambridge University Press, 2006. Cromartie, Alan. “The Idea of Common Law as Custom.” In The Nature of Customary Law. Eds. Amanda Perreau-Saussine and James Murphy. Cambridge: Cambridge University Press, 2009. Cross, Rupert, and J.W.  Harris. Precedent in English Law, 4th ed. Oxford: Clarendon Press, 1991. Cunningham, Karen. Imaginary Betrayals: Subjectivity and the Discourses of Treason in Early Modern England. Philadelphia: University of Pennsylvania Press, 2002. Danzig, Richard. “Hadley v. Baxendale: A Study in the Industrialization of the Law.” Legal, Historical, and Philosophical Perspectives The Journal of Legal Studies 4.2 (1975), 249–84. Das, Nandini. Renaissance Romance: The Transformation of English Prose, 1570–1620. Farnham: Ashgate, 2011. Davis, Alex. “Revolution by Degrees: Philip Sidney and Gradatio.” Modern Philology: Critical and Historical Studies in Literature, Medieval Through Contemporary 108.4 (May 2011), 488–506. Davis, Kathleen. Periodization and Sovereignty: How Ideas of Feudalism and Secularization Govern the Politics of Time. Philadelphia: University of Pennsylvania Press, 2008. de Grazia, Margreta. Hamlet without Hamlet. Cambridge: Cambridge University Press, 2007.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography  207 de Grazia, Margreta. “The Modern Divide: From Either Side.” Journal of Medieval and Early Modern Studies 37.3 (Fall 2007), 453–7. Dipple, Elizabeth. “ ‘Unjust Justice’ in the Old Arcadia.” Studies in English Literature 10.1 (1970), 83–100. Doe, Norman. Fundamental Authority in Late Medieval English Law. Cambridge: Cambridge University Press, 1990. Dolan, Frances E. “Early Modern Literature and the Law.” Huntington Library Quarterly 71.2 (June 2008), 351–64. Dolven, Jeff. Scenes of Instruction in Renaissance Romance. Chicago: The University of Chicago Press, 2007. Doyle, Charles Clay. “On Some Antecedents of More’s Epigrams 199, 210, and 214.” Moreana 36.3–4 (December 1999), 49–56. Du Plessis, Paul J. Borkowski’s Textbook on Roman Law, 5th ed. Oxford: Oxford University Press, 2010. Duxbury, Neil. “Custom as Law in English Law.” The Cambridge Law Journal 76.2 (2017), 337–59. Duxbury, Neil. The Nature and Authority of Precedent. Cambridge: Cambridge University Press, 2008. Eden, Kathy. Friends Hold All Things in Common: Tradition, Intellectual Property, and the Adages of Erasmus. New Haven: Yale University Press, 2001. Ellinghausen, Laurie. “Literary Property and the Single Woman in Isabella Whitney’s A Sweet Nosegay”. Studies in English Literature 45.1 (Summer 2005), 1–22. Elsky, Stephanie. “Lady Anne Clifford’s Common-Law Mind.” Studies in Philology 111.3 (Summer 2014), 521–46. Elsky, Stephanie. “ ‘Wonne with Custome’: Conquest and Etymology in the Spenser–Harvey Correspondence and A View of the Present State of Ireland.” Spenser Studies Vol. 28 (2013), 165–92. Enterline, Lynn. Shakespeare’s Schoolroom. Philadelphia: University of Pennsylvania Press, 2012. Erickson, Amy Louise. Women and Property in Early Modern England. London: Routledge Press, 1993. Flynn, Bernard. The Philosophy of Claude Lefort. Evanston: Northwestern University Press, 2005. Fogarty, Anne. “The Colonization of Language: Narrative Strategy in A View of the Present State of Ireland and The Faerie Queene, Book VI.” In Spenser and Ireland: An Interdisciplinary Perspective. Ed. Patricia Coughlan. Cork: Cork University Press, 1989, 75–108. Fox, Adam. Oral and Literature Culture, 1500–1700. Oxford: Clarendon Press, 2001. Fox, Alistair. “The Paradoxical Design of The Book of Sir Thomas More.” Renaissance and Reformation 17.3 (1981), 162–73. Friedman, Albert  B. “ ‘When Adam Delved . . . ’: Contexts of an Historic Proverb.” In The Learned and the Lewed: Studies in Chaucer and Medieval Literature. Ed. Larry D. Benson. Cambridge, MA: Harvard University Press, 1974, 213–30. Grafton, Anthony. What Was History? The Art of History in Early Modern Europe. Cambridge: Cambridge University Press, 2007. Grafton, Anthony, and Lisa Jardine. “ ‘Studied for Action’: How Gabriel Harvey Read His Livy.” Past & Present 129.1 (1990), 30–78. Graham, Howard Jay, and John W. Heckel. “The Book that ‘Made’ the Common Law: The First Printing of Fitzherbert’s La Graunde Abridgement, 1514–1516.” Law Library Journal 51.2 (1958), 100–16.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

208 Bibliography Greenberg, Janelle. The Radical Face of the Ancient Constitution: St. Edward’s “Laws” in Early Modern Political Thought. Cambridge: Cambridge University Press, 2001. Greenberg, Janelle. “St. Edward’s Ghost: The Cult of St. Edward and His Laws in English History.” In English Law before the Magna Carta: Felix Leibermann and Die Gesetze der Angelsachsen. Eds. Stefan Jurasinski, Lisi Oliver, and Andrew Rabin. London: Brill, 2010, 273–300. Greenblatt, Stephen. Renaissance Self-Fashioning: From More to Shakespeare. Chicago: University of Chicago Press, 1983. Greene, Thomas. The Light in Troy: Imitation and Discovery in Renaissance Poetry. New Haven: Yale University Press, 1982. Greenlaw, Edwin. “Sidney’s Arcadia as an Example of Elizabethan Allegory.” In Essential Articles for the Study of Sir Philip Sidney. Ed. Arthur F. Kinney. Hamden: Archon Books, 1986, 271–85. Guy, John. Thomas More: A Very Brief History. London: Hodder, 2000. Guy, John. “The Henrician Age.” The Varieties of British Political Thought, 1500–1800. Eds. J.G.A.  Pocock, Gordon Schochet, and Lois Schwoerer. Cambridge: Cambridge University Press, 1996, 13–46. Guy, John. “Thomas More and Christopher St. German: The Battle of the Books.” In Reassessing the Henrician Age: Humanism, Politics, and Reform, 1500–1550. Eds. Alistair Fox and John Guy. Oxford: Basil Blackwell, 1986, 95–120. Hadfield, Andrew. Literature, Politics, and National Identity: Reformation to Renaissance. Cambridge: Cambridge University Press, 1994. Hadfield, Andrew. Spenser’s Irish Experience: Wilde Fruit and Savage Soyl. Oxford: Clarendon Press, 1997. Hale, Matthew. The History of Common Law in England. Ed. Charles  M.  Gray. Chicago: University of Chicago Press, 1973. Halpern, Richard. The Poetics of Primitive Accumulation: English Renaissance Culture and the Genealogy of Capital. Ithaca: Cornell University Press, 1991. Hampton, Timothy. Writing from History. Ithaca: Cornell University Press, 1990. Harris, Jonathan Gil. Untimely Matter in the Time of Shakespeare. Philadelphia: University of Pennsylvania Press, 2010. Helgerson, Richard. Forms of Nationhood: The Elizabethan Writing of England. Chicago: University of Chicago Press, 1992. Helmholz, R.H. “Christopher St. German and the Law of Custom.” The University of Chicago Law Review 70.1 (2003), 129–39. Hexter, J.H. “Introduction.” In Utopia. In The Complete Works of St. Thomas More. Vol. 4, eds. E. Surtz and J.H. Hexter. New Haven: Yale University Press, 1965. Hill, Christopher. A Nation of Change and Novelty. New York and London: Routledge, 1990. Hindle, Steve. The State and Social Change in Early Modern England. London: Palgrave, 2000. Hollander, John. Vision and Resonance: Two Senses of Poetic Form. New York: Oxford University Press, 1975. Hutson, Lorna. “Imagining Justice: Kantorowicz and Shakespeare.” Representations 106.1 (Spring 2009), 118–42. Hutson, Lorna. The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama. Oxford: Oxford University Press, 2007. Ibbetson, David. “Custom in Medieval Law.” In The Nature of Customary Law. Eds. Amanda Perreau-Saussine and James Murphy. Cambridge: Cambridge University Press, 2009, 151–75.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography  209 Ibbetson, David. “Ghosts of the Past and the English Common Law.” In History in Court: Historical Expertise and Methods in a Forensic Context. Ed. Alain Wijffels. Leiden: Ius Deco, 2001, 111–32. Ibbetson, David. “Humanism and Law in Elizabethan England: The Annotations of Gabriel Harvey.” In Reassessing Legal Humanism and its Claims: Petere Fontes? Eds. John W. Cairns and Paul J. Du Plessis. Edinburgh: Edinburgh University Press, 2015, 282–95. Ibbetson, David, and Alain Wijffels, “The Techniques of Judicial Records and Law Reports.” In Case Law in the Making: The Techniques and Methods of Judicial Records and Law Reports. Vol. 1. Ed. Alain Wijffels. Berlin: Duncker & Humblot, 1997, 13–38. Ingram, Jill. Idioms of Self Interest: Credit, Identity, and Property in English Renaissance Literature. London: Routledge, 2006. Ives, E.W. The Common Lawyers of Pre-Reformation England: Thomas Kebell: A Case Study Cambridge: Cambridge University Press, 2008. James, Heather. “The First Printed Commonplace Books and the Rise of the Common Reader.” Formal Matters: Reading the Materials of English Renaissance Literature. Eds. Allison Deutermann and András Kiséry. Manchester: Manchester University Press, 2013, 15–32. Jameson, Frederic. A Singular Modernity: Essay on the Ontology of the Present. London and New York: Verso, 2002. Jardine, Lisa. Erasmus, Man of Letters: The Construction of Charisma in Print. Princeton: Princeton University Press, 1993. Jones, R.F. The Triumph of the English Language. Stanford: Stanford University Press, 1974. Kahn, Victoria. The Future of Illusion: Political Theology and Early Modern Texts. Chicago: University of Chicago Press, 2014. Kahn, Victoria. Wayward Contracts: The Crisis of Political Obligation in England, 1640–1674. Princeton: Princeton University Press, 2004. Kalas, Rayna. Frame, Glass, Verse: The Technology of Poetic Invention in the English Renaissance. Ithaca: Cornell University Press, 2007. Kelley, Donald R. Foundations of Modern Historical Scholarship: Language, Law and History in the French Renaissance. New York: Columbia University Press, 1970. Kidd, Colin. British Identities Before Nationalism. Cambridge: Cambridge University Press, 1999. Kinney, Daniel. “Erasmus’ Adagia: Midwife to the Rebirth of Learning.” Journal of Medieval and Renaissance Studies 11.2 (Fall 1981), 169–91. Kinney, Daniel. “More’s Letter to Dorp: Re-Mapping the Trivium.” Renaissance Quarterly 34.2 (Summer 1981), 179–210. Kiséry, András. “ ‘Politicians in Show’: The Circulation of Political Knowledge in Early Seventeenth-Century English Drama.” Ph.D. diss. Columbia University, 2008. Kiséry, András. Hamlet’s Moment: Drama and Political Knowledge in Early Modern England. Oxford: Oxford University Press, 2016. Koselleck, Reinhart. Futures Past: On the Semantics of Historical Time. Trans. Keith Tribe. New York: Columbia University Press, 2004. Kottman, Paul. A Politics of the Scene. Stanford: Stanford University Press, 2007. Kunin, Aaron. “From the Desk of Anne Clifford.” English Literary History 71.3 (Fall, 2004). 587–608. Kuskowski, Ada-Maria. “Inventing Legal Space: From Regional Custom to Common Law in the Coutumiers of Medieval France.” In Space in the Medieval West: Places, Territories, and Imagined Geographies. Eds. Meredith Cohen and Madeline Fanny. London: Routledge, 2014, 133–58.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

210 Bibliography Laroque, François. Shakespeare’s Festive World: Elizabethan Seasonal Entertainment and the Professional Stage. Cambridge: Cambridge University Press, 1991. Lefort, Claude. “The Permanence of the Theologico-Political?” Democracy and Political Theory. Trans. David Macey. Minneapolis: University of Minnesota Press, 1988. Lesser, Zachary, and Peter Stallybrass. “The First Literary Hamlet and the Commonplacing of Professional Plays.” Shakespeare Quarterly 59.4 (Winter 2008), 371–420. Levine, Nina. “Citizens’ Games: Differentiating Collaboration and Sir Thomas More.” Shakespeare Quarterly 58.1 (Spring 2007), 31–64. Lewis, Charlton T., and Charles Short. A Latin Dictionary. Oxford: Clarendon Press, 1879. http://www.perseus.tufts.edu. Lewis, C. S. English Literature in the Sixteenth Century. Oxford: Clarendon Press, 1954. Lockey, Brian. Law and Empire in English Renaissance Literature. Cambridge: Cambridge University Press, 2006. Loewenstein, David. Representing Revolution in Milton and His Contemporaries. Cambridge: Cambridge University Press, 2001. Lupton, Julia. Thinking with Shakespeare: Essays on Politics and Life. Chicago: University of Chicago Press, 2011. McCabe, Richard. Spenser’s Monstrous Regiment: Elizabethan Ireland and the Poetics of Difference. Oxford: Oxford University Press, 2002. McCoy, Richard. Sir Philip Sidney: Rebellion in Arcadia. New Brunswick, NJ: Rutgers University Press, 1979. MacCulloch, Diarmaid. “Kett’s Rebellion in Context.” Past & Present 84 (August 1979), 36–59. McGlynn, Margaret. “Idiosyncratic Books and Common Learning: Readings on Statutes at the Inns of Court.” In The Oxford Handbook of English Law and Literature, 1500–1700. Ed. Lorna Hutson. Oxford: Oxford University Press, 2017, 41–60. McMillin, Scott. The Elizabethan Theatre and the Book of Sir Thomas More. Ithaca: Cornell University Press, 1987. McSweeney, Thomas. “English Judges and Roman Jurists: The Civilian Learning Behind England's First Case Law.” Temple Law Review 84.4 (2012), 827–62. Maitland, Frederic William. “1901 Rede Lectures.” English Law and the Renaissance. Cambridge: Cambridge University Press, 1901, 4–5. Majeske, Andrew J. Equity in English Renaissance Literature: Thomas More and Edmund Spenser. New York and London: Routledge, 2006. Maley, Willy. Salvaging Spenser: Colonialism, Culture, and Identity. New York: St. Martin’s Press, 1997. Manley, Lawrence. Convention, 1500–1750. Cambridge, MA: Harvard University Press, 1980. Mann, Jenny C. Outlaw Rhetoric: Figuring Vernacular Eloquence in Shakespeare’s England. Ithaca: Cornell University Press, 2012. Manning, Roger. Village Revolts: Social Protest and Popular Disturbance in England, 1509–1640. Oxford: Clarendon Press, 1988. Marc’hadour, Germain. “A Name for All Seasons.” In Essential Articles for the Study of Thomas More. Eds. R.S. Sylvester and Germain Marc’Hadour. Hamden: Archon Books, 1977, 539–62. Marfany, Joan-Lluis. “Debate: The Invention of Leisure in Early Modern Europe.” Past & Present 156.1 (August 1997), 174–91. Marius, Richard. “Community, Consent, and Coercion.” In Reformation, Humanism, and ‘Revolution.’ Eds. Gordon Schochet, P.E.  Tatspaugh, and Carol Brobeck. Washington, DC: Folger Institute, Folger Shakespeare Library, 1990, 17–38.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography  211 Marx, Karl. “The Eighteenth Brumaire of Louis Bonaparte.” In The Marx-Engels Reader, 2nd ed. Ed. Robert C. Tucker. New York: W.W. Norton & Co., 1978, 594–617. Monta, Susanna. Martyrdom and Literature in Early Modern England. Cambridge: Cambridge University Press, 2005. Moretti, Franco. “A Huge Eclipse: Tragic Form and the Deconsecration of Sovereignty.” In The Power of Forms in the English Renaissance. Ed. Stephen Greenblatt. Norman OK: Pilgrim Books, 1982, 7–40. Moss, Ann. Printed Commonplace-Books and the Structuring of Renaissance Thought. Oxford: Clarendon Press, 1996. Moyn, Samuel. “Claude Lefort, Political Anthropology and Symbolic Division.” Claude Lefort: Thinker of the Political. Ed. Martin Plot. London: Palgrave, 2013, 51–70. Nauta, Lodi. In Defense of Common Sense: Lorenzo Valla’s Humanist Critique of Scholastic Philosophy. Cambridge, MA: Harvard University Press, 2009. Neale, J.E. Elizabeth I and Her Parliaments, 1559–1581. London: Jonathan Cape, 1953. Neville, Cynthia. “Remembering the Legal Past: Anglo–Scottish Border Law and Practice in the Later Middle Ages.” In Northeast England in the Later Middle Ages. Ed. Christian Liddy and Richard Britnell. Woodbridge: Boydell, 2005, 43–55. Nicholls, K.W. Gaelic and Gaelicized Ireland in the Middle Ages, 2nd ed. Dublin: Lilliput Press, 2003. Nicholson, Catherine. “Pastoral in Exile: Spenser and the Poetics of English Alienation.” Spenser Studies 23 (2008), 41–71. Nicholson, Catherine. Uncommon Tongues: Eloquence and Eccentricity in the English Renaissance. Philadelphia: University of Pennsylvania Press, 2014. Norbrook, David. Poetry and Politics in the English Renaissance. Rev. Ed. Oxford: Oxford University Press, 2002. Olin, John  C. Erasmus, Utopia, and the Jesuits: Essays on the Outreach of Humanism. New York: Fordham University Press, 1994. Ong, W.J. “Commonplace Rhapsody: Ravisius Textor, Zwinger, and Shakespeare.” In Classical Influences on European Culture, A.D. 1500–1700. Ed. R.R. Bolgar. Cambridge: Cambridge University Press, 1976. Osler, Douglas. “Humanist Philology and the Text of Justinian’s Digest.” In Reassessing Legal Humanism and its Claims: Petere Fontes? Eds. John  W.  Cairns and Paul  J.  Du Plessis. Edinburgh: Edinburgh University Press, 2016, 41–56. Otter, Monika. “ ‘New Werke’: St. Erkenwald, St. Alban, and the Medieval Sense of the Past.” Journal of Medieval and Renaissance Studies 24.3 (1994), 387–414. Panofsky, Erwin. Renaissance and Renascences in Western Art. New York: Harper & Row, 1972. Parker, Patricia. Inescapable Romance: Studies in the Poetics of a Mode. Princeton: Princeton University Press, 1979. Parker, Patricia. “Rude Mechanicals.” In Subject and Object in Renaissance Culture. Eds. Margreta de Grazia, Maureen Quilligan, and Peter Stallybrass. Cambridge: Cambridge University Press, 1996, 43–82. Parker, Patricia. Shakespeare on the Margins. Chicago: University of Chicago Press, 1996. Parker, Patricia. “What’s in a Name: And More.” Sederi: Revista de la sociedad Española de Estudios Renacentistas Ingleses 11 (2002), 101–50. Pateman, Carole. The Sexual Contract. Stanford: Stanford University Press, 1988. Patterson, Annabel. Censorship and Interpretation: The Conditions of Writing and Reading in Early Modern England. Madison: University of Wisconsin Press, 1991. Patterson, Annabel. Shakespeare and the Popular Voice. Cambridge, MA: Blackwell, 1990. Phelan, Peggy. Unmarked: The Politics of Performance. New York: Routledge, 1993.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

212 Bibliography Phillips, Margaret Mann. The “Adages” of Erasmus: A Study with Translations. Cambridge: Cambridge University Press, 1964. 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, 1987. Pollard, Tanya. “Greek Playbooks and Dramatic Forms in Early Modern England.” In Formal Matters: Reading the Materials of English Renaissance Literature. Eds. Allison Deutermann and András Kiséry. Manchester: Manchester University Press, 2013, 99–123. Pollard, Tanya. “Romancing the Greeks: Cymbeline’s Genres and Models.” In How to Do Things with Shakespeare. Ed. Laurie Maguire. Oxford: Blackwell, 2007, 34–53. Pollard, Tanya. “What’s Hecuba to Shakespeare?” Renaissance Quarterly 65.4 (Winter 2012), 1060–93. Quint, David. “The Boat of Romance and Renaissance Epic.” Romance: Generic Transformations from Chretien de Troyes to Cervantes. Hanover: University Press of New England, 1985, 178–202. Ramachandran, Ayesha. The Worldmakers: Global Imagining in Early Modern Europe. Chicago: University of Chicago Press, 2015. Randall, Adrian. Before the Luddites: Custom, Community, and Machinery in the English Woollen Industry, 1776–1809. Cambridge: Cambridge University Press, 1991. Richards, Jennifer. Rhetoric and Courtliness in Early Modern Literature. Cambridge: Cambridge University Press, 2003. Rigg, A.G. “Latin Meter.” In Dictionary of the Middle Ages. Vol 7. Ed. Joseph  R.  Strayer. New York: Charles Scribner, 1989. Ringler, William, Jr. “Master Drant's Rules.” Poetry Quarterly 29.1 (1950), 70–4. Ross, Richard. “The Commoning of the Common Law: The Renaissance Debate over Printing English Common Law.” University of Pennsylvania Law Review, 146.2 (January 1998), 323–461. Ross, Richard. “The Memorial Culture of Early Modern English Lawyers: Memory as Keyword, Shelter, and Identity, 1560–1640.” Yale Journal of Law and Humanities 229 (1998), 229–326. Rummel, Erika. “The Reception of Erasmus’s Adages in Sixteenth-Century England.” Renaissance and Reformation 18.2 (1994), 19–30. Russell, Frederic William. Kett’s Rebellion in Norfolk. London: Longman, Brown, Green, Longmans, and Roberts and William Penny, 1859. Sanchez, Melissa. Erotic Subjects: The Sexuality of Politics in Early Modern English Literature. Oxford: Oxford University Press, 2011. Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Trans. George Schwab. Chicago: University of Chicago Press, 2005. Schreyer, Kurt. Shakespeare’s Medieval Craft. Ithaca: Cornell University Press, 2014. Shagan, Ethan. Popular Politics and the English Reformation. Cambridge: Cambridge University Press, 2003. Shannon, Laurie. Sovereign Amity: Figures of Friendship in Shakespearean Contexts. Chicago: University of Chicago Press, 2002. Shrank, Cathy. Writing the Nation in Reformation England, 1530–1580. Oxford: Oxford University Press, 2004. Simpson, A.W.B. A History of Land Law, 2nd ed. Oxford: Clarendon Press, 1986.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography  213 Simpson, James. The Oxford English Literary History: Reform and Cultural Revolution. Vol. II. Oxford: Oxford University Press, 2002. Skinner, Quentin. The Foundations of Modern Political Thought. Cambridge: Cambridge University Press, 1978. Skinner, Quentin. “History and Ideology in the English Revolution.” Historical Journal 8.2 (1965), 151–78. Skura, Meredith Ann. Tudor Autobiography: Listening for Inwardness. Chicago: University of Chicago Press, 2008. Smith, Nigel. Is Milton Better than Shakespeare? Cambridge, MA: Harvard University Press, 2008. Sobecki, Sebastian. Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463–1549. Notre Dame: University of Notre Dame Press, 2015. Sommerville, J.P. Politics and Ideology in England, 1603–1640. London and New York: Longman, 1986. Staley, Lynn. The Island Garden: England’s Language of Nation from Gildas to Marvell. Notre Dame: University of Notre Dame Press, 2012. Stern, Simon. “Margins of Authority: Coke’s Institutes and the Epistemology of the String Cite,” Law and Humanities 11.1 (2017). Summit, Jennifer. “Topography as Historiography: Petrarch, Chaucer, and the Making of Medieval Rome.” Journal of Medieval and Early Modern Studies 30.2 (Spring 2000), 212–46. Talbot, Ernest William. The Problem of Order: Elizabethan Commonplaces and an Example of Shakespeare’s Art. Chapel Hill: The University of North Carolina Press, 1962. Taneyhill, Mary, and Katherine Stearns. “Major Latin Terms in Thomas More's Utopia, CW 4: A Lemmatized Concordance.” Thomas More Studies, 11.1 (Spring 2016). Taylor, Diana. The Archive and the Repertoire: Performing Cultural Memory in the Americas. Durham: Duke University Press, 2003. Thorne, S.E. “English Law and the Renaissance.” Essays in English Legal History. London: Bloomsbury, 1984, 140–1. Tilley, M.P. A Dictionary of the Proverbs in England in the Sixteenth and Seventeenth Centuries. Ann Arbor: University of Michigan Press, 1950. Trettien, Whitney. “Isabella Whitney’s Slips: Textile Labor, Gendered Authorship, and the Early Modern Miscellany.” Journal of Medieval and Early Modern Studies 45.3 (September 2015), 505–21. Trudell, Scott. “The Mediation of Poesie: Ophelia’s Orphic Song.” Shakespeare Quarterly 63.1 (Spring 2012), 46–76. Tucker, Penny. Law Courts and Lawyers in the City of London 1300–1550. Cambridge: Cambridge University Press, 2007. Turner, Henry S. The English Renaissance Stage: Geometry, Poetics, and the Practical Spatial Arts, 1580–1630. Oxford: Oxford University Press, 2007. Underdown, David. A Freeborn People: Politics and the Nation in Seventeenth-Century England. Oxford: Clarendon Press, 1996. Underdown, David. Revel, Riot, and Rebellion: Popular Politics and Culture in England 1603–1660. Oxford: Oxford University Press, 1987. Van Es, Bart. “Historiography and Biography.” In The Oxford History of Classical Reception in English Literature. Vol. 2. Eds. Patrick Cheney and Philip Hardie. Oxford: Oxford University Press, 2015, 433–59.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

214 Bibliography Van Es, Bart. Spenser’s Forms of History: Elizabethan Poetry and the ‘State of the Present Time.’ Oxford: Oxford University Press, 2002. Vanhoutte, Jacqueline. “Queen and Country? Female Monarchs and Feminized Nations in Elizabethan Political Pamphlets.” In Elizabeth I: Always Her Own Free Woman. Eds. Carol Levin, Jo Eldridge Carney, and Debra Barrett Graves. Aldershot: Ashgate, 2003, 7–19. Verstegan, Richard. A Restitution of Decayed Intelligence. Yorkshire: Scolar Press, 1976. Wall, Wendy. The Imprint of Gender: Authorship and Publication in the English Renaissance. Ithaca: Cornell University Press, 1993. Wallace, David. “Mary Ward and the Premodern Canon.” Journal of Medieval and Early Modern Studies 36.2 (2006), 397–453. Warren, Christopher. Literature and the Law of Nations, 1580–1680. Oxford: Oxford University Press, 2015. Waswo, Richard. Language and Meaning in the Renaissance. Princeton: Princeton University Press, 1987. Weimann, Robert. Shakespeare and the Popular Tradition in Theater: Studies in the Social Dimension of Dramatic Form and Function. Baltimore: The Johns Hopkins University Press, 1978. Wesseling, Ari. “Dutch Proverbs and Expressions in Erasmus’s Adages, Colloquies, and Letters.” Renaissance Quarterly 55.1 (Spring 2002), 81–147. West, William. “Replaying Early Modern Drama.” In New Directions in Renaissance Drama and Performance Studies. Ed. S. Werner. New York: Palgrave Macmillan, 2010, 30–50. Wijffels, Alain. “Antiqui et Recentiores: Alberico Gentili – Beyond Mos Italicus and Legal Humanism." In Reassessing Legal Humanism and its Claims: Petere Fontes? Eds. John  W.  Cairns and Paul  J.  Du Plessis. Edinburgh: Edinburgh University Press, 2016, 11–40. Williams, Ian. “Christopher St. German: Religion, Conscience, and Law in Reformation England.” In Great Christian Jurists in English History. Eds. Mark Hill and R.H. Helmholz. Cambridge: Cambridge University Press, 2017, 103–23. Williams, Ian. “Common Law Scholarship and the Written Word.” In The Oxford Handbook of Law and Literature. Ed. Lorna Hutson. Oxford: Oxford University Press, 2017, 61–79. Williams, Ian. “Early-modern Judges and the Practice of Precedent.” In Judges and Judging in the History of Common Law and Civil Law. Eds. Paul Brand and Joshua Getzler, Cambridge: Cambridge University Press, 2012, 51-66. Williams, Ian. “ ‘He Creditted More the Printed Booke:’ Common Lawyers' Receptivity to Print, c. 1550–1640.” Law and History Review 28.1 (2010), 39-70. Williams, Ian. “The Tudor Genesis of Edward Coke’s Immemorial Common Law.” Sixteenth Century Journal 43.1 (2012), 103-123. Williams, Raymond. A Vocabulary of Culture and Society. Keywords. New York: Oxford University Press, 1976. Williams, Raymond. Keywords: A Vocabulary of Culture and Society. Rev. ed. Oxford: Oxford University Press, 1983. Wilson, Luke. Theaters of Intention: Drama and the Law in Early Modern England. Stanford: Stanford University Press, 2000. Womack, Peter. “Off-Stage.” In Early Modern Theatricality. Ed. Henry S. Turner. Oxford: Oxford University Press, 2013, 71–92. Wood, Andy. “Custom and the Social Organization of Writing in Early Modern England.” Transactions of the Royal Historical Society, 6th series. Vol. 9 (1999). Wood, Andy. The Memory of the People: Custom and Popular Senses of the Past in Early Modern England. Cambridge: Cambridge University Press, 2013.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

Bibliography  215 Wood, Andy. The Politics of Social Conflict: the Peak Country, 1520–1770. Cambridge and New York: Cambridge University Press, 1999. Wood, Andy. Riot, Rebellion, and Popular Politics in Early Modern England. New York: Palgrave, 2002. Woodbine, G.E., ed., Samuel Thorne, trans. Bracton on the Laws and Customs of England, Vol. II. Cambridge, MA: The Belknap Press, 1968. Woods, Gillian. “ ‘Strange Discourse’: The Controversial Subject of Sir Thomas More.” Renaissance Drama 39.1 (2011), 3–35. Woods, Susan. “Freedom and Tyranny in the Arcadia.” In Sir Philip Sidney’s Achievements. Eds. M.J.B Allen, Dominic Baker-Smith, and Arthur Kinney. New York: AMS Press, 1990. Wootton, David. “Friendship Portrayed: A New Account of Utopia.” History Workshop Journal 45.1(1998), 28–47. Worden, Blair. The Sound of Virtue: Philip Sidney’s Arcadia and Elizabethan Politics. New Haven: Yale University Press, 1996. Woudhuysen, H.R. Sir Philip Sidney and the Circulation of Manuscripts, 1558–1640. Oxford: Oxford University Press, 1996. Zilko, Matthew. “The Influence of Sir Thomas More’s Career as a Lawyer and Judge on the Writing of Utopia.” Parergon 17.1 (1999), 45–62. Zurcher, Andrew. Spenser’s Legal Language: Law and Literature in Early Modern England. Cambridge: D.S. Brewer, 2007.

OUP CORRECTED AUTOPAGE PROOFS – FINAL, 04/08/20, SPi

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

Index Note: Figures are indicated by an italic “f ”, following the page number. For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on occasion, appear on only one of those pages adages, see commonplace Adams, Robert  65–6, 68–9 Alciato, Andrea  48–9 Alexander, Gavin  119–20 Alexander the Great  149n.64 Altman, Joel  122–3 Alured  99, 151 ancient constitution  8, 15, 16n.58, 23–4, 38–40, 42, 83, 83n.25, 105, 110, 123, 196–7 defined 7–8 and time immemorial  16–17, 20, 41–2, and Whitney’s A Sweet Nosgay 133–5 see also constitutionalism; monarchy, and extent of power; parliament, and relationship with monarch Apology of 1604  40–1, 90n.56 aporia  10–11, 18, 105, 119–20, 122–4 Arendt, Hannah  180, 190–1 Aristotle  46–7, 75 Politics 75n.111 Ascham, Roger  84n.27 The Scholemaster  85–6, 89, 89n.49 Attridge, Derek  80, 80n.10 Aylmer, John An Harborowe for Faithfull and Trewe Subjects 111–12 Baker, John H.  3–4, 27–8, 31–2, 49n.29, 50–1 Ball, John  181 Banks, Sir John  196–7 Baptiste, Victor  66n.92 Barret, J.K.  14n.49, 158, 195 Bartolovich, Crystal  135, 138, 144n.45, 156, 158 Bede  90n.55, 151 Blackstone, William  55n.52 Blank, Paula  86 Bloch, Howard  90 Boccaccio, Giovanni  47–8 Bodenham, John Bel-vedere  141–2, 183 Bodin, Jean  149n.64 Bolingbroke, Henry  166

The Book of Sir Thomas More  19, 42, 159–66, 159nn.5,7–8, 160n.10, 169–75, 170n.42, 171nn.46,49, 172n.51, 173n.52, 176n.61, 177, 181, 184–5 and censorship  19, 159–62, 160nn.8,10, 171, 184–5 and commonplaces  172–4, 172n.51, 181 and humanism  172–3 and monarchy  19, 160–4, 171–2, 174 and novelty  160–1, 163–6, 169–72, 170n.42, 174–5 and rebellion  159–65, 159n.7, 169–72, 174–5, 176n.61, 177, 181, 184–5 Bracton  22–3, 23nn.20,22, 27n.43, 29n.59, 30n.65, 40nn.115,117, 51–3, 64–5 Brady, Ciáran  93–4, 96–7, 100n.83 Brand, Paul  20–1, 29n.59, 40n.117 Breckman, Warren  186n.110 Brehon law see Ireland, Brehon law Briggs, W.D.  114n.38 Brooke, Robert La Graunde Abridgement 39–40 Brooks, Christopher  15 Buchanan, George  108, 110–11 De Jure Regni 107–8 Budé, Guillaume  50–1 Burgess, Glenn  7–8, 37, 87–8, 132 Burghley, Lord  112n.31 Bynneman, Henry  76–7 Camden, William  88–90, 99n.80 case law  27–34, 33n.80 Catiline’s Conspiracies 159 censorship 19 and The Book of Sir Thomas More  19, 159–62, 160nn.8,10, 171, 184–5 and rebellion  19, 159–62 Chaloner, Thomas  56–7 Charles I  30, 196–7 Charter of Liberties  36 Chaucer  82, 82n.21 Chettle, Henry  159–60, 159n.5, 160n.8 see also The Book of Sir Thomas More

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

218 Index Cheyette, Frederic  21n.8, 27n.43, 29n.59, 30n.65 Church, J.  70n.101 Cicero  10–11, 64, 75, 75n.111, 122–3, 185, 190 Book of Duties 139–40 De Amicitia 139–40 Civil War, English see Revolution, English Clarke, Danielle  153 Clifford, Lady Anne  148 Diaries 134n.7 coigny and livery  100–1, 100nn.82–83 Coke, Sir Edward  15, 23n.22, 31–2, 31n.68, 39, 177 Calvin’s Case 37 Reports  22–3, 31, 34–7, 34n.85, 85n.29 Colet, John  47, 51 colonialism and colonization  7–9, 79, 87, 91–4 in More’s Utopia 67–70 and Spenser  8, 17–18, 76–7, 79, 84, 87, 91–2, 94–5, 97–8, 99n.81, 100–2 see also Ireland, relationship with England Colonna, Giovanni  14n.51 common erudition, see common learning common learning  3–4, 16–17, 20, 28–34, 33n.80, 37, 52–3 commonplace  18–19, 57n.63, 60, 133–4, 169–70, 181–2, 181n.82 in The Book of Sir Thomas More 172–4, 172n.51, 181 classical  18–19, 46–7, 53–4, 56–7, 70–3, 133–7, 153, 172–3, 183–4 in Erasmus’s Adages  44–8, 45n.9, 53–60, 54n.51, 56n.57, 58n.66, 69n.100, 73–4, 73n.105, 136–7, 149–50, 150n.66, 154–5, 183–4 and humanism  46–9, 135 in More’s “Letter to Dorp”  62–3 in More’s Utopia  17–19, 44–7, 45n.9, 51–2, 56n.57, 57–60, 59n.67, 65, 70–6, 72f, 121, 136–7, 141–2, 146, 155, 172–4, 184, 194–5 in Plat’s The Floures of Philosophie 18–19, 133–4, 136–8, 141–2, 149–51, 150n.66, 153–6 and Puttenham  56n.57 in Shakespeare  19, 181–5, 183n.93 in Whitney’s A Sweet Nosgay  18–19, 133–8, 141–2, 145–56, 150n.66, 159–60, 194–5 constitutionalism  8–9, 20, 110, 113, 114n.38, 116–17, 195–6 in More’s Utopia 17 in Sidney’s Old Arcadia  105, 119–20 see also ancient constitution consuetudo  21–3, 43–4, 51–2, 63–4, 63n.77

Cooper, Thomas An Epitome of Chronicles 36 copia  46–8, 120–2, 123n.67 see also Erasmus, De Copia Cormack, Bradin  2–3, 10–11, 55, 92–4, 97 Corpus Iuris Canonici 33n.77 Coutume de Paris 33n.77 Cowell, John The Interpreter 25–6 Crane, Mary Thomas  47–8, 70–3, 154–5 Cranmer, Thomas “Collecteana satis Copiosa”  38–9 Crawforth, Hannah  79, 98n.78 Cromartie, Alan  8, 34–5, 38–40, 40n.115, 84n.26, 197 Crowley, Robert  36 Cunningham, Karen  50–1 customary law  6–7, 9–10, 17–18, 20–7, 21n.4, 34–5, 92, 108 see also Ireland, Brehon law custumals  20–1, 23n.21, 33n.77 Danzig, Richard  33n.79 Das, Nandini  127n.75 Davies, Sir John  3–4, 128–9 A Discouerie of the True Causes why Ireland was Neuer Entirely Subdued 92 Davis, Alex  105n.4 Davis, Kathleen  15, 15n.57 de Busleyden, Jerome  51 de Gourmont, Gilles  51 de Grazia, Margreta  13–14, 126–7, 189 Dekker, Thomas  159–60, 160n.8 see also The Book of Sir Thomas More de las Casas, Bartolomé  66n.92 A Brief Account of the Destruction of the Indies 66n.92 De legibus et consuetudinibus Angliae see Bracton Demarais, John  51 de’ Medici, Catherine  107 Denny, Edward  109 Diogenes 150n.66 Dipple, Elizabeth  116n.48 discursive commons  9–10, 17, 19, 45, 60–3, 75–6, 173–4, 194–5 Dolven, Jeff  122 Donnell, J.  70n.101 Dudley, Lady Anne  137, 150 Duncan-Jones, Katherine  126 Duke of Anjou  104–5, 105n.3, 112–13, 115–17 du Plessis-Mornay, Philippe  110–12 De La Verite de la Religion Chretienne 108 Vindiciae Contra Tyrannos 107–8

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

Index  219 duration  3–4, 16–17, 20, 24, 26–9, 32 see also “time immemorial” Duxbury, Neil  26, 33n.80

Friedman, Albert  181n.82 Froben, Johann  51 Fuller, Thomas  169

eclogue  12, 18, 86, 103, 105, 124–32, 129n.82, 194–5 Eden, Kathy  45, 57, 57n.63, 59n.69, 60 Edward III  36–7, 109 Eleutherius, Pope  38–9 Elizabeth I  40–1, 79n.8, 111–12, 113n.36, 114n.39, 165–6, 177–8 and Duke of Anjou  104–5, 112–13, 115–16, 118–19 Ellinghausen, Laurie  144n.45 Elyot, Thomas  64 Erasmus  51–2, 59n.69, 70, 75, 140n.29 Adages (Adagiorum Chiliades)  44–8, 53–61, 54n.51, 55n.56, 58n.65, 73–4, 139–40, 150, 150n.66, 183–4 Apophthegmata  137, 150n.66 Collecteana Adagorium 55n.56 and commonplaces  44–8, 45n.9, 53–60, 54n.51, 56n.57, 58n.66, 69n.100, 73–4, 73n.105, 136–7, 149–50, 150n.66, 154–5, 183–4 De Copia  47–8, 69n.100, 120, 122, 149–50, 154–5 and humanism  46–7, 51, 63, 70–3 The Praise of Folly (Moriae Encomium) 44, 56–7, 61 etymology  41–2, 90 and A View of the Present State of Ireland 98–102 and Spenser/Harvey correspondence  17–18, 79, 88–91, 98–102, 98n.78, 99nn.80,81, 101n.86 Euripides 182–3

Gascoigne, George A Hundreth Sundry Flowers­ 133–4 Posies 144 gavelkind  24–5, 92–3 Geoffrey of Monmouth  68–9, 151 Geraldine Rebellion  101n.85 Giles, Peter  45n.9, 51, 58–9 Glanvill treatise  23nn.20,23, 39–40, 40n.117 Glendower, Owen  166–9, 166n.28 Gosson, Stephen The School of Abuse 159 Gouws, John  115–16 Grafton, Anthony  148n.56, 149, 149n.62 Grafton, John Chronicle at Large 36 Grafton, Richard An Abridgement of the Chronicles of England  140–1, 141n.34, 151–2 Greenberg, Janelle  15, 38, 110–11, 197 Greenblatt, Stephen  65–6 Greene, Robert  192, 192n.137 Greene, Thomas  13–15 Greenlaw, Edwin  105n.3 Greg, W.W.  160n.8 Greville, Fulke  117 A Dedication to Sir Philip Sidney 115–16 Grey de Wilton, Arthur Lord  77, 93–4 Grocyn, John  51

Fabyan, Robert Chronicles of England and France  36, 151 facilitator  148, 148n.56, 149n.64 Fitzherbert, Anthony La Graunde Abridgement  30, 39–40 Flynn, Bernard  187 Fogarty, Anne  98–9 Fortescue, John  23n.22, 36–7, 39–40, 52–3, 69, 110, 112 De Laudibus Legum Angliae  22–3, 35, 52, 52n.44, 57–8, 68–9, 84, 152 Fox, Alistair  171–2 Foxe, John  40–1, 177–8 Actes and Monuments  4–5, 110–12 The Gospel of the Fowr Evangelistes 4–5 Fraunce, Abraham  120, 129–32

Hadfield, Andrew  79n.8, 95–6, 99n.81, 101, 101n.86 Halpern, Richard  73n.104, 154–5 Hampden, John  196–7 Hampton, Timothy  149, 149n.64 Harding, Thomas  147 Hare, Robert  70n.101 Harold II  97 Harrington, Sir John  126 Harris, J.G.  14n.49 Harrison, William The Description of England 36 Harvey, Gabriel  42, 49, 90n.55, 103, 148n.56, 156, 194–5, 83nn.25–27 and humanism  49, 78 Three Proper, and Wittie, Familiar Letters 12, 17–18, 42, 76–92, 84n.27, 95–8, 98n.78, 100–3, 126 Hayward, John  4–5 The Second Part of the Life and Raigne of Henry IIII  163–4, 166–7, 166n.28

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

220 Index Hedley, Thomas  37 Helgerson, Richard  11–12, 79, 83–4, 83n.22, 84n.27 Heliodorus Aethiopica 103 Henry I  25n.34, 36, 152 Henry II  25n.34, 95 Henry III  151 Henry IV  166–7 Henry VI  39 Henry VII  55, 93–4, 165–6 Henry VIII  38–9, 46, 49–51, 52n.42, 55, 65–6, 95, 171–2 Hexter, J.H.  43–4, 65–6 Heywood, Thomas  159–60, 160n.8, 164–5 see also The Book of Sir Thomas More Hill, Christopher  189n.127 Hindle, Steve  168n.35 historical consciousness  13–15, 14n.51, 126–8, 189 Hoddesdon, John Thomas Mori Vita & Exitus 43 Holinshed, Raphael Chronicles of England, Scotland, and Ireland  35–6, 84–5, 87, 108–10, 109n.15, 147, 162, 177, 181 Holland, Philemon  147 Hooker, Richard  39–40 Horace 6 Ars Poetica 184–5 Hoskyns, John Direction for Speech and Stile 120 humanism  6, 35, 76, 86–7, 86n.33, 122–3, 135, 135n.10, 140, 140n.29, 149, 149n.64, 194 and The Book of Sir Thomas More 172–3 and commonplaces  46–9, 135 and Edmund Spenser  78, 141–2 and Erasmus  46–7, 51, 63, 70–3 and Gabriel Harvey  49, 78 and Isabella Whitney  12, 135, 135n.10, 141–2, 148–50, 149n.64 legal  48–50, 49n.29, 139–40 and Petrarch  14n.51 and Philip Sidney  122–3, 141–2 and Thomas More  12, 17, 45, 50–1, 58–60, 62–3, 76, 78, 162, 171, 176–7 Hutson, Lorna  2–3, 10–11, 11n.39, 16n.58, 119–20, 122–3, 185–6 Ibbetson, David  21, 27–8, 29n.59, 42, 49, 49n.29 Ill May Day (1517)  19, 159–60, 159n.7, 162, 164–5, 171–2, 175–6, 184–5 Ingram, Jill  144n.45

inheritance  3–4, 7–8, 20–1, 23–5, 28–9, 74, 92–4, 146n.49, 179–80 see also primogeniture innovation see novelty institutum 64–7 Ireland  42, 69 Brehon law  17–18, 77, 79, 92–6, 98, 100 relationship with England  7–9, 17–18, 40–1, 76–9, 87, 91–103, 93n.62 and Spenser  76–8, 77n.2, 91–102, 93n.68, 195–6 see also colonialism and colonization Ives, E.W.  28–9 James, Heather  141–2 James I  30, 40–1, 90n.56, 115–16, 175–6 Jameson, Fredric  13–14, 189 Jardine, Lisa  54n.51, 148n.56 John, King  151 Jonson, Ben  10 Jowett, John  159n.5, 160n.10 Justinian  33–4, 49–50 Code  24, 27n.43 Digest  24, 40n.115, 48–9, 108 Institutes  27n.43, 140, 143 Juvenal 62 Jyl of Braintford  144 Kahn, Victoria  10–11, 118–19, 188 Kantorowicz, Ernst  186, 188 Kebell, Thomas  28–9 Kendall Thomas The Flowers of Epigrammes 133–4 Kent  25–6, 92–3, 108–9, 152 Kidd, Colin  83n.22 “kincogish”  99–101, 101n.84 Kinney, Daniel  47–8, 62 Knollys, Sir Francis  112n.31 Knox, John The First Blast of the Trumpet against the Monstrous Regiment of Women 111–12 Koselleck, Reinhart  13, 180, 191 Kuskowski, Ada-Maria  23n.21 Lacan, Jacques  186n.110 Lambarde, William  36–7 Perambulation of Kent  108–9, 177 land and property rights  3–4, 7–10, 20–6, 22n.15, 23n.22, 25n.34, 38, 92–4, 97, 134, 138, 143 and inheritance  3–4, 23–5, 92–4, 145n.47, 146n.49

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

Index  221 and monarchy  25–7, 66–7, 93–4 in More’s Utopia  17, 60–2, 66–7 see also Ireland, Brehon law Languet, Hubert  108, 110–12 Vindiciae Contra Tyrannos 107–8 Lanquet, Thomas An Epitome of Chronicles 36 Laroque, François  2–3 Lefort, Claude  186–8, 186nn.110,112,113, 187n.122 Leonello d’ Este  149 Lesser, Zachary  182–3 Levine, Nina  171–2, 174 Lewis, C.S.  65–6 The Life and Death of Jack Straw 181 Linacre, Thomas  51 Littleton, Thomas de Tenures  24n.26, 27–8 local custom see customary law Lockey, Brian  106n.5, 113n.36 Lockwood, Shelley  57–8 Logan, George  65–6, 68–9 London  24–5, 46, 51, 159–61, 169–70 and Edmund Spenser  77, 94–5 and More’s Utopia 64–5 in Whitney’s A Sweet Nosgay  18–19, 42, 135–6, 138n.22, 143–5, 145n.47, 150, 156–8 Lucius, King  38–9, 147 Lupton, Julia  161–2, 178–80 Luther, Martin  110n.17, 147 McCabe, Richard  101n.84 MacCulloch, Diarmaid  165–6 McGlynn, Margaet  31–2 Machiavelli, Niccolò  190 McMillin, Scott  159nn.7–8 McSweeney, Thomas  29n.59, 30n.65 Magna Carta  165–6 Mainwaring, George  150n.66, 153 Maitland, Frederic William  50n.33 Malmatius 151 manicules  69n.99, 70–3, 70n.101, 71f Mann, Jenny  10–12, 105n.4 Manners, Sir Thomas  43 Marfany, Joan-Luis  147n.51 Marius, Richard  64n.85 Martens, Dirk  51 Marx, Karl “Eighteenth Brumaire of Louis Bonaparte”  180, 189–90 Mary Queen of Scots  107, 110–11, 114n.40, 165–7

Mary Tudor  111–12 May Day  92–3 see also Ill May Day (1517) Meres, Francis  82n.21 Palladis Tamia 141–2 meter  8–9, 79–80, 81n.15, 82n.21, 194–5 as debated by Spenser and Harvey  12, 17–18, 42, 76–92, 80n.10,13, 101–3, 126 as discussed by Puttenham  5–6 and Shakespeare  191–2 and Sidney’s Old Arcadia  103, 127, 129–32 and Whitney’s A Sweet Nosgay 153 see also quantitative verse Mildmay, Walter  112n.31 Milton, John  1–2, 178, 197–8 The Doctrine and Discipline of Divorce  1–2, 19 Paradise Lost 1 mock testaments  133–5, 143–6, 145n.47, 146n.49, 153, 156–8 monarchy  2, 21n.8, 52–3 and The Book of Sir Thomas More  19, 160–4, 171–2, 174 and extent of power  7–9, 38–42, 52–3, 55, 55n.52, 57–8, 68–9, 96–7, 104–5, 107–19, 114n.39, 128–9, 171–2, 174, 178–80 and property rights  25–7, 66–7, 93–4 and rebellion  19, 107, 110–11, 160–7, 171–2, 175–9, 188 and relationship to subjects  7–10, 39–40, 55, 55n.54, 57–8, 68–9, 79n.8, 83–4, 107–19, 172, 177–8, 180 in Sidney’s Old Arcadia  18, 104–9, 112n.31, 113–19, 113n.36, 132, 114nn.39–40 in the works of Shakespeare  6–7, 17, 19, 161, 175–6, 178–80 Monta, Susanna  171n.46 More, John  51 More, Thomas  2, 8–9, 8n.27, 58n.65, 66n.92, 139–40, 140n.29, 159–60, 162, 171, 194–5 The Apologye of Sir Thomas More 139n.28 and colonialism  67–70 and commonplaces  17–19, 44–7, 45n.9, 51–2, 56n.57, 57–60, 59n.67, 62–3, 65, 72f, 76, 121, 136–7, 141–2, 146, 155, 172–4, 184, 194–5 The Confutation of Tyndale’s Answer 139n.28 on constitutionalism  17 The Debalacion of Salem and Bizance 139n.28 and humanism  12, 17, 45, 50–1, 58–60, 62–3, 76, 78, 162, 171, 176–7 “Letter to Dorp”  61–3, 176–7 life of  50–1 and mores  63–4, 66–7

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

222 Index More, Thomas (cont.) and puns on surname  43–4, 63 The Second Part of the Confutation 139n.28 Utopia  12, 17–19, 42–7, 45n.9, 50–1, 52n.42, 56n.57, 57–75, 59n.67, 61n.71, 64n.85, 69nn.100–101, 71f, 72f, 73nn.104–105, 103, 113–14, 141–2, 145–6, 155, 163, 172, 195–6 see also The Book of Sir Thomas More Moretti, Franco  178–80 Morison, Richard  50n.33 A Discourse Touching the Reformation of the Laws of England 49–50 mos gallicus  48–9, 48n.26 mos italicus  48–50, 48n.26 Mousehold Heath  165–6, 168–9 Moyn, Samuel  186n.110 Mulcaster, Robert  152 Munday, Anthony  159–62, 159n.5, 160n.8, 171, 173, 173n.52 see also The Book of Sir Thomas Moore narratio 122–3 in the works of Shakespeare  12, 19, 161–2, 174–5, 184–6, 188, 192 Nashe, Thomas  87–8 Nicholson, Catherine  11–12, 56–7, 86 Norbrook, David  117 Norman Conquest  110 and cultural identity  84–5, 88–91, 97–8, and perceptions of legal continuity  7–8, 26, 35–7, 84–5, 89–91, 96–7, 108–9, 109n.15, 151–2, 176n.60, 177 see also William the Conqueror Northern Rebellion (1569)  165–6 Norton, Sir Thomas  165–7 novelty  2–6, 13–16, 164, 177–8, 189, 194, 197–8 and The Book of Sir Thomas More 160–1, 163–6, 169–72, 170n.42, 174–5 and rebellion  160–1, 163–6, 169–70, 175–81, 190–1 and Sidney’s Old Arcadia  126–8, 132n.85 suspicion of  12–13, 127–8, 169–70, 170n.42, 174–7 Olin, John C.  73n.105 Ong, Walter  54 Otter, Monika  14–15, 14n.50 Panofsky, Erwin  13–14 parliament  1, 19, 37, 39–41, 83–4, 90–1, 93n.68, 95, 111–12, 167, 196–7 and relationship with monarch  7–8, 38, 90n.56, 96–7, 110–12, 115–16, 177–8

Pateman, Carole  67–8 Patterson, Annabel  181–2, 183n.93 Peacham, Henry The Garden of Eloquence  10–11, 122 Peele, George  181n.82 Petrarch  13, 14n.51 Phaer, Thomas  139–40 A New Boke of Presidentes 139 Phillip II  112 Phillips, Margaret Mann  44–5, 58 Pilgrimage of Grace  110n.17, 146n.49, 165–6 Plat, Hugh  135 and commonplaces  18–19, 133–4, 136–8, 141–2, 149–51, 150n.66, 153–6 Floures of Philosophie  133–4, 136–8, 141–3, 147–51, 153–6 Plato  69n.100, 70–5, 137 Plowden, Edmund  39–40 Commentaries and Reports 30 Plucknett, T.F.T.  30n.65 Plutarch Apophthegmata 58n.66 Pocock, J.G.A  8n.26, 15, 22–3, 34–5, 34n.85, 37, 40–1, 168n.35 Polybius 179n.75 praemunire  55, 55n.52 Praemunires (1353)  55 prescription  25–6, 25n.34 primogeniture  3–4, 23–4, 27, 66–7, 93–4, 133 see also inheritance property rights, see land and property rights Protestantism  2–3, 40–1, 110–13, 110n.17, 162 and issues of monarchy  104–5, 107, 110–13, 115, 160–1, 177–8 Reformation  4–5, 24, 110, 177–8 proverb see commonplace Prynne, William  196–7 Ptolemy 159 Puttenham, George  41n.123 The Arte of English Poesie  5–6, 11, 41–2, 56n.57, 80–1, 81n.15, 85–6, 88–9, 122, 192 and commonplaces  56n.57 quantitative verse  82n.21, 194–5 and correspondence between Harvey and Spenser  35, 76–89, 91–2, 94–5, 102 and Shakespeare  191–2 and Sidney’s Old Arcadia  103, 127, 129–32 see also meter Quintilian  10–11, 60, 62–3, 86–7, 86n.33, 89n.49, 176–7 Institutio Oratoria­  54, 63n.77

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

Index  223 Rastell, John  135, 139–40, 140n.29 A Breviat Chronycle 36 Chronycles of England 36 The Exposicions of the Termes of the Lawes of England  139–40, 139n.26 Liber Assissarum 52n.44 The Statutes 140n.31 Rastell, William  135, 139–40, 139n.28 rebellion  84–5, 101n.85, 104, 107, 109n.15, 110–11, 165–9, 176n.60, 188, 194 and censorship  19, 159–62 as treated in drama  19, 159–66, 169–86, 176n.61, 188–96 Reception  48–50, 48n.25 revolution see rebellion Revolution, English  38, 90n.56, 189, 196–7 Revolution, French  186n.112, 189–90 rhetoric  10–12, 70–3, 86–7, 86n.33 figures and formal aspects of  5, 10–11, 46–7, 54–8, 105, 105n.4, 119–21, 154–5, 160–1 forensic  2–3, 10–11, 122–3 in Sidney’s Old Arcadia  105, 105n.4, 122–3 see also aporia; commonplace; copia; narratio Rhetorica Ad Herennium  86–7, 86n.33 Richard I  25–6, 25n.34 Richard II  166n.28, 167 Richards, Jennifer  84n.27, 87–8 Ringler, William  132n.85 Robertson, Jean  129–32, 132n.85 Robynson, Raphe  70–3, 71f, 72f, 139–40 Roper, William  46 Ross, Richard  30, 135, 139–40, 145 Sachsenspiegel 33n.77 St. Bartholomew’s Day Massacre  107 St. Edward  110–11, 140–1, 151–2 St. German, Christopher  22–3, 22n.15, 23n.22, 26–7, 52–3, 52nn.42,44, 110n.17, 139 Doctor and Student  28–9, 28n.50, 39–40, 51–2 St. Leger, Anthony  93–5, 93n.65, 97 Sanchez, Melissa  79n.8 Schmitt, Carl  178 Second Desmond Rebellion  93–4 Selden, John “Notes on Fortescue”  37 Seneca  18–19, 133–4, 136–7, 153, 172–3, 182–3, 192 Shakespeare, William  2–3, 8, 10, 16, 19, 122–3, 194–6 and commonplaces  19, 181–5, 183n.93 Cymbeline 6–7

1 Henry IV 163–4 Hamlet  8–9, 19, 159–62, 174–86, 182n.89, 183n.93,97, 188, 190–3, 192n.137 narratio in the works of  12, 19, 161–2, 174–5, 184–6, 188, 192 revision of The Book of Sir Thomas More 19, 159–60, 160n.8, 162–5, 169–70, 174–5 Richard II 166 2 Henry VI 166 Sonnet 59  164, 181 see also The Book of Sir Thomas More Shannon, Laurie  75, 75n.112 Sharpe, Kevin  15 Sherry, Richard A Treatise of Schemes and Tropes  10–11, 122 Sidney, Philip  2, 8–10, 18, 41n.123, 90, 110n.17, 112–13, 114n.39, 115–16, 129–32, 184–5, 194–6 and aporia  18, 105, 119–20, 122–4 Astrophil and Stella 146 The Defence of English Poesie  41–2, 42n.124, 80–1, 108, 184n.99 and humanism  122–3, 141–2 and literary authority  103, 105, 119–20, 122–4, 126–7, 129–32 The New Arcadia  119–20, 123n.67, 129n.82, 132n.85 The Old Arcadia  4–5, 8–9, 12, 18, 42, 103–9, 105n.3, 106n.5, 113–32, 113n.36, 114nn.38–40, 116n.48, 120n.55, 123n.68, 127n.75, 132n.85, 176–7 Simpson, James  65–6, 69 Skinner, Quentin  15 Skretkowicz, Victor  132n.85 Skura, Meredith  150 Smith, Nigel  1–2 Smith, Thomas  83n.25, 89–90 De Republica Anglorum  110, 110n.18, 177–8 Sobecki, Sebastian  140n.29 Socrates  54, 73, 137 Solon  68–9, 96 Sophocles 182–3 Spelman, Henry  15 Spenser, Edmund  8–9, 42, 79n.8, 84n.26, 90n.56, 103, 194–5 and colonialism  8, 17–18, 76–7, 79, 84, 87, 91–2, 94–5, 97–8, 99n.81, 100–2 The Faerie Queen  2, 76–7, 79n.8 and humanism  78, 141–2 and Ireland  76–8, 77n.2, 91–102, 93n.68, 195–6 The Shepheardes Calender  76–7, 86, 98n.78, 126

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

224 Index Spenser, Edmund (cont.) Three Proper, and Wittie, Familiar Letters 12, 17–18, 42, 76–92, 95–8, 98n.78, 100–3, 191 A View of the Present State of Ireland 8–9, 17–18, 77–9, 77n.2, 91–2, 93n.68, 94–102, 99nn.80–81, 101n.86 Stallybrass, Peter  182–3 Stanyhurst, Richard  89 Starkey, Thomas  50n.33 The Dialogue between Reginald Pole and Thomas Lupset  29n.53, 49–50 Statute of Uses (1536)  146n.49 Statute of Wills (1540)  146n.49 Statutes of Provisors (1306)  55 Stern, Simon  31n.68 Stow, John  140–1 The Annales of England 36 The Chronicles of England 36 A Summarie of English Chronicles  140–1, 152 Stubbes, John The Discoverie of a Gaping Gulf 112n.31 Suda 57 Summa de legibus Normanniae 33n.77 Summit, Jennifer  14–15, 14n.51 Swanscombe Down  152 Talbot, Ernest William  110n.17 tanistry  92–4, 99, 99n.80, 101–2 Taverner, Richard  47, 139–40, 145, 149–50 The Garden of Wisdom  133–4, 150n.66 Institutions or Principal Grounds of the Laws and Statutes of England  139–40, 139n.25, 142–3, 156–7 Terence 54 1306 Statutes of Kilkenny  92 1381 Peasants’ Revolt  170, 181 Thorne, S.E.  50n.33 Tilney, Edmund  159–62, 160nn.8,10, 171, 174–5, 184–5 “time immemorial”  3–5, 8–9, 14–16, 20, 36–7, 39–42, 83–4, 89–92, 90n.56, 194–5 and legal traditions  3–4, 6–8, 16–17, 20, 22–9, 32, 34–5, 38, 40–2, 52–3, 96–8, 128, 196–7 see also duration “time out of mind” see “time immemorial” Tottel, Richard  135, 139–40, 152, 139nn.25–26 Songes and Sonnetts (Tottel’s Miscellany) 133–4, 139–40, 144, 183n.93 Tunstall, Cuthbert  58–9 Tyndale, William  110n.17 Udall, Nicholas  137, 149–50, 150n.66 Underdown, David  168n.35

Valla, Lorenzo  49–50 Gesta Ferdinandi Regis Aragonum 149 In Bartoli de insigniis et armis libellum 48–9 Van Es, Bart  95–6, 149 Vergil 70–3 Aeneid  89, 139–40 Vergil, Polydore Anglica Historia  35, 109 Verstegan, Richard  89n.51 Wall, Wendy  156–7 Walmsley, Thomas  31–2 Walter, Hubert  25n.34 Ward, Thomas  150n.66 Ware, James  77n.2 Warren, Christopher  10 Webbe, William  82n.21, 85–6 Weimann, Robert  2–3, 181–2, 182n.89, 183n.93 West, Will  128–9 Westminster Hall  27–9, 51 Whitney, Geoffrey  8, 135n.10 Whitney, Isabella  2, 8–10, 16, 135n.10, 137n.13, 138n.22, 140n.29, 194–6 and commonplaces  18–19, 133–8, 141–2, 145–56, 150n.66, 159–60, 194–5 and humanism  12, 135, 135n.10, 141–2, 148–50, 149n.64 and London  18–19, 42, 135–6, 138n.22, 143–5, 145n.47, 150, 156–8 A Sweet Nosgay  12, 18–19, 42, 133–9, 134n.7, 135n.10, 138n.22, 139n.25, 141–58, 141n.34, 144n.45, 145n.47, 146n.49, 147n.51, 149n.64, 150n.66 Williams, Ian  30 Williams, Raymond  2n.5, 197–8 William the Conqueror  35–7, 83–5, 85n.29, 87–8, 96–7, 108–11, 152, 177–8 see also Norman Conquest wills and testaments  18–19, 146n.49, 156–7 see also mock testaments Wilson, Luke  2–3, 10 Wilson, Thomas The Art of Rhetoric 10–11 Wood, Andy  21n.4, 25n.28, 168–9, 168n.35 Woods, Gillian  171 Woods, Susanne  123n.67 Wootton, David  74–5 Worden, Blair  107–8, 115–16 Woudhuysen, Henry  129–32, 132n.85 Wrightson, Keith  168n.35 Year Books  24n.26, 27–30, 29n.53, 32 Zurcher, Andrew  98n.78

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi

OUP CORRECTED AUTOPAGE PROOFS – FINALS, 05/08/20, SPi