Staging slander and gender in early modern England 9780754633846, 0754633845

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Women and Gender in the Early Modern W orld Series E ditors: A lly son Poska and Abby Zanger In the past decade, the study o f women and gender has offered some o f the most vital and innovative challenges to scholarship on the early modern period. Ashgate’s series o f interdisciplinary and comparative studies, ‘Women and Gender in the Early Modern W o rld ’ , takes up this challenge, reaching beyond geographical limitations to explore the experiences o f early modern women and the nature o f gender in Europe, the Americas, Asia, and Africa. Titles in the series include: Women, A rt and the P o litics o f Identity in Eighteenth-Century Europe Edited by Melissa Hyde and Jennifer M ila m A rchitecture and the P o litics o f Gender in E a rly M odern Europe Edited by Helen H ills The M edici Women Gender and Power in Renaissance Florence Natalie R. Tomas 4S hall She Famish Then?' Female Food Refusal in E arly M odern England Nancy A. Gutierrez M idw iving Subjects in Shakespeare’s England Caroline Bicks Gender, Society and P rin t C ulture in Late-S tuart England The c u ltu ra l w orld o f the Athenian M ercury Helen Berry W idowhood and Visual C ulture in E a rly M odem Europe Edited by A llison Levy Subordinate Subjects Gender, the P o litic a l N ation, and L ite ra ry Form in England, 1588-1688 M ihoko Suzuki

Staging Slander and Gender in Early Modem England

IN A H A B E R M A N N F rie d ric h A le x a n d e r U n iv e rs ita e t, E rla n g e n

ASHGATE

©Ina Habermann 2003 A ll rights reserved. No part o f this publication may be reproduced, stored in a retrieval system, or transm itted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the p rior permission o f the publisher. Ina Habermann has asserted her right under the Copyright, Designs and Patents Act, 1988, to be identified as Author o f this Work. Published by Ashgate Publishing Lim ited Gower House C roft Road Aldershot Hants G U I 1 3HR England

Ashgate Publishing Company Suite 420 101 Cherry Street Burlington, V T 05401 -4405 USA

Ashgate website: http://www.ashgate.com

British Library Cataloguing in Publication Data Habermann, Ina Staging slander and gender in early modem England. (Women and gender in the early modem world) 1 .English drama - Early modem and Elizabethan, 1500-1600 H istoiy and criticism 2.English drama - 17th century History and criticism 3.L ib el and slander in literature 4.Sex role in literature I.Title 822J09353

Library of Congress Cataloging-in-Publication Data Habermann, Ina, 1965Staging slander and gender in early modem England / Ina Habermann. p. cm. (Women and gender in the early modem world) Includes bibliographical references and index. ISBN 0-7546-3384-5 (alk. paper) 1. English drama-Early modem and Elizabethan, 1500-1600-History and criticism. 2. Libel and slander in literature. 3. Shakespeare, W illiam , 1564-1616-KnowledgeManners and customs. 4. Shakespeare, W illiam , 1564-1616-Characters-Women. 5. English drama-17th century-History and criticism. 6. Sex role in literature. 7. Women in literature. I. Title. II. Series. PR658.L5H33 2003 822\309353-dc21 2003040363 ISBN 07546 3384 5 Printed and bound in Great B ritain by MPG Books Ltd, Bodmin, Cornwall

Contents

Acknowledgements Introduction: Tongues o f Fire 1

2

3

4

5

6

7

8

vi 1

H ow to Do Things with Words {Romeo and Ju lie t, treatises on rhetoric)

13

The Rhetoric o f Slander {O thello, The O rator)

27

The Law o f Slander (Treatises on the law)

43

The Brokers o f Oral Reputation (Treatises on the law, The D e v il’s Law Case, A Cure fo r a Cuckold, The M erry Wives o f W indsor)

59

Fem ininity between Praise and Slander {II Pastor Fido, The D evil Is an Ass, Love's Victory)

11

The Poisoned Tongue (Treatises on slander, Lingua)

99

The Tongues o f Pentecost (Treatises on the tongue, M ary Sidney’ s Psalm translation)

115

The Slandered Heroine {O thello, The Tragedy o f M ariam )

135

Notes Select B ibliography Index

153 189 197

Acknowledgements

It is d iffic u lt to adequately thank everybody who has helped make this book see the light o f day. I began the project w hile w orking and studying at Klaus Reichert’s Zentrum zur Erforschung cler F rtihen Neuzeit (“ Renaissance Institute” ) in Frank­ furt. Klaus Reichert’ s own scholarship as w ell as the contact w ith the many outstanding scholars who came to Frankfurt at his invitation sparked my interest in the early modem period, and I am very grateful fo r this. I would also like to thank M onika Beck, Gisela Engel, V ictoria von Flemming, Conny Losch, Gesa Mackenthun and Susanne Scholz as well as the “ Women’ s Studies Caucus” o f the Department o f English at Frankfurt University. A special thank you goes to Verena Lobsien fo r her interest, her kind support and her astute criticism . Part o f my research was earned out in M unich where I received a grant to jo in the “ Graduiertenkolleg Geschlechterdifferenz & Literatur” . I would like to take the oppor­ tunity to thank the Deutsche Forsehungsgemeinschaft for funding my project. Particular thanks are due here to Ina Schabert, who offered scholarly advice, un­ fa ilin g encouragement and the most generous support. W ithin the context o f the M unich graduate seminar, I would also like to thank Claudia Breger, Ingeborg Boltz, Tobias Fabricius, Erika Greber, Annegret Heitmann, B ritta Herrmann, Katrin Lange, Gerhard Neumann, Sigrid Nieberle, Heike Paul, Sabine Schulting, and Alexandra Tischel. Thanks are also due to my colleagues in the English De­ partment o f the University o f Erlangen, particularly to Doris Feldmarm, as well as to some b rillia nt students, among them Nadine Bohm and Susanne Kroner, and to the members o f the English Dramatic Society fo r giving me an opportunity to renew my practical acquaintance with theatre and for making me feel at home. Despite my German background and affiliations, most o f this book was written , in London. The unique scholarly community encountered there provided a basis for my work and crucially influenced the shape o f this study. M y heartfelt thanks for so generously including the seasonal workers from Germany into their lives go to Catarina Albano, T im Armstrong, Michaela Giebelhausen, Eliane Glaser, Andrew Gordon, Margaret Healy, Thomas Healy, Gabrielle Parker, Ken Parker, Nicole Pohl, Bettina Weichert and Sue Wiseman. Most particularly, I would like to thank Gordon M cM ullan fo r many kindnesses, for good advice, and for his friendship. An early opportunity to present and discuss part o f my work was kindly provided by Manfred Pfister and K urt Tetzeli von Rosador at their Renaissance W ork-inProgress Seminar held at Weimar in 1996. In the summer o f 1998, I attended the “ Renaissance, Law and Literature” conference, organized by Loma Hutson and

ACKNOWLEDGEMENTS

vn

Erica Sheen. This conference happened at a most convenient point in my work when I was wrestling w ith legal history, and gave me many helpful insights. I would particularly like to thank Lorna Hutson, whose thinking has crucially influenced my own as w ill no doubt be obvious. Further thanks go to Erika Gaffney for her interest in this project and for her support, to the anonymous scholar who read my book for Ashgate and provided most helpful comments, and to the Ashgate staff, particularly to Kristen Thorner, for seeing the book through the press. Finally, I have the pleasure o f thanking David Matthews for infusing the itinerant scholar’s life with warmth and affection, and Peter Rutkowski, who has proved a great friend in need, keeping my feet on the ground and my eyes on the horizon. I am also very grateful to my friends and fam ily who generously accepted the fact that I spent more time with my work than w ith them. M y gratitude to Bernhard Klein is truly beyond words.

F o r B e rn h a rd

INTRODUCTION

Tongues o f Fire

Happy are they that hear their detractions and can put them to mending. W illiam Shakespeare, Much Ado About Nothing

The Argument Honour is a key concept o f Renaissance culture. But honour can never be invoked without conjuring up the image o f its loss. The process through which individuals try to secure their honour - that is, both their self-esteem and their social standing has frequently been discussed under the name o f self-fashioning. Fashioning the self, however, implies a fashioning o f others that is not necessarily favourable to them. Indeed, the fear o f being the object o f unfavourable representations and be­ coming a victim o f detraction is such a conspicuous phenomenon in early modern England that it is surprising it has received so little critical attention. The present study aims to remedy this situation by making defamation - the negative “ fashioning o f others” - its central concern. I consider defamation principally as a mode o f social exchange which operates on the basis o f the spoken word - hence my overall focus on o ra l defamation, or slander. W hile the differences between slander and w ritten or graphic defamation, mostly classed as libel, are not always clear cut, the latter is so much more tangible as historical evidence, so much more openly political and bound up w ith questions o f censorship and government that it makes sense to treat it as a separate subject. Hence this book aims to examine the cultural discourse o f slander. Sclaunder is an accusation made for hatred, vnknowen to him that is accused, wherein the accuser is bel6eued, and hee that is accused is not called to giue answer, or to denye any thing, and this definition standeth on thr6e persons, euen like as matters o f Come­ dies doe that is, by the Accuser, and by him that is accused, and by the hearer o f the accusement.1

This is how in 1573 an anonymous author explains the evil o f slander. The passage introduces several dimensions o f the threat o f oral defamation central to my argument in this book - its clandestine and yet social nature, its ethics, and its theatricality. I started the project w ith a set o f fa irly simple questions, such as H ow is slander defined? What is its linguistic basis? What is the nature o f its threat? H ow does the comm unity deal with it? Who talks about it, how, and why? How

2

STAGING SLANDER AND GENDER

does it affect the sense o f selfhood o f those involved in it? It soon became clear that slander is an extremely complex phenomenon which pervades the entire early modern culture. Most immediately, slander is a form o f communication, a par­ ticular type o f speech act which, once assumed or recognized to be defamatory, becomes a public event with ethical as w ell as ju rid ica l and theological im p li­ cations. As vltu pe ra tio , slander can also be a formalized rhetorical exercise. Symbolically represented by various kinds o f imagery, slander itse lf can become a symbol designed to express a more abstract instance o f negative representation or negative psychological dynamic. These rhetorical elements and symbolizations play a prominent part in literary negotiations o f oral defamation. The difficulties o f method I faced were those always encountered when looking for written traces o f oral communication. The actual moment o f enunciation is elusive, and the change o f medium from the oral to the textual involves crucial changes as w ell as necessarily reflecting the interests and perspectives o f the writers. In the case o f slander, the difficulties are even more pronounced due to the clandestine nature o f this type o f communication - really successful slander by definition is not detected and therefore not recognized as a distinctive exercise in bad faith. Moreover, slander is a contentious issue, a question o f definition and a matter o f debate, because quite apart from the difficulties o f placing a verbal injury in the appropriate context and assessing damage, the malicious intent which is usually taken to be a crucial ingredient o f slander is notoriously d iffic u lt to prove.2 Slander differs from direct insult in that it involves a triangular constellation which I label the “ slander triangle” - regardless o f the number o f people actually involved, there are three positions, namely those o f slanderer, listener, and victim . People may be involved in such a triangle w ithout their knowledge or become aware o f negative effects belatedly, harmed only once they have “ seen the spider” , as Leontes puts it in Shakespeare’ s The W inter’s Tale. But people may also place themselves w ithin the slander triangle quite consciously - usually as victims - or change positions and play different roles at different times. The circumstances o f such positioning quite crucially determine the effect on the sense o f selfhood o f those involved in verbal defamation. There is ample evidence in early modem England o f practices that were labelled slander; accusations, vindications and representations abound which testi­ fy to the profound anxiety surrounding the subject. Looking fo r answers to my questions, I thought it best to view slander from various perspectives, highlighting different sections o f the discursive field in quest o f a bigger picture. Or to use another image, I have follow ed several pathways, as i f exploring some forest, looking fo r slander in language, rhetoric, the law, communal interaction, literature and authorship, the body, and religion. To be sure, these pathways intersect at certain points, glimpses may be had o f other possible routes, and the temptation o f wandering from the path is always strong. But this has proved a fascinating journey into the heart o f early modem culture, an account o f which is presented in this study. The most striking discovery at an early stage o f the project, a ghost met on every path, was the profound gendering o f slander. U ltim ately, this should not

INTRODUCTION: TONGUES OF FIRE

3

come as a surprise since slander is a cultural practice intrinsically connected with othering and w ith constructions o f selfhood,’ which are always gendered. This insight caused an ever stronger focus on constructions o f masculinity and fem ini­ nity and induced me to look increasingly fo r evidence o f gendering even when it was not immediately obvious, and to select my material accordingly. The most obvious result o f this is an emphasis on sexual slander, an area which is strongly associated w ith women and where there cannot even be a pretense o f gender neutrality. It emerges that an increasingly strong historical and symbolic lin k was forged between fem ininity and slander, and that this has proved detrimental to women. Another discovery was the theatricality o f the discourse, expressed in the mention o f “ matters o f Comedies” in the definition quoted above. The figure o f the slander triangle suggests that slander is by its very nature dramatic and histrionic, which certainly plays a part in making it a prominent theme on the contemporary stage. This study is conceived as a chapter in the history o f culture, and must therefore necessarily be interdisciplinary, drawing on legal history, social history and legal anthropology, philosophy, theology, literary criticism and gender studies. But comparing a range o f materials - perhaps in line w ith my training as a literary critic - I have found drama to offer the most comprehensive contemporary nego­ tiation o f slander and have accordingly made it the principal scene o f this book. Records o f law cases and drama both retain a residual orality, a social energy in Stephen G reenblatf s words, which lends its e lf to the study o f an oral phenomenon like slander. Drama has the further advantage o f actively and self-consciously negotiating the issues it takes up, and the emotional engagement permitted by modem performances adds to its heuristic value. There are, however, other his­ torical and structural reasons fo r turning to drama which I w ill address in the fo llo w in g section before giving a b rie f summary o f my argument and setting the scene w ith a short, paradigmatic reading o f Shakespeare’ s M uch Ado About N othing.

“ Images to think with” 3- Drama as Equity Independent o f the special subject under consideration, drama in early modem England is usually seen as a crucial form o f cultural exchange. “ O f the age’s many forms o f representation” , Julia Briggs argues, “ drama was the most vital, fu lly responsive both to general human emotions and experiences and to the particular pressures, ideas, philosophies, and attitudes o f the day.” 4 A long the same lines, J.R. M ulryne states that “ [tjheatre is now seen crucially as agent, and not or not merely reflection, o f the events and issues o f its time, a culturally and p olitically active receiver and transmitter o f social energies.” 5 The dramatic text, the interaction o f various sign systems in a performance, and the theatre as social space and public event combine to create a specific “ power o f mimesis” .6 Stephen Greenblatt aptly summarizes the psychological effects o f theatrical display:

4

STAGINO SLANDER AND GENDER

The mode o f the drama, quite apart from any specific content, depended upon and fos­ tered in its audience observation, the close reading o f gesture and speech as manifesta­ tions o f character and intention; planning, a sensitivity to the consequences o f action (i.e,, plot) and to kairotic moments (i.e., rhetoric); and a sense o f resonance, the convic­ tion, rooted in the drama’ s medieval inheritance, that cosmic meanings were bound up with local and particular circumstances.7

A focus on the theatricality o f slander allows fo r a reciprocal illum ination o f the mechanisms o f verbal defamation and the function o f contemporary drama. Re­ ferring to the anonymous treatise quoted above, I have noted that the slander trian­ gle is a theatrical constellation. N ow the audience watching a slander plot is in a privileged position because it can observe the mechanisms o f slander at a mo­ ment when, from the point o f view o f the characters in the play, the slander has not yet become a public event. Only the slanderer knows what he or she is doing, sometimes, vice-like, addressing the audience, the listener believes the accusation, and the victim remains blissfully unaware until he or she is confronted w ith the consequences o f the detraction whose source may be revealed at some point or may even remain permanently hidden. C rucially, slander plots also foreground the precariousness o f subject positions, focusing on the psychological consequences o f betrayals o f trust, and o f shame. The slanderer follow s a secret agenda and, in ­ spired by feelings o f hatred, envy or revengeful ness, explores the mechanisms o f manipulation, the credulous listener commits an error o f judgment, and the victim is confronted w ith an abject image o f him- or herself. Watching slander on stage places the audience in an “ impossible” position and is therefore as highly dramatic as it is psychologically affective and instructive. The specific heuristic value o f drama lies in its perform ativity, in the possibility to place human actions and their consequences in front o f the audience in such a way that they can be examined from a point o f view otherwise unavailable in real life. This quality also accounts for the structural and historical affinity between drama and forensic inquiry. In what follow s, I w ill devote some more space to the connections between dramatic and forensic modes o f inquiry, since these connections w ill form the basis o f my subsequent argument. H istorically, the inns o f court played a prominent role in the development o f drama in early modern England. Theatrical activities at the inns included pro­ fessional and ecclesiastical revels as well as masques and dramatized pleading exercises like moots and boltings. Learning the law, recreation through art, competition fo r advancement and the celebration o f the institution all took place in a theatrical framework. When an institutionalized and professional theatre emerged in the latter part o f the sixteenth century, many dramatists had legal training and/or were involved with the law at various levels, and lawyers were a conspicuous group w ithin the audience, especially in the indoor theatres.8 Incidentally, this development is not exclusive to England and may also be observed on the con­ tinent. The society o f the law clerks o f Paris, called the Basoche, was heavily in­ volved w ith the theatre. According to Howard Harvey, the law clerks’

INTRODUCTION: TONGUES OF FIRE

5

interest in the theatre was a natural one, for they participated daily in the natural drama o f the courtroom[.] ... [W]e find the law clerks, in 1442, invited by the Confreres de la Passion to assist them with the comic interludes provided between the journees o f their mystery plays. From that moment the Basochiens seem to have arrogated to themselves the more or less exclusive privilege o f staging comic plays in Paris ... When real cases were lacking, the clerks probably tried fictitious ones, as law student groups do to this day. These imaginary lawsuits, as well as the real ones, must have given the law clerks good training in the art o f dramatic composition, since the preparation and trial o f a case in the courtroom is essentially a dramatic art. In addition to these serious exercises, the Court o f the Basoche began early to prepare burlesque lawsuits, called causes grasses because they were given at carnival time, lawsuits which provided special opportunities for practice in the w riting and playing o f farce comedy.9

A t this point, an absolute institutional differentiation between dramatic enter­ tainment and forensic inquiry had not yet taken place. W hile it did occur in a slow process during the sixteenth century, deliberative and forensic inquiry was still at the centre o f legal and theatrical action. Both drama and rhetorical inquiry were seen as heuristic instruments to analyse human behaviour, to identify errors o f judgement and determine the right course o f action. W hile this conception o f drama newly emerged in the early modem period, it was by no means un­ precedented and in fact quite strongly reflects the influence o f antiquity. In her seminal study Poetic and Legal F ictio n in the A risto te lia n T ra d itio n , Kathy Eden traces the particular conjunction o f drama, philosophy and the law under consideration here to the teachings o f Aristotle, which remained influential in Roman times through such writers as Cicero and Quintilian and were taken on board again in the early modem period, supplemented w ith some reconfigurations introduced by Augustine. The conjunction hinges on the concept o f equity ( epieikeia), or fair judgement, a concept introduced to remedy certain structural faults o f the law .10 The law must necessarily be too general to take adequate account o f individual circumstances and the particularities o f a case, so that the individual case must be judged as the lawgiver would judge it i f he were present. Equity introduces an element o f fle x ib ility and discretion into the application o f law which ultim ately has the potential to alter the law quite radically and which, from a philo­ sophical point o f view, mitigates between the general and the particular. Since poetry, and particularly tragedy in A ristotle’s view, operates at the same level between the general and the merely incidental and has the additional advantage o f being able to “ move the mind” , it is equitable, and therefore capable o f serving as a superior instrument o f inquiry into and judgement o f human actions. Philosophical, juridica l, and aesthetic aspects converge in the concept o f equity, which also appears in a Christian context, related to the concepts o f caritas and m isericordia. Early modem lawyers rediscovered equity and gave it unprecedented attention, at the same time rediscovering the heuristic value o f drama.11 In his book The Tudor P lay o f M ind, Joel Altman draws attention to the con­ nection between Tudor drama and forensic and deliberative inquiry. His main argument is that “ among the plays that emerged from this rhetorical culture, many

6

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were literally constructed as questions” 12 creating an explorative drama which transferred rhetorical instruments o f deliberation like the controversial the suasoria and the argumentum in utram que partem to a theatrical context. The early humanist dramatists revealed their spiritual affinities in no more direct way than by turning quaestiones infinitae into fin ita e , and playing them before audiences. In doing so, they can hardly be said to have realized the potential for complex under­ standing that is inherent in mimesis, but the structure o f their plays often reveals more clearly than those o f their successors the main outlines o f this process. ... [Tudor drama] was the special child o f a rhetorical culture which flourished in England in the sixteenth century, and slowly disappeared in the seventeenth. The faith o f this culture in the power o f discursive reasoning, its confidence in the capacity o f an amoral art to confer long-term moral benefits upon society, and its sheer jo y in language, produced an exuberant, frequently uncontrolled drama. This drama led the mind to wider appre­ hensions through a bewildering variety o f rhetorical devices - inductive argument, allegorical witplay, sudden shifts o f tone and attitude, improbable but persuasive juxtapositions o f images from the past and the present.13

A t the end o f the period Altm an looks at, playwrights were indeed beginning to realize “ the potential fo r complex understanding that is inherent in mimesis” , even as their faith in discursive reasoning began to wane. It is not accidental that the developments in theatre coincide w ith the renewed emphasis on equity and the introduction o f the “ action on the case” in the juridica l sphere - proceedings which investigate the particularities o f a case rather than trying to fit it to a generalized rule or “ w rit” . As Kathy Eden reminds us, the role o f poetry as a special mode o f inquiry was duly theorized by Philip Sidney in his Defense ofP oesie: Armed with the mediating power o f the fictional image, the poet is in Sidney’ s words a “ moderator” !.] ... As such, he shares the elevated status granted by Augustine to Christ, as the Mediator between humanity and the virtuous activity that leads to salvation. Finding his own in the mean between the bare was, on the one extreme, and the bare rule on the other, Sidney’ s poet also joins the even more ancient and very honored ranks o f Plato’ s and Aristotle’s living legislator - whose office, as it happens, Christ himself was thought to fill. Whereas Plato, however, noted only provisionally the analogy be­ tween the lawgiver and the poet, Aristotle ... extended his theory o f the fictional method to include both the equitable and the poetic treatment o f human action. In spite o f the many centuries o f revision, then, poetry, with Sidney, recovers its place once again not only beyond the limitations o f generality and particularity, but even beyond the further effects o f these limitations in the severities of the Law/law.14

In this study, I regard drama as equity, concerned w ith the action o f the case, which may contain but does not start from special questions or hypotheses, as is the tradition o f rhetorical deliberation, but with a particular story, albeit one held to be o f an exemplary nature. Moreover, rather than supplying a mere illustration o f a problem, theatre gives the audience “ images to think w ith” , which enables the dy­ namic and unpredictable exchange indispensable fo r true inquiry and exploration.15

INTRODUCTION: TONGUES OF FIRE

7

Equity emerges as the common denominator in law and literature, theology and philosophy, but its ethics o f fair judgement and good faith are forever shadowed by the dramatic interference o f bad faith, which is the essence o f slander.

Gendering Slander M y first concern in this book is language and its susceptibility to slander. Chapter 1 argues that the metaphorical nature o f language provides the linguistic basis fo r defamation. This is due to the nature o f the relation between words and things and to the ubiquity o f “ translated speech” in the form o f tropes and figures which results from this relation. I explore the nexus between words and things in a read­ ing o f Shakespeare’s Romeo and J u lie t which is not directly concerned w ith slander, but rather serves as a kind o f linguistic propaedeutic. The discussion o f the linguistic dimension is followed by an analysis o f rhetoric as the “ art o f per­ suasion” , which shifts the focus from an exploration o f the gaps between words and things to the social sphere, and the gaps between saying and meaning. Here, I consult some influential English treatises on rhetoric by authors such as Thomas W ilson and George Puttenham. The discussion o f rhetoric continues in chapter 2, the centrepiece o f which is a reading o f Shakespeare’ s O thello as an “ anatomy o f persuasion” focused on Iago and Othello, the slanderer and the listener in a particularly pernicious slander triangle. The wider issue explored in O thello through the slander plot concerns the nature and the ethics o f eloquence. The great power o f persuasive speech to do harm is epitomized in the clandestine actions o f the slanderer and the dire consequences not only for listener and victim , but fo r all involved. The anxiety surrounding eloquence in the profoundly rhetorical culture o f early modem England, I fin ally suggest, is bracketed by gendering. Eloquence is salvaged w ithin a masculine discourse by dividing it into “ good” and “ bad” and by associating “ bad” eloquence w ith fem ininity and effeminacy, a process which I illustrate w ith the example o f a collection o f legal case studies entitled The O rator. Once slander becomes a public event w ithin a community, it appears in the ju rid ica l sphere as an offence, an issue which I pursue in chapters 3 and 4. Chapter 3 traces the development o f the legal remedies fo r slander, drawing on legal treatises and the findings o f legal history. I argue in this context that certain developments in slander law resulted from a humanist approach to language and contributed to wider changes in the juridica l sphere, especially with regard to the role o f equity. The legal sphere is then shown as a patriarchal institution which fosters a particular type o f masculinity based on learning and authority. Such pro­ fessional power over the word entails the right to judge language and define slander. This process o f “ hoinosocial bonding” 16 relegates women to interstitial spaces, which makes it d iffic u lt to assess their position towards defamation law with the methods o f conventional historiography. Chapter 4 proceeds to examine women’ s agency in the legal context. Here, analyses o f treatises on the law are brought into dialogue w ith the findings o f legal anthropology and some plays

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foregrounding legal issues. It emerges that in the period under consideration, after a wave o f slander litigation in the church courts, women’ s possibilities to seek a legal remedy for slander were reduced, and their role w ithin communal conflict settlement was being negotiated. The discussion focuses on John Webster’s “ equitable drama” , finishing with a short reading o f Shakespeare’ s The M erry Wives o f Windsor. Women are considered as “ brokers o f oral reputation” ,17 in Laura Gowing’ s phrase, since they engage in gossip and an informal negotiation o f people’s characters and relations. Using slander for their own ends, they are also its most conspicuous victims. In the late sixteenth and early seventeenth centuries, in the course o f a wider functional differentiation o f society, literature emerged as a distinctive field, and chapter 5 w ill argue that in stage plays self-consciously presented as innovative works o f art like Giovanni Battista G uarini’s I I Pastor F ido, male authorship is intrinsically bound up w ith literary constructions o f fem ininity between praise and slander. Slander, which occurs also on the plot level, serves in this instance to symbolize the negative bias against women in an intensely patriarchal and even misogynist discourse. This is achieved through privileging the two sides o f epideictic rhetoric, laus and vituperatio, in the literary fashioning o f femininity. In plays o f this type, expression takes precedence over equitable inquiry. The analysis o f I I Pastor F ido is then supplemented w ith a b rie f look at a play by an English author - Jonson’s The D e v il Is an Ass - and contrasted w ith M ary W roth’ s Love’s Victory. In her pastoral tragicomedy, W roth is less concerned w ith the construction o f fem ininity between praise and slander than w ith a more comprehensive, or equi­ table, negotiation o f gender relations. Chapter 6 examines treatises on defamation, showing that such treatises, which purported to discuss the subject in a general way, were always prompted by their authors’ individual grievances. This chapter also looks at the imagery used in re­ lation to slander, noting that the tongue plays a prominent part in this context. Treatises on defamation displace the menace o f slander onto women, which is effected through the feminization o f the tongue as an “ unruly member” . A reading o f Thomas Tom kis’ university play Lingua serves to illustrate this connection o f transgressive speech, embodiment, and femininity. Pursuing the issue o f the unruly tongue, chapter 7 turns to the religious discourse which treats slander as a “ sin o f the tongue” resulting in the corruption o f the souls o f slanderer, listener and victim. Like the treatises on defamation, theological publications on the sins o f the tongue consistently feminize slander, displacing the evils o f transgressive speech onto women. Consequently, women avoid the subject o f tongues in their religious w rit­ ings. M ary Sidney’s translation o f the psalms is an exception, however. Borrowing the authority o f the psalmist, and taking the stance o f the slandered righteous, Sidney resignifies her tongue as both pen and lute, singing and w riting the praise o f god w ith a tongue purified by art. As chapter 5 has already done, chapter 7 ex­ plores the uses o f the discourse o f slander in the w riting o f literature. Chapter 8 fin ally looks at the “ slandered heroine” , the virtuous woman wrongly accused o f incontinence, as the paradigmatic victim o f slander and as a powerful

INTRODUCTION: TONGUES OF FIRE

9

fantasy o f femininity. A fter exploring the construction o f subjectivity in the dis­ course o f slander, my discussion returns to Shakespeare’ s O thello, focusing this time on Desdemona and comparing Shakespeare’ s tragedy w ith Elizabeth Cary’s treatment o f the “ slandered heroine” in The Tragedy o f M ariam . It emerges that Cary uses the convention to vindicate the character o f the assertive Mariam. As Cary ironically presents M ariam ’ s preference o f human dignity over w ifely sub­ mission as her tragic error, or ham artia, she resignifies the position o f victim , thus drawing on the discourse o f slander fo r a strongly political vision o f female agency.

Much Ado About Nothing? Shakespeare’ s M uch Ado About N othing offers a paradigmatic representation o f the discourse o f slander as it is treated in this book.18 In a light-hearted and yet serious approach to its subject, the play anatomizes the rumour, gossip, hearsay, intrigue and slander that simultaneously enable and endanger individual self-fashioning and the social life o f the community. Beatrice and Benedick are perceived by their friends to be standing in the way o f their own happiness, so that a plot is devised to trick them into admitting their love. First Benedick, “ accidentally overhearing” his friends’ allegations against him, is led to perceive him self as the victim o f slander. The negative representation o f his character shocks him into seeing the error o f his ways. Beatrice is equally tricked by the women, and Hero even suggests in proleptic reference to her own fate that, in order to put Benedick o ff she w ill “ devise some honest slanders / To stain my cousin with. One doth not know / H ow much an ill word may empoison likin g ” (III. 1. 84-6). She w ill come to know in due course. Like Benedick, Beatrice thinks herself slandered - “ What fire is in mine ears?” (III. 1. 108) - but is simultaneously prepared to accept her friends’ critical account o f her and to rethink her behaviour. Thus, a learning process which could be conceived as the outcome o f a more shallow treatment o f the subject is placed at the beginning o f a more serious inquiry. The setup is extremely clever, since Beatrice and Benedick think they are the victims o f slander when, w ithin the slander triangle, they are in fact the listeners, hearing, and believing, “ slanderous reports” about each other’s allegedly desperate and unreasonable love. Thinking that they have “ heard their detractions” , they remain ignorant o f the lies told about them until the very end o f the play. W ith its exploration o f the dialogue between self-perception and intersubjective judgement, Much Ado is indeed, in Steven M ullaney’s assessment o f early modern drama, a “ laboratory for the production o f the modern subject” .19 There is a tangle o f three slander triangles, and most main characters occupy various positions in them. For example, Hero is a slanderer in one triangle and the victim in the other, Claudio is both slanderer and listener, and so on. The extent to which Don John is an outsider to the community appears in the fact that he is only the slanderer on one occasion and does not take part in the other transactions - although it should be noted that he

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perceives him self as a victim . In contrast to the tortuous nature o f slander, insult is much more direct: it may be seen at work in Leonato’ s and Claudio’ s verbal assaults on Hero as well as in Benedick’ s challenge to Claudio and, in a comic mode, in Beatrice and Benedick’ s verbal sparring. It is also a main theme with Dogberry, who is obsessed w ith reputation and goes about telling everybody that he was called an ass. However, w ith regard to both slander and insult, the play shows that it is not “ language” itse lf that wounds, but the intentions and contexts o f speech acts and their social consequences. Talking about others is perceived as a woman’s job. Women are depicted as “ brokers o f oral reputation” who possess intimate knowledge o f other people and are prepared to use it to further their own ends. Shakespeare almost proverbially alludes to the privileged sexual knowledge o f women when he has Leonato say, asked whether Hero is his daughter, “ Her mother hath many times told me so” (1.1. 86). Characteristically, Benedick immediately takes him up on this: “ Were you in doubt, sir, that you asked her?” (1.1. 87) In line w ith the women’s social tasks, they know much better than the men how to go about setting the trap for Beatrice and Benedick. They deliver their blank verse flourishes w ith confidence, aplomb and relish w hile the men come up with a rather wooden performance, constantly referring to Hero as the principal authority: “ D on P edro: Why, what effects o f passion shows she? ... Leonato: What effects, my lord? She w ill sit you - you heard my daughter tell you how. C laudio: She did indeed” (II.3. 100; 102-4). These are hilarious scenes, and the audience is fa irly sure to be com plicit in the comic plotting. The ominous nature o f slander does not appear because these are “ honest slanders” - an oxymoron i f ever there was one - and everything is done in good faith and w ith the best intentions, i f a trifle patronizing. The parallel plot line works like the evil shadow o f the first. Don John pours his sexual slander o f Hero into the credulous ears o f Don Pedro, Claudio and Leonato. Fittingly, Beatrice and Benedick, who have both gone through a prelim inary learn­ ing process by believing themselves to have been at the receiving end o f detraction, do not credit the allegations against Hero and suspect slander, Benedick even correctly locating the source o f it: “ [ I ] f their wisdoms be misled in this / The practice o f it lives in John the bastard, / Whose spirits to il in frame o f villainies” (IV . 1. 186-8). As the truth comes to light, Claudio’ s ritualistic penitence as well as Hero’s symbolic rebirth after being “ done to death by slanderous tongues” (V.3. 3) are in the spirit o f pastoral tragicomedy, which characteristically combines social ritual and individual psychodrama. As in Beatrice and Benedick’ s psycho-social education, “ accidental overhearing” wards o ff the potentially disastrous effects o f Don John’s bad faith on the community. While Dogberry and his companions are too dense to understand the fu ll import o f Borachio’s confession, they are still the means o f making it general knowledge, thus giving slander its true name and turning it into a public event: “ B orachio: ... What your wisdoms could not discover, these shallow fools have brought to light, who in the night overheard me confessing to this man how Don John your brother incensed me to slander the Lady Hero” ( V .l. 217-20). It appears here that, while women are often depicted as the

INTRODUCTION: TONGUES OF FIRE

11

brokers and guardians o f reputation, they immediately forfeit their place in the social fabric once their sexual honour is touched. Hero’ s fate is an exemplary case o f fem ininity fashioned between praise and slander: most praised as an ideal woman, hers is the deepest fall. She instantly becomes the “ rotten orange” , “ but the sign and semblance o f her honour” (IV . 1. 32-3), an “ approved wanton” (IV . 1. 42), her maiden blush resignified to a blush o f guiltiness. Claudio’ s accusations clearly draw on a ju rid ica l paradigm, since his rejection o f Hero implies assumptions about how to establish guilt and about types o f valid p ro of in view o f a potential gap between inner being and outward seeming. His (almost) tragic error, like Othello’s, lies in an overly hasty acceptance o f fabricated “ p ro o f” , but it is clearly an error facilitated, and probably mitigated for many spectators, by the general climate o f suspicion surrounding women. The “ slandered heroine” epitomizes and expresses the overwhelmingly sexual definition o f femininity, and its resulting precariousness. In my reading o f M uch Ado, I have implied that the interrogative gesture o f the play invites the audience to witness how fem ininity is both tainted and circum­ scribed by sexual slander, and o f course I think this reading is supported by the text. However, the play does not actually argue this point, since its potential fo r a critique o f conventional fem ininity may be obvious to feminists, but usually not to critics w ith a patriarchal frame o f mind. So what exactly does equitable drama do? Dennis Kezar helps to answer that question in readings o f T roilus and Cressida and Julius Caesar where he argues that Shakespeare recognizes the terms o f the theatrical economy in which he operates: while the theater is open, no case is closed; when the ju ry is “ the common eyes” , a moment can transform p la in tiff into defendant, text into pretext, the carefully wrought self into an appropriated other; when the price o f admission buys the audience something as insubstantial as a play, the theater compensates by procuring all that it represents as the interpretive property o f this audience.20

Kezar’ s view o f early modern theatre helps to throw into re lie f the character and the merits o f equitable drama. A never-ending stream o f critical (re)assessments and performative interpretations shows that “ while the theater is open, no case is closed” . Equitable drama neither prejudicates nor preaches, but it presents its interrogative gestures, its “ actions o f the case” , w ith great energy and insistence. It offers “ images to think w ith” , presenting and inviting the polyphony o f argument, and therefore no appropriation w ill be final. When it dawns on Beatrice and Bene­ dick that they were tricked into confessing their love, doubt returns to their minds concerning the other’ s true feelings. They w ill have no more hearsay and are quite prepared to retreat once more behind their own w all o f words. In an exchange emulating modern juridica l procedure, indisputable rather than “a rtificia l” , rheto­ rical p ro o f must be produced, and it appears in the form o f sonnets in the reluctant lovers’ own handwriting, res rather than verba. A t this point, equitable drama pays a charming and quite cunning tribute to poetry as the ultimate instrument fo r the

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inquiry into and expression o f truth. There is no doubt that the sonnets speak the language o f the heart, as equitable drama affords a privileged insight into the cau­ ses and effects o f human actions. But this insight w ill be crucially determined by what the spectators are w illin g and able to see and hear at this moment in time. M uch Ado ends w ith expressions o f good faith which receive a momentary darkening with the news that Don John is taken prisoner and awaits punishment. Friendship and communal peace have been restored and are expressed in the dance which closes the show, but Shakespeare reminds us that the slanderer is waiting, ju st out o f sight, captive but unreformed and exempt from the comic closure. As I see it, the reconciliation is thus placed under a question mark, since the tragicomic misfire o f communication that haunts the community in general and fem ininity in particular cannot be exorcised. M uch Ado shows signs and referents at war with one another, it explores the communicative value o f language, the persuasive power o f rhetoric and the role o f intention, the meaning o f defamation as a public event w ithin the community and its juridica l and ethical dimensions. The play interrogates the social and psychological shaping power o f slander, its fundamen­ tally dramatic, theatrical quality and, most prominently to me, its gendered nature. There is indeed “ much ado” , but the “ nothing” there is much ado about is female sexuality which continues to set tongues on fire.

CHAPTER ONE

H ow to Do Things w ith W ords

“ The question is,” said Alice, “ whether you can make words mean so many different things.” “ The question is,” said Humpty-Dumpty, “ which is to be master - that’s all.” Lewis Carroll, Through the Looking-Glass

Most o f this book is concerned w ith slander as a social, ju rid ica l, psychological, ethical and also aesthetic phenomenon. But slander also has a linguistic dimension, and as a basis for further reflections, the semantics o f slander need to be consid­ ered. I w ill argue in this chapter that the susceptibility o f language to slander is due to the metaphorical nature o f language which appears in the signifying mechanisms o f individual words as well as in types o f “ translated speech” such as tropes and figures. Far from being mere “ decorations” , tropes and figures suggest an uncanny relation between signs and referents, and the ghosts created here enter into the realm o f communication. In its evil-intentioned divorce o f saying and meaning, slander re-enacts, and thus draws attention to, the fractured and yet not quite arbi­ trary relationship between the w orld and its linguistic representation. I w ill explore this relationship in a reading o f Shakespeare’ s Romeo and Ju lie t which is not d i­ rectly concerned with slander but, addressing the nexus between words and things, rather serves as a kind o f linguistic propaedeutic. I w ill then move from semantics to pragmatics and look at rhetoric as the “ art o f persuasion” ,1 which shifts the focus from an exploration o f the gaps between words and things to the social sphere and the gaps between saying and meaning which ultimately make slander possible. In his introductory essay to Shakespeare’ s Romeo and J u lie t in the Norton edi­ tion, Stephen Greenblatt draws attention to the creative potential o f the distance between words and things, alluding at the same time to the early modern notion o f the similitude o f a “ borrowed” to the “ proper” name o f a thing. Wordplay would be impossible in a language in which words were strictly bound to things in a perfect correspondence between naming and nature. Punning is possible only i f there is some slippage in sound and meaning, so that one sign can refer to two or more objects or, as Mercutio w ittily demonstrates in his Queen Mab speech, to nothing at all. Yet wordplay can also suggest surprising linkages and secret realities.2

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Such “ wordplay” Is intricately connected to figurative speech, which early modem treatises on rhetoric interpreted as departures from the “ proper” sense. As Henry Peacham explains, a “ Figure Is a forme o f words, oration, or sentence, made new by art, differing from the vulgar maner and custome o f w riting or speaking.” A trope “ is an artificial! alteration o f a word, or a sentence, from the proper and natu­ ral signification to another not proper, but yet nigh, and likely.” 3 This opinion is shared by George Putlenham in his The A rte ofE nglishe Poesie: Figurative speech is a noueltie o f language euidently (and yet not absurdly) estranged from the ordinary habite and manner o f our dayly talke and writing and figure it selfe is a certaine liuely or good grace set vpon wordes, speeches and sentences to some purpose and not in vaine, giuing them ornament or efficacie by many maner o f alterations in shape, in sounde, and also in sense.4

The distinction between “ dayly talke and w riting” and figurative speech reproduces the same inconsistency about what is “ proper” that is also noticeable on the level o f names fo r things, which can be discerned in Puttenham’ s treatment o f the subject. Though he begins by stating, as quoted above, that figurative speech is different from ordinary daily talk, he later corrects his position to say that the use o f figures is common and natural; it varies in degree and can be perfected by art, but it cannot be avoided. [A ]ll your figures Poeticall or Rhethoricall, are but obseruations o f strange speeches, and such as without any arte at al we should vse, & commonly do, euen by very nature without discipline. But more or less aptly and decently, or scarcely, or aboundantly, or o f this or that kind o f figure, & one o f vs more then another, according to the disposition o f our nature, constitution o f the heart, & facilitie o f each mans vtterance: so as we may conclude, that nature herself suggesteth the figure in this or that forme: but arte aydeth the iudgement o f his vse and application^]5

The distance between word and thing is thus seen to vary, since there are thought to be denotations which are more natural and proper as well as others which are more artificial. W ith the latter, the distance between word and meaning is greater, but a cognitive process is involved, a literal movement w ithin the mind, which makes artificial expressions more entertaining or more conducive to understanding, a fact which both Thomas W ilson and Peacham emphasize. [N ]ot onely do menne vse translation o f wordes (called Tropes) for nede sake, when thei can not finde other: but also when they maye haue mooste apte wordes at hande, yet w yll they o f a purpose vse translated wordes. And the reason is this. Menne counte it a poynte o f witte to pass ouer suche woordes as are at hande, and to vse suche as are farre fetcht and translatedf.]6 [Men] seeing that by this meanes [translated speech] matters were well expressed,... re­ fused such words as were proper, and had litle sw^etnesse, or could not declare the

HOW TO DO THINGS WITH WORDS

15

nature o f the thing so well, and vsed other wordes borrowed from like things, both for the grace sake o f the similitude, and also for the cause o f perspicuitie o f the thing expressed.7

Modern cognitive theories explain this “ movement within the mind” as a result o f the brain’s modularity. The brain receives information about the environment through various channels and processes it in different ways. The links between the resulting structures are not automatic, but gaps have to be bridged, quite literally, in a creative and flexible manner. It appears that such incongruences must not be seen as shortcomings, but that they induce individuals to search for, or create, co­ herence and meaning and thus enable them to adapt and learn. As Ellen Spolsky puts it, [b]rain theory confirms that the inadequacies o f language are not merely matters o f local inadequacy - gaps that a larger vocabulary or a new metaphor could fill. ... The modu­ lar systems by means o f which individuals understand the world and their place in i t ... are both independent o f each other but also, and to differing degrees, interdependent. That they are not, however, entirely translatable one to another - that there are gaps - is the crucial point for hermeneutic theory. ... [Interesting to literary theory ... are the occasions when the gaps are not filled habitually or conventionally but creatively, as in literary texts. These texts, and likewise the subsequent interpretive texts that read the earlier ones, are profitably understood as responses to gaps in understanding that are not amenable to repair in conventional ways.8

English rhetoricians point to the creative potential o f the gaps resulting from the flexible and ambiguous relation between language and perception. This is o f course also a central concern o f literature, and authors embrace the paradox that the most “ far-fetched” expression can turn out to be most “ proper” . But this creative poten­ tial is also registered with uneasiness, because it opens the door fo r schemers and slanderers. From “ strange speeches” and double meanings it is only one step to duplicity i f evil is intended; as Richard, the Duke o f Gloucester puts it: “ like the formal Vice, Iniquity, / I moralize two meanings in one word.” 9 In Romeo and Ju lie t, language contains at once too much and too little mean­ ing. Greenblatt maintains that one o f the functions o f wordplay is ” to cram into brief utterances more meanings than language would ordinarily hold.” 10 He argues that the play’ s preoccupation w ith language becomes topical “ by insisting on the crucial importance o f naming and, more generally, by repeatedly calling attention to the force o f verbal actions.” 11 Here, he draws on Austin’ s theory o f speech acts, epitomized in the famous title phrase o f “ how to do things w ith words” . In doing so, however, he invites what Geoffey N. Leech calls the “ illocutionary fallacy” 12 the misunderstanding that the word is the thing, as it were, and that illocutionary verbs themselves constitute an action. W ith in this theoretical framework, insu ffi­ cient attention is paid to the material conditions and rituals o f social interaction. In fact, verbal actions in the sense o f illocutionary speech acts are not particularly

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successful in Romeo and Juliet. Mercutio performs his conjuring trick “ by Rosaline’s bright eyes” ( I I . l. 17) in vain, vows are discouraged - “ Dost thou love me? I know thou w ilt say ‘A y ’ , / And I w ill take thy word. Yet i f thou swear’ st / Thou mayst prove false” ( I I . l. 132-4) as far as the community is concerned, no marriage has taken place because it has not been publicized, Romeo chooses to ignore T yba lt’ s challenge, the threatened death sentence is not enforced, the ban­ ished Romeo stays the night and later comes back to town, Juliet does not obey her father’ s orders. Incidentally, the written word fares no better in that the list o f guests fo r the feast is given to one who cannot read it, and the fria r’ s letter returns to its sender. Characters’ deliberate verbal actions tend to miscarry precisely be­ cause words are not deeds. Romeo and Juliet, on the other hand, are radical in their conviction that the word bears no relation at all to its referent. Though Juliet can barely refrain from repeating her lover’ s name like a mantra, she insists: “ That which we call a rose / B y any other word would smell as sweet. I So Romeo would, were he not Romeo called, / Retain that dear perfection which he owes / W ithout that title” ( II.L 85-9). She even wants to believe that her refusal to call things by their names w ill make them go away: “ It was the nightingale, and not the lark, / That pierced the fear-full hollow o f thine e a r.... Yon light is not daylight; I know it, I ” (III.5. 2-3; 12). From their conviction that the relation between names and the natural world is arbitrary, the lovers dangerously extrapolate in the course o f the play an equal conviction that words have no value fo r social interaction. When Romeo is banished, their reaction is sim ilar; thus Juliet: “ That ‘banished’ , that one word ‘banished’ / Hath slain ten thousand Tybalts. ... to speak that word / Is father, mother, Tybalt, Ro­ meo, Juliet, / A ll slain, all dead” (111.2. 113-14; 122-4) and thus Romeo: “ Hence banished is banished from the world, / And w orld’ s exile is death. Then ‘banished’ / Is death mistermed. Calling death ‘banished’ / Thou cutt’ st my head o ff w ith a golden axe, / And sm il’ st upon the stroke that murders me” (III.3. 19-23). Romeo perceives the word “ banishment” as a euphemism for what should adequately be named “ death” . Friar Laurence tries to temper Romeo’ s g rief by stressing that it is the different effects o f the sentence o f death or banishment on the material body which sustain the meaning o f these words and make them intelligible: “ A gentler judgement vanished from [the prince’ s] lips: / N ot body’s death, but body’s ban­ ishment” ( III.3. 10-11), while the Nurse puts the same thought into proverbial form : “ Ah sir, ah sir, death’ s the end o f a ll” (III.3 . 91). Romeo finds that he cannot resignify words at w ill and he also cannot simply forget about the name which defines him as an individual human being w ithin his community, which makes him overstep the mark in the other direction, investing the name with material force and demonizing it as a deadly weapon: As i f that name Shot from the deadly level o f a gun Did murder her as that name’ s cursed hand Murdered her kinsman. O tell me, friar, tell me.

HOW TO DO THINGS W ITH WORDS

17

In what vile part o f this anatomy Doth my name lodge? Tell me, that I may sack The hateful mansion. (III.3. 102-7)

With the expression o f “ that name’ s cursed hand” he reduces him self to a word, a fiction dreamt up by others, denying his own agency. Juliet’ s thinking is similar; though she is aware o f the communicative value o f words - “ I f he be slain, say ‘A y ’ ; or i f not, ‘N o ’. / B rie f sounds determine o f my weal or woe” (III.2. 50-51) - , she increasingly subverts it through equivocation, as in telling her mother Indeed, I never shall be satisfied W ith Romeo till I behold him, dead, Is my poor heart so for a kinsman vexed. Madam, i f you could find out but a man To bear a poison, I would temper it That Romeo should, upon receipt thereof, Soon sleep in quiet. (III.5. 93-9)

From this “ chopped logic” (III.5. 149), as her father calls her verbal performance, it is only one step to downright lying, as when she tells him: “ Henceforward I am ever ruled by you” (IV .2. 22). Romeo and Juliet’ s refusal to acknowledge the “ proper” distance between the material world and its linguistic representation, as well as the communicative value o f speech, echoes, or is in fact created by, their refusal to distinguish between the self and the other: “ Romeo: It is my soul that calls upon my name” ( I I . l. 209). This is accompanied by images o f fragmentation and dissemination, the most famous being the follow ing: “ J u lie t: M y bounty is as boundless as the sea, / M y love as deep. The more I give to thee / The more I have, for both are infin ite ” (II. 1. 175-7). The lovers become fragmented in such a way that they seem to f ill the universe: Romeo: Two o f the fairest stars in all the heaven, Having some business, do entreat her eyes To twinkle in their spheres till they return. What i f her eyes were there, they in her head? The brightness o f her cheek would shame those stars As daylight doth a lamp; her eye in heaven Would through the airy region stream so bright That birds would sing and think it were not night. (II. 1. 57-64) Juliet: Come, gentle night; come, loving, black-browed night, Give me my Romeo, and when I 13 shall die Take him and cut him out in little stars. And he w ill make the face o f heaven so fine That all the world w ill be in love with night And pay no worship to the garish sun. (III.2. 20-25)

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Romeo and Juliet have become sceptics o f language on account o f their experiencethat there is no name fo r their feelings w ithin the community, and that love seems inim ical to linguistic representation anyway. The most important things in this love affair are understood to happen offstage, “ untalked o f and unseen” (III.2 . 7). The heights o f happiness and the depths o f despair - “ No words can that woe sound” ! (III.2 . 126) love its e lf simply cannot be expressed; not even the most dazzling’ hyperboles w ill do, since the currency o f language is devalued, its dimensions;! dwarfed, by the idea o f “ boundless bounty” . Thus, having lost faith in language, the lovers deliberately sever all ties with it and withdraw from the daytime w orld o f humanity, which accounts for the extreme fondness fo r night Greenblatt notes, into the ultimate darkness o f death. It is frequently observed in the play that language is too slow and ineffective to perform what is expected o f it. “ [LJightning ... does cease to be / Ere one can say it lightens” (II. 1. 161-2). As Juliet awaits the Nurse, she complains that “ Love’ s heralds should be thoughts, / W hich ten times faster glides than the sun’ s beams.... Had she affections and warm youthful blood / She would be as sw ift in motion as a ball, / M y words would bandy her to my sweet love, / And his to me” (II.4. 4-5; 1215). In a sim ilar vein, Benvolio reports the fight between M ercutio and Tybalt, along w ith Romeo’ s intervention: “ Romeo, he cries alound, / ‘ Hold, friends, friends, part!’ and sw ifter than his tongue / His agent arm beats down their fatal points” (III. 1. 159-60). Meaningful language must be endorsed by corresponding body practice, as when Romeo rebukes the Friar: “ Thou canst not speak o f that thou dost not feel” ( III.3. 64). The lovers themselves look and touch before they speak to each other fo r the first time, and touching and kissing is the topic o f their shared sonnet (1.5. 90-103). This physical and ritual dimension is epitomized in the definition o f marriage - “ close our hands w ith holy words” (11.5. 6) - which makes ' husband and w ife literally one flesh. In this respect, the consummation o f the mar­ riage before Romeo’ s departure fo r Mantua is crucial. Greenblatt’ s statement that their love is “ woven o f words” 14 is therefore only true w ith respect to the dramatic text, but neither on the level o f the story nor o f its theatrical performance. Yet words are p a rt o f the ritual, as is the context and the various dimensions o f social interaction which turn it into a communal event. Romeo and Ju lie t displays the disturbing gap between words and things, but it also shows how the lin k between language and the world is held in place by social interaction w ithin the community which confers identity on the individual. The play testifies, or even pays homage, to the tremendous power o f language while acknowledging at the same time that it is utterly powerless and arbitrary in itself, being invested w ith power by those who believe in it and make its meanings come true. What im p licit philosophy o f language can be extrapolated from this treatment o f 1 words and things? A difference, or distance, is seen to exist between sign and ref-.; erent, but it is not the poststructuralist differance. Rather, this distance is seen to i vary according to the use made o f language, the gap between words and things j being bridged by social agency aimed at successful communication. This is where 1

HOW TO DO THINGS W ITH WORDS

19

persuasion comes in, because - while contexts and circumstances o f utterances must be taken into account over and above the meanings o f individual words and phrases - successful communication ultim ately rests on persuasive speech. Hence llie concern o f English treatises on rhetoric o f the sixteenth century15 fo r effect which is largely produced through style, that is, “ ornamented” rather than “ plain” speech.16 In the ligh t o f what I have argued above, this should not come as a sur­ prise, since “ ornamented” speech has the greatest capacity to move the mind. A t die same time, it makes sense in this context that elocutio, the style o f expression, was seen to offer a flexible language fo r the negotiation o f meaning.17 Both the new Ramistic project o f determining truth logically, divorced from the process o f expressing it, and the seventeenth century emphasis on the scientific, analytic “ plain” style tend to reduce elocutio to “ mere” ornament. In contrast, humanism had always seen it as a heuristic dimension o f language and used it accordingly. Two o f the three classical types o f oration, the deliberative and the jud icia l, contain a heuristic dimension in their emphasis on the argumentum in utramque partem which is ultim ately an instrument to determine the truth o f a matter and thence to deduce the proper course o f action. In the period under consideration, language remains an instrument o f expression and negotiation rather than scientific analysis in that it allowed for the equal truth claims o f different perspectives.18 In this respect, it is credited with a suppleness that was arguably not reached again until the twentieth century. Therefore, thinking about the technicalities o f signification in the early modern period inevitably leads to the dimensions o f expression and communication. In contrast, the very notion o f ornament as accidental presupposes a truth determined prior to its expression and thus signals a change in the p hilo­ sophical thinking about language. Previously, language had existed in order to express the feelings and thoughts o f men - “ The toungue is ordeined to expresse the mynde, that one mighte vnderstande anothers meanyng” 19 - and to persuade others o f one’ s point o f view: “ Vtterance also and language is giuen by nature to man for perswasion o f others, and aide o f them selues,” Puttenham states, “ I meane the first abilite to speake. For speech it selfe is artificiall and made by man, and the more pleasing it is, the more it preuaileth to such purpose as it is intended for.” 20 To illustrate the persuasive power o f language, treatises on rhetoric invoke the • image o f the orator-civilizer. Again, the accounts o f Wilson and Peacham may serve as examples: When Pyrrhus Kynge o f the Epirotes made battayle agaynste the Romaynes, & could neither by force o f Armes, nor yet by anye Policye wynne certayne stronge holdes: he vsed communely to send one Cineas (a noble Oratour, and sometimes scholer to De­ mosthenes) to perswade with the Capitaynes & people that were in them, that they shoulde yelde vp the sayde holde or townes without fyght or resistaunce. And so it came to passe, that through the pithye eloquence o f this noble Oratoure, diuers stronge Castels and Fortresses were peaceablye geuen vp into the handes o f Pirrhus, whyche he shoulde haue founde verye harde and tedious to wynne by the sworde.21

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[A]lm ightie God the deepe sea o f wisedome, and bright sunne o f maiestie, hath opened? the mouth o f man, as the mouth o f a plentiful I fountaine, both to powre forth the inward ! passions o f his heart, and also as a heauenly planet to shew foorth, (by the shining! beames o f speech) the priuie thoughts and secret conceites o f his mind. By the benefit o f ! this excellent gift, (I meane o f apt speech giuen by nature, and guided by Art) wisedome J appeareth in her beautie, sheweth her maiestie, and exerciseth her powr, working in thej minde o f the hearer, partly by a pleasant proportion, & as it were by a sweet & musicall harmonie, and partly by the secret and mightie power o f perswasion after a most won- ' derfull manner.32

Language performs the social tasks o f expression, communication, and persuasion. Guidance fo r the latter is provided in the art o f rhetoric. W ithin its classical d ivi- J sion, a m p lifica tio is the area where meanings are negotiated.23 It is the process o f f elaborating on the chosen subject and enlarging favourable arguments and c irc u m -| stances in such a way as to make the best possible case. It must be remembered that all three basic types o f oration, the demonstrative or epideictic, the delibera-1 tive, and the ju d icia l or forensic, are partial and seek to win the audience’ s (the J judge’ s, the monarch’s) approval. Wayne Rebhorn’s account testifies to the desire | fo r power w ith which the art o f persuasion was invested: Renaissance rhetoric is animated by a fantasy o f power in which the orator, wielding words more deadly than swords, takes on the world and emerges victorious in every en­ counter. The orator is a conqueror, a ruler - even, in some treatises, something close to a | god. ... Although frequently equated with legitimate rulers, rhetors are at least as often social inferiors who w ill use the advantages o f their training in rhetoric to improve their ' lot while protecting themselves from attack by those on high. The fantasy o f imperial.-: power at the heart o f Renaissance rhetoric thus becomes a fantasy o f social mobility in | which the baseborn rise up and even come to dominate those above them in the social | hierarchy as well as those below.24

Rhetoric works w ith perspectives and value judgements, even w ith distortions and misrepresentations to achieve its ends. And it is here that slander comes into the picture, together with its accompanying opposite o f hyperbolic praise, or “ flat­ tery” . Whether the amplification necessary fo r a properly ornamented and persua­ sive speech develops into either flattery or slander is a matter o f degree, o f the speaker’ s intent and o f the audience’s disposition. As treatises on rhetoric and poetry insist, orations as well as poetry are calculated to teach, delight, and move. The last is crucial, and while it was always clear that there is neither delight nor p ro fit without movement, that is, the persuasive influence on the affections, special emphasis was placed on it in the early modern period. The audience w ill only be convinced o f an orator’ s cause i f partiality and emotional conviction coincide. Thus, some sort o f bias or agenda serves to enhance the persuasive force rather than dim inishing it. N ow English rhetoricians insist, in keeping w ith their classical ancestors, that this movement is ultimately ethical in that it leads to goodness. !

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[T]he beautie of Amplifiyng, standeth most in apte mouyng of affections ... Affections therefore (called Passions) are none other thyng, but a stirryng, or forcyng o f the mynde, either to desier, or elles to detest, and lothe any thyng, more vehemently then by nature we are commonly wonte to doe. ... There is no substaunce o f it self, that w il take fire, excepte ye put fire to it. Likewise no mannes nature is so apt, streight to be heated, ex­ cept the Orator himself, be on fire, and bryng his heate with hym. It is a common saiyng, nothyng kyndeleth soner then fire. And therefore a fierie stomack, causeth euermore a fierie tongue. And he that is heated with zeale and godlinesse, shall set other on fire with like affeccion. No one man can better enuiegh against vice, then he can do, whiche hateth vice with al his harte.25

To achieve this, however, the orator must not only be passionate but also wise eloquence w ithout wisdom is bad w hile wisdom w ithout eloquence is useless. The eloquence o f the v ir bonus is necessary to communicate wisdom. This is the com­ mon opinion, although Francis Bacon grumbles that the good effect o f wise elo­ quence w ill only persist as long as hearers are under the influence o f the speaker.26 W ilson’ s well-known definition o f elocutio may serve to illustrate the point: Elocucion getteth wordes to set furthe inuencion, & with suche beautie commendeth the matter, that reason semeth to bee clad in purple, walkyng afore, bothe bare and naked. ... Now an eloquent man beyng smally learned, can do muche more good in perswading, by shift o f wordes, and mete placyng o f matter: then a greate learned clerke shalbe able with great store o f leamyng, wantyng wordes to set furth his meanyng. Wherfore 1 muche maruaile that so many seke the only knowlege of thynges, without any mynd to commende or set furthe their entendement: seyng none can knowe either what thei are, or what thei haue, without the g ift o f vtterance.27

In the late sixteenth and early seventeenth centuries, an ever increasing empha­ sis was placed on the affective or psychological dimension o f speech, its propen­ sity to create ethos and pathos.28 The emotive effect was achieved through energeia, the “ enlivening” , dynamizing o f language through presenting vivid images to the m ind’ s eye.29 This was underlined by examples drawn from classical myth: figures, particularly poets, whose eloquence was said to be so powerful that they could accomplish great deeds, even to the point o f building cities, w inning wars and founding whole states by their words. Prominent among these were the myths o f Orpheus, Am phion and Hercules Gallicus. The latter’ s power o f speech is iconographically depicted by chains o f gold that reach from his mouth to the ears o f his listeners. Further metaphors and symbols for the persuasive force o f speech were the weapons o f rhetoric borne by the amazon-like allegorical figure o f Rhetorica as well as the enchantment effected by Am phion’s and Orpheus’s musical poetry.30 So as the Poets were also from the beginning the best perswaders and their eloquence the first Rethoricke o f the world. ... Now i f our presupposall be true, that the Poet is o f all other the most auncient Orator, as he that by good & pleasant perswasions first

22

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reduced the wilde and beastly people into publicke societies and ciuilitie o f life, insinu ating vnto them, vnder fictions with sweete and coloured speeches, many wholesom lessons and doctrines, then no doubt there is nothing so fltte for him, as to be furnishe with all the figures that be Rhetoricall, and such as do most beautifie language with eloquence & sententiousnes.31 The equally possible outcome, eloquence inciting to badness, had been a concern* o f rhetoricians since classical times. However, as skilful users o f a m p lifica tio iri their treatises and manuals, which are after all in a manner praises o f rhetoric^ English rhetoricians w riting in the vernacular evade the issue altogether or mention it only b riefly w ith some uneasiness. Negative eloquence plays rather a large ro l$ in other discourses, notably in fictional literature such as drama. The demonizatiori. o f Machiavellism, popularly misconstrued in early modern England as a theory o the wisdom and practice o f deception, could never have been so pervasive, had thisT anxiety not always accompanied eloquence which had been seen, time out o f mind, as an essential ingredient o f politics. Discussing ways to compose the conclusion to" a speech, W ilson admits: For suche arte maie bee vsed in this behalfe, that though the cause bee very euill, yet a> wittie manne maie gette the ouerhande, i f he bee cunning in his facultee.... Therefore as' iuste praise ariseth by this parte, so I doubte not, but the wittiest w ill take moste paine in this behalf, and the honest, for euer will vse the defence o f moste honest matters.1 Weapons maie bee abused for murder, and yet weapons are onely ordeined ftr saufgard.32 Peacham introduces a sim ilar caution: For by Fygures, as it were by sundry streames, that great & forcible floud o f Eloquence,’ is most plentifully and pleasantly poured forth by the great might of Figures which is no other thing then (wisdom speaking eloquently) the Oratour may leade his hearers which way he list, and draw them to what affection he will: he may make them to be angry, toi.‘ be pleased, to laugh, to weepe, and lament: to loue, to abhorre, and loath: to hope, to; feare, to couet, to be satisfyed, to enuye, to liaue pittye and compassion: to meruaile,' to beleeue, to repent: and briefely to be moued with any affection that shall serue best for his purpose. ... [F]or Iooke what the sword may do in war, this vertue may performe in peace, yet with great difference, for that with violence, this with perswasion, that with > shedding o f blood, this with pearcing the affections, that with desire o f death, this with ' special! regard o f life.” When this uncanny side o f eloquence is mentioned at all, it is soon dismissed by an appeal to ethical standards which are assumed to be clear and unequivocal.34 W ithin the English context, it is the subversive Puttenham, the teacher o f courtly poets, who emphasizes the possibility o f deception, which he sees as inherent i # any kind o f translated speech. Keeping in mind that he had not restricted figurative speech to oratory and poetry but that in his opinion it is a necessary feature o f natu-, ral speech, Puttenham’ s view o f language emerges as rather sinister. N ot only can,

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human beings abuse speech by expressing something other than their innermost thoughts, but the medium o f language itself does not allow for a completely faithful expression. And ye shall know that we may dissemble, I meane speake otherwise then we thinke, in earnest as well as in sport vnder couert and darke termes, and in learned and apparant speaches, in short sentences, and by long ambage and circumstance o f wordes, and fi­ nally aswell when we lye as when we tell truth. To be short euery speach wrested from his owne naturall signification to another not altogether so naturall is a kind of dissimulation, because the wordes beare contrary countenance to th’ intent.35

figures o f speech are no innocent ornaments, according to Puttenham, but also “ abuses or rather trespasses in speech” , because they extend normal language to create “ a certaine doublenesse” . Metaphors and allegories become figures o f dis­ simulation and obscurity. Equally, irony, sarcasm and hyperbole are enumerated as modes o f speaking which divorce thoughts from words with an intention to “ inueigle and appassionate the mind.” 36 Thus, figurative language, the basis o f the poets’ art, is revealed as deeply flawed. [Tjhe Poets being in deede the trumpetters o f all praise and also of slaunder (not slaunder. but well deserued reproch) were in conscience & credit bound next after the diuine praises o f the immortal gods, to yeeld a like ratable honour to all such amongst men, as most resembled the gods by excellencie o f function.37

Puttenham uses the figure o f M etanoia38 when he describes the poets’ role o f dis­ tributing praise and blame. His introduction o f the word slander, “ penitently” corrected and replaced by an ostensibly more suitable word, but nevertheless allowed to stand, suggests partiality, so that blame becomes detraction w hile praise may well become flattery. W ithout stating it openly, he aquaints poets with their power to shape reality through an epideictic discourse o f flattery and slander. Given the importance o f panegyrics and o f love lyric fo r the courtly poets Puttenham prim arily addresses, this is no trifle. Nor is the concern with slander restricted to modes o f speaking enumerated above, like irony or sarcasm, and to the figure o f M etanoia, but there are other figures based on the difference between thought and utterance, or res and verba, which can be seen as linguistic devices o f slandering. In The Garden o f Eloquence, Peacham gives a long list o f tropes and figures among which he lists those suscep­ tible to slander. In this context, some significant differences between the 1577 and 1593 editions o f his work should be noted. The earlier edition lists tropes and figures quite unselfconsciously whereas the later edition appears more structured and modern. It is paginated, it includes an index and printed marginalia, it quotes more authorities, and the description o f each figure is followed by a section on “ the use o f this figure” as well as a “ caution” . The development could be summarized as a move from description to prescription, because the later edition introduces a

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moral dimension. Behind this seems to be an awareness o f the bad faith o f rhetoric.: Some figures, notably Tapinosis, Bom phiologia and Paradiastole, which appeared as figures among others in the earlier edition, are only mentioned in the later edition as “ vices o f speech” within the “ caution” section. In addition, the contem-j porary awareness and fear o f slander finds its way into the subtext o f Peacham’ s treatise: the “ malicious tongue” appears as an example o f metaphor, translations o f the elements lead him to the epigram that “ an euill name is the smoke o f sinne” ,: and under “ proverbs” , he notes “ A ll are not thdeues that dogges barke at: declaring that ill tongues do as well slander good men, as speake truth o f the euil.” 3^ Paralepsis is used where “ the Orator faineth and maketh as though he would say: nothing in some matter, when notwithstanding he speaketh most o f all.” 40 It is therefore potentially slanderous and “ most abused by malice, as when it is applied in false accusation, or in malicious detraction, and sometime also by subtiltie in a counterfeit praise, and figured flattery.” 41 Figures o f comparison are prominent among those that may be used for slander: A iaesis is a forme o f speech by which the Orator amplifieth by putting greatter word for.' a lesse, as to call a proude man Lucifer, a dronkard a swine, an angrie man mad, a couetous man a cutthroat[.] ... Meiosis contrary to Auxesis when a lesse word is put for a greater, to make the thing appeare lesse then it is, or verie litle, as to call a learned Doctor a prettie schollerf.]42 :

In his “ caution” , Peacham warns that the speaker fall not into that fault o f speech, which is vsually called Tapinosis, that is when the dignitie or maiestie o f a high matter is much defaced by the basenesse o f a word, as to call the Ocean a streame, or the Thames a brookef.]... To this opposed Bom-\ phiologia, which giueth high titles to base persons, and great praises to small deserts. There is another faultie tearme o f speech, called Paradiastole, which in this place may well be mentioned, for that it also opposeth the truth by false tearmes, and wrong names, as in calling dronkennesse good fellowship, insatiable auarice good husbandrie, craft and deceit wisedome and pollicie.J3

Indeed, these three “ faults o f speech” can be used as technical vehicles fo r slan­ der, flattery and dissimulation. Quentin Skinner, in an essay on the figure o f p ara ­ diastole as a source o f moral ambiguity, sees this technique o f redescription not just as a type o f amplification, but as a way o f “ challenging and replacing des-; criptions instead o f attempting to enhance them.” 44 The goal is “ to replace the descriptions offered by our adversaries w ith a set o f terms that picture the action no less plausibly, but serve at the same time to place it in a contrasting moral light.” 45 This becomes possible because virtues and vices are no clear-cut opposites, but; rather neighbours (vicinae). In fact, “ the use o f rhetorical redescription brings out in the most alarming way the equivocal relationship between eloquence and' truth.” 46 Although rhetoricians make it sound for the most part as i f one o f the* words language offers was the proper one to describe any given concept and the!

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task was just to find it, they seem to be aware o f what later philosophers spell out, namely that all definitions are subject to negotiation, i f not struggle. Slander emerges as an evil attendant on the art o f rhetoric, inevitable because o f the nature o f language as its material basis. It insinuates itself into the gap between words and things which enables the fle x ib ility o f translated speech w ith its cor­ responding tropes and figures, it exploits the possibility to divorce thinking and speaking, and it makes use o f the performative dimension (p ro n u n tia tio , a ctio) o f rhetoric, which is to move and persuade listeners to accept a certain account o f reality. Slander is the shadow o f language.

r CHAPTER TWO

The Rhetoric o f Slander

They do say, Mrs M, that verbal insults hurt more than physical pain. They are, o f course, wrong as you w ill soon discover when I stick this toasting fork in your head. Richard Curtis/Rowan Atkinson, Blcickadder

In the previous chapter, I approached the topic o f slander through an analysis o f early modem notions o f the referentiality o f language and its connection to the power o f eloquence. It has become clear that, until the early seventeenth century, the discussion o f language cannot be divorced from its expressive and communi­ cative functions and its ethical value for the community. The present chapter w ill therefore focus on slander as a type o f communication. I w ill first trace slander as a species o f deviant speech to the medieval religious discourse on the “ sins o f the tongue” . In this context, the harm done by slander, the w ill to injure others with verbal signs, is the crucial point. I w ill then read Shakespeare’s O thello as an “ anatomy o f persuasion” which both stresses and questions the power o f slander. Ultimately, I w ill argue, poetic inquiry displays the faultlines in a type o f commu­ nication that seems inevitably destructive, wich is mainly done by exploring the relationship between verbal and physical injury. The first chapter suggested that eloquence was considered precarious in the early modem period, which is substan­ tiated by my reading o f Shakespeare’s tragedy. In order to free eloquence from anxiety, “ good” eloquence was distinguished from “ bad” through a process o f gendering, which I w ill demonstrate at the close o f this chapter, drawing on a collection o f exemplary legal cases called The O rator. In the Middle Ages, the discussion o f deviant speech had taken place in a religious and pastoral context in which varieties o f deviant speech were gathered under the rubric “ sins o f the tongue” . In the early modern period, the discourse on deviant speech becomes partly secularized, but it still centres on practices o f interaction typical o f the small-scale community or the congregation. Edwin Craun empha­ sizes this in his fascinating book on the social uses o f pastoral genres and their literary representations, Lies, Slander, and Obscenity in M edieval English L ite ra ­ tu re :

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To explore the ethical dimensions o f speech in medieval texts, it is necessary for us to attend to the relations between interlocutors, relations eclipsed by the structuralist pro­ gram o f language as a self-contained system o f difference and, before that, the Enlightenment preoccupation with referentiality, the relations o f signs, things, and minds.1

Craun argues that the discourse on sin as it emerged in the clerical hierarchy in the 13th century was instrumental in shaping communal life - it defined what counted as deviant and developed strategies for the detection and correction o f such devi­ ance.2 Prominent among the forms o f deviant behaviour is a surprising number o f sins o f the tongue, obvious ones like cursing and lying, but also slandering as well as more obscure expressions o f discontent like murmuring, the two latter ones being classed under the deadly sin o f envy.3 The early modern concern with slan­ der and lying appears to be the tip o f the iceberg, as it were, the discourse o f slander emerging from the general debate about deviant speech and the religious concern with sins o f the tongue. The specific relational nature o f slander, however, seems to have fitted the competitive atmosphere o f Elizabethan and Jacobean England particularly well. Craun also notes the intrinsic connection between lin­ guistic theory and social interaction outlined in the previous chapter. He shows the discussion o f the sins o f the tongue to be based on Augustinian semiotics which he regards as more comprehensive than structuralist approaches: Augustinian semiotics can sustain this pastoral metalanguage because it is more capa­ cious than modern structuralism. Like a Ferdinand de Saussure, Augustine constructs a sem iologie: he integrates words into a general sign theory embracing “ tous Ies objects de 1’univers,” defines the sign as both signifier and signified, distinguishes between the sig­ nified and the referent, and explains the differences between natural and conventional signs. Yet even in these matters, Augustine prefers to conceive o f linguistic signs not so much in terms o f how they refer to “ un segment du monde” (a “ relation de designation” ) but o f how they establish a “ relation entre deux interlocuteurs.” Given this social and functional approach, his theory o f verbal signs also includes the social genesis o f speech, the role o f words in cognition, and the w ill and intent o f speakers.4

In this theory, the intention to create meaning distinguishes conventional from natural signs. Also, “ [sjpeech is inherently ethical because it always involves the w ill to communicate something to someone” .s If, then, words are the “ messengers o f reason” , it follows that it is a grave offence to abuse them. The ethical dimen­ sion o f Renaissance treatises on rhetoric, in part derived from a classical idea o f goodness imported from Greece and Rome, must be seen, for all the innovations introduced by thinkers o f the Renaissance, in the context o f a residual discourse o f medieval Christianity buttressed by the church as a powerful institution and extending its influence not only to grammar school boys or university students, but to the entire population. From this perspective, the suspicious attitude towards speech noted above makes even more sense, since in the religious context, the ideal type o f speech is sacred speech, mirroring the word o f God, which allows for no

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gap between intention and expression and which must be guarded horn profanation - every deviant word is another Fall. “ It is the w ill to abuse verbal signs and the intended effect - ... to deceive others with signs - which fundamentally make speech deviant for the pastoral compilers, as for Augustine as both a theorist o f signs and a religious teacher using signs.” 6 Thus, it becomes possible to see the influence o f Augustine’s sign theory in the treatises on rhetoric discussed above, and, i f it were needed, to find some further explanation for the ambivalence to­ wards eloquence - an ambivalence expressed in the preeminently positive value accorded to it in classical rhetoric and its considerable qualification within the Christian tradition. Like Craun, I am reluctant to apply modern linguistics to early modern texts, especially i f self-referentiality becomes the telos o f analysis. Still, I think it useful to draw on speech act theory for the analysis o f slander as communication in bad faith, because speech act theory combines technical aspects with ethics in its in­ vestigation o f communication. This makes speech act theory compatible with Craun’ s account o f the Augustinian theory o f language. The philosophers J.L. Austin and John R. Searle famously pioneered the field in the 1960s. Geoffrey N. Leech subsequently reintroduced and developed older pragmatic concepts, includ­ ing H.P. Grice’s “ Cooperative Principle” ,7 which he proposes to supplement with a “ Politeness Principle” .8 In his outline o f an “ interpersonal rhetoric” , Leech demon­ strates that the communicative principle which Grice suggests is often violated for reasons o f politeness and that a (non-finite) number o f lower-order principles can be added, like irony and banter, for instance, as well as the tendency to use the figures o f hyperbole and litotes. Leech’ s “ Politeness Principle” includes the Tact M axim , the G enerosity M axim (minimize benefit to self; maximize cost to self), the A pprobation M axim (minimize dispraise o f other; maximize praise o f other), and the M odesty M axim (minimize praise o f self; maximize dispraise o f self); others may be the Maxims o f Agreement and Sympathy.9 Leech’s “ interpersonal rhetoric” offers a framework for the analysis o f the hermeneutics and psychology o f verbal interaction which is most useful for an inquiry into slanderous speech. In order to adequately understand the significance and specificity o f the w ill to injure others with verbal signs, it is important, as speech act theory tends to do, to see linguistic referentiality and social interaction as compatible categories which must be dis­ cussed on the same level. I w ill proceed to do this in a reading o f Shakespeare’s O thello , a tragedy which stages an incisive inquiiy into verbal injury as well as an “ anatomy o f persuasion” focused on slander.10 The relationship between language and action as it is depicted in O thello is clearly situated in the context o f power relations. I w ill distinguish between three levels o f power in the play, first the direct, overt domination exercised both by authority and through physical violence, second indirect ways o f persuasion ac­ complished through rhetoric, body language, and emotional or relational involvement; and third, secret ways o f manipulation working on the body (poison), or associated with the supernatural (witchcraft) applied entirely without knowledge

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or compliance on the part o f the victim. The first level, domination, is based on hierarchy and order and therefore, according to early modern thinking, on reason, while the second level, persuasion, works through the affections. The third effects an imaginative mediation between them, since the forms o f secret manipulation may be seen as metaphors o f persuasion; they are textualizations, visualizations, even rationalizations o f passion. To focus on slander is to conceptualize the nega­ tive potential o f the mechanisms o f persuasion. Importantly, as I have argued above, slander is persuasion rather than manipulation because it must be believed to develop its harmful power. To foster belief, the slanderer employs a rhetorical strategy suggesting an intrinsic, functional relation between language, materiality and agency expressed in the two most powerful metaphors for slander - poison and witchcraft. In O thello, institutionalized and hierarchical power is represented by the Duke and the Venetian senate, by military ranks and by emphasis on differences in eth­ nicity and class. Also, the patriarchal structure o f society submits daughters and wives to the power o f their fathers and husbands. However, this type o f authority or domination, the social right and power to make people do as they are told, is immediately corroded in the play. The crisis o f hierarchies is focused on character and proceeds from a less formalized power o f influence, which is exercised both strategically and emotionally. For example, Desdemona’s and Othello’s power over each other is based on their love and desire, while Iago’s power rests on his ability to dissemble and persuade. The overthrow o f order is expressed by the exer­ cise o f physical violence. Institutionalized means o f physical coercion - war, torture, and punishment - are not part o f the spectacle on stage; they are relegated to narration and defined as the rightful exercise o f force or even made unnecessary by events working after the manner o f an ordeal: Othello is commanded to fight the Turkish fleet, but nature, or God, in the shape o f a violent storm conveniently dis­ poses o f the Turkish threat. Thus, Othello’ s prowess as a warrior is communicated exclusively through the tales with which he woos Desdemona, narrations o f the grim “ story o f his life” couched in attractive blank verse somewhat at odds with its contents: “ I spoke o f most disastrous chances, / O f moving accidents by flood and field, / O f hair-breadth scapes i ’th’ imminent deadly breach, / O f being taken by the insolent foe / And sold to slavery” (1.3. 133-7). Equally, Iago’s punishment is postponed until after the play. “ Lodovico : ... I f there be any cunning cruelty / That can torment him much and hold him long, / It shall be his. ... To you, Lord Governor, / Remains the censure o f this hellish villain. / The time, the place, the torture, O, enforce it!” (V.2. 342-4; 377-9). In contrast to this, illegitimate physical violence like brawls, duels and murder are played out on stage. Roderigo provokes the drunken Cassio during the watch and later tries to k ill him at Iago’s instigation; Iago attacks Cassio with a knife; Othello hits Desdemona and throttles her; Iago stabs Roderigo and kills Emilia; Othello wounds Iago and stabs himself. Violence figures illegitimate domination, which is why, apart from Othello’s suicide, mainly the blood o f the innocent is spilt. This suicide is the only moment where the narrative o f physical violence and

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its performance on stage actually converge: “ [I]n Aleppo once, / Where a malig­ nant and a turbaned Turk / Beat a Venetian and traduced the state, / 1 took by th’ throat the circumcised dog / And smote him thus. — He stabs h im se lf ’ (V.2. 3615). Lodovico and Gratiano’s exclamations - “ O bloody period! // A ll that’s spoke is marred” (V.2. 366-7) - oscillate between the linguistic and the physical as they draw attention to the fact that the violence o f Othello’s sinful self-destruction is illegitimate, although he resignifies it as the narrative o f the lawful defence o f Venice against the infidels. Thus, the potential violence o f law enforcement is categorially different, not dramatized but imagined as rightful force while trans­ gressive violence is both depicted and “ redescribed” . A typical instance o f this is the euphemistic poeticization o f Desdemona’s murder as “ putting out thy light” oder “ pluckfing] thy rose” (V.2. 10/13) followed by the deceptive sweetness o f Othello’ s chiastic connection o f kissing and killing in his dying words: “ I kissed thee ere I killed thee. No way but this: / K illin g myself, to die upon a kiss” (V.2. 368-9). To explain this structural divorce o f verba! and visual violence by the genre conventions o f domestic tragedy would surely be disingenious. Rather, the fact that words and things are at odds figures the illegitimacy and duplicity which pervades the play from the start and which prepares the ground for the triumph o f slanderous persuasion over goodness and reason. Helped by the illegitimacy o f Othello and Desdemona’s conduct and through his own duplicity, Iago makes use o f the gap between signs and referents, prising them ever further apart. The tragedy begins with an illocutionary speech act, the clandestine marriage o f Othello and Desdemona. This illegitimate but valid speech act is “ ob-scene” in both senses o f the word, quite literally because it is understood to have happened offstage (in keeping, incidentally, with Shakespeare’s practice not to dramatize sacraments) and on a more abstract level because the match is considered incongruous in terms o f age and ethnicity by all but the two lovers. This beginning already forges the link between duplicity, illegitimacy and indirectness which prepares the ground for slander. In place o f a wedding, the audience is pre­ sented with an enigma: “ R oderigo : Tush, never tell me! I take it much unkindly / That thou, Iago,... shouldst know o f this. / Iago: ’ Sblood, but you’ ll not hear me! I f ever I did dream / O f such a matter, abhor me” (1.1. 1-5). The referents o f “ this” and “ such a matter” are revealed only in the second scene. Shakespeare places a very special case o f linguistic agency at the beginning o f the subsequent fatal chain o f events: an illegitimate but valid illocutionary speech act. First mentioned as an enigmatic occurrence, a blank surrounded by others’ words, this speech act is then gradually transformed into a communal event. Thus, while words and things are at odds, as I have outlined above, Shakespeare manages to blur the distinction be­ tween words and deeds, suggesting a functional, predictable, even material con­ nection between words and their social effects, which is a fantasy, as Leech makes clear in his “ interpersonal rhetoric” and his emphasis on the illocutionary verb fallacy.

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The double strategy o f belittling the referentiality o f language and exaggerating its social and psychological force establishes Iago as the master o f an intrinsically slanderous discourse. He has the w ill to injure others with verbal signs, and he is successful because he knows how to manipulate the link between referentiality and interaction. Words lose their value and meaning because the conventions o f com­ munication are constantly (ab)used to trespass against what Grice calls the “ coop­ erative principle” .11 Iago’ s speech seems ambiguous when it is in fact all too plain: from the point o f view o f grammar, it largely consists o f imperatives, performa­ tives and repetitions. This “ general illocutionary force o f exhortation” 12 serves to transform his words into others’ deeds, making him “ the helpful plainspeaker who turns out to be a killer by remote control” .13 Iago’s performance shows how slander works as a discursive practice whose prominent feature is the indirect nature o f accusations and “ close dilations” which are persuasive precisely because the hearers are deluded as to the speaker’s purpose. He gets away with his imperatives as well as with his elusive and enigmatic speeches because in both instances his interlocutors believe him to follow the “ politeness principle” . He pretends to be plain and assertive out o f the disinterested wish to promote the cause o f those who listen to him, or enigmatic when he wants the other to believe that he is holding back information out o f mercy and consideration. Though Iago’ s expressions are quite drastic at times, he avoids direct quarrels. When Brabantio insults him “ Thou art a villain” - he counters with “ You are a senator” (1.1. 119). Brabantio’s furious reaction makes clear that the manner, the context and the addressee o f an utterance are at least as important as the actual words spoken. The first o f the metaphors to suggest the inescapable, material nature o f Iago’s words is poison, dramatized in Othello’s increasing sickness and epileptic fits: “ Work on; my medicine works” (IV . 1. 42) lago rejoices, watching the entranced Othello. Brabantio’ s “ But words are words. I never yet did hear / That the bruised heart was piercdd through the ear” (1.3. 217-18) seems disingenious at best. Significantly, Othello himself describes the effect o f Iago’ s words in physical terms: “ Avaunt, be gone. Thou hast set me on the rack” (III.3. 340). In one o f his more lucid moments, he even parallels the practice o f slander with physical torture: “ I f thou dost slander her and to rture me, / Never pray more; abandon all remorse, / On horror’s head horrors accumulate, / Do deeds to make heaven weep, all earth amazed, / For nothing canst thou to damnation add / Greater than that” (III.3. 3738, italics mine). Othello follows lago’s lead in casting the potentially slanderous allegations which damage his and his w ife’s honour as a direct injury to the physi­ cal person. He and Desdemona could be said to die, along with various other Shakespearean characters like Richard II, because they love language “ not wisely but too well” . Iago has a less passionate relationship with language, so that he can deny its inevitably destructive force. When Cassio laments: “ Reputation, reputa­ tion, reputation - O, I ha’ lost my reputation, I ha’ lost the immortal part o f myself, and what remains is bestial!” he answers:

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33

As I am an honest man I thought you had received some bodily wound. There is more o f sense in that than in reputation. Reputation is an idle and most false imposition, oft got without merit and lost without deserving. You have lost no reputation at all unless you repute yourself such a loser. (II.3. 246-53)

To Othello, whom he wants to “ repute himself such a loser” , he addresses a speech to the contrary, which, for the benefit of the linguistic connaisseur Othello, is couched in verse, with a touch o f the proverbial: Good name in man and woman, dear my lord, Is the immediate jewel o f their souls. Who steals my purse steals trash; ’tis something, nothing; ’Twas mine, ’tis his, and has been slave to thousands. But he that filches from me my good name Robs me o f that which not enriches him And makes me poor indeed. (III.3. 160-66)

Iago chooses his comparisons according to the intended effect. He equates slander to physical injury when he wants to belittle it, to material goods when he wants its consequences to loom large in Othello’s mind. Both comparisons are topical in the contemporary discourse on slander, but the treatment o f the subject in O thello ultimately hinges on the analogy with physical injury. The many wounds inflicted in the course o f the play invite the audience to assess the meaning o f deeds and words primarily according to their effects on the body. This is enhanced by a recip­ rocal influence o f physis on meaning, to be discerned in the abundance o f material and bodily signs that have to be read in the course of the play as well as in the furious workings of the humours, epitomized in the dual signification o f “ matter” . The choleric temperament, the overabundance o f yellow bile, makes itself felt in envy and jealousy. Temperament colours thinking and casts the body as the source o f meaning transferred by words. In Othello’s world, language and the body are completely intertwined.14 In keeping with this disposition, Othello himself expresses his expansive per­ sonality in verbal copia\ he revels in the beauty and richness o f language and thus manages to woo Desdemona and convince the nobles o f Venice o f his worth and valour. Along these lines, O thello can be read as a rhetorical contest of “ plainspeaker” vs. “ sweettalker” .15 In fact, Othello’s rhetoric is so persuasive that he is suspected o f having bewitched Desdemona. This is in keeping with the mythical, sexualized topos of the orator’ s power to lure and even ravish the defenceless lis­ tener. The subtext o f witchcraft persists in the m otif o f the famous handkerchief, credited with magical power as well as in Iago’ s association with the devil. His slander has a connotation of black magic which is in turn given a material basis through poisoning, the other striking metaphor for slander. Consequently, as Othello gradually succumbs to Iago’ s influence, or spell, he becomes more and more physically sick, caught in the vicious circle o f matter and meaning. The

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difference between deeds and words is denied because o f their apparently similar effects on the body. This works particularly well because Iago and Othello share both the predominant humour and the rhetorical skill. The chiastic construction o f magic - white magic associated with the black Othello and black magic practiced by the white Iago - links both characters on a structural level. As the imagery o f magic elevates the paradoxical power o f language to the realm o f the supernatural, the capacity o f language to signify is enhanced by its investment in ritual, guaran­ teed and made meaningful by the logocentric belief in a metaphysical power. Shakespeare uses the imagery o f witchcraft and poison to persuade the audience o f the persuasive power o f lago’s slander. He wills spectators to suspend their disbe­ lie f and to follow the deterministic pull o f tragedy. A t the same time, however, he does not allow them to forget completely how often it happens that “ words and performances are no kin together” (IV.2. 186-7). While referentiality and interaction determine each other, as I have argued above, they contain two different sets o f relations: the linguistic connection be­ tween word and thing as well as the social or performative connection between speech and action. Both connections, as relations, are fundamentally differential and therefore open to negotiation - where there is difference, there is movement and life. In O thello, however, the slanderous, paranoid blending o f different spheres o f action and signification blurs all distinctions; the actual coincidence o f illocutionary speech act, or performative, and action tends to produce stasis and is associated with death, both social and physical. The convergence o f Othello’s sui­ cide with his account o f killing a Turk is the most striking, but by no means the only example in the final act. lago’s announcement “ From this time forth I never w ill speak word.” (V.2. 310) is the last that is ever heard o f him. The convergence is particularly clear in Em ilia’s dying words: “ So come my soul to bliss as I speak true. / So, speaking as I think, alas, I die. — She dies” (V.2. 257-8). Gayle Greene comments on this: “ [Em ilia’ s] language represents a linguistic ideal o f correspon­ dence o f ‘ discourse’, ‘thought’ , and ‘deed’ .” 16 The effect o f these lines is further enhanced by the mostly monosyllabic, simple words which Shakespeare likes to use to express “ truth” or “ immediacy” . The tragedy ends with a further correspon­ dence formulated in the closing couplet “ M yself w ill straight aboard, and to the state / This heavy act with heavy heart relate” (V.2. 380-81). Thoughts, feelings, deeds and their verbal expression, which had been at variance throughout the play, are folded into one. In this tragic vision, it seems as i f misunderstandings, treachery and slanderous communication, discord rather than difference, were the basis o f life, and harmony could only be achieved in death. Consequently, “ moral good­ ness” appears as anti-theatrical, while the divorce o f thoughts, words and actions, which is the essence o f slander as a discursive practice, seems deeply theatrical - a bleak prospect i f all the world’ s a stage. Body language is by no means exempt from this corruption. When Iago wants to undermine Othello’s security, he allows his body language and his words to diverge:

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35

O th ello . ... thou cried’ st “ Indeed?” And didst contract and purse thy brow together As i f thou then hadst shut up in thy brain Some horrible conceit. If thou dost love me, Show me thy thought. Iago. My lord, you know I love you. O thello. 1 think thou dost. And for I know thou’rt full o f love and honesty, And weigh’st thy words before thou giv’ st them breath. Therefore these stops o f thine fright me the more; For such things in a false disloyal knave Are tricks o f custom, but in a man that’ s just They’re close dilations, working from the heart That passion cannot rule. (III.3. 116-29)

As a rule, bodily signs are considered to be more authentic than speech, but it becomes clear that without an adequate context and without the advantage o f hind­ sight, there is no way to distinguish between “ tricks of custom” and “ close dila­ tions” since, as signs to be interpreted, they stand in a relation o f paradiastole ,17 Even i f an attempt were made to class bodily signs as “ ocular p ro o f’, nothing is gained, considering lago’ s fabrication of evidence. For Patricia Parker, the term “ close dilations” epitomizes the concerns o f O thello. In the semantic field o f “ delate” /“ dilate” , the spectrum of meanings reaches from “ open” and “ widen” to “ broaden” and “ accuse” . [Ejxotic (or “ barbarous” ) worlds formerly beyond the reach o f European eyes, the ana­ tomical opening o f a secret female place, the nascent apparatus o f judicial discovery, and the world o f the delator and spy - is to approach the simultaneously sexual, judicial, and epistemological impulses o f opening, dilating, and discovering to the view that combine so powerfully in this play.18

Shakespeare dramatizes an anatomy o f persuasion which is particularly com­ plex because, in focusing on the slander o f a woman, he brings together these sex­ ual, judicial and epistemological impulses. Increase o f knowledge always entails a proportionally greater possibility o f abuse.19 Kenneth Gross suggests that in O thello, the “ repudiation of language” takes the form o f a language o f repudiation, a slanderous language in which all objects get pushed away, reduced, or marred; it is a language that insofar as it holds out to us some sense o f ourselves and other minds tends to constmct these as spaces o f solitude, alienation, suspicion, or terror.20

Yet the question remains: does slander inevitably extinguish the other or is it re­ versible? An insult is negotiable - “ You are a senator!” and even a “ bewhored” woman may have her reputation cleared again. The negative effects o f slander vary with the skill o f the slanderer, the context o f the accusations, the willingness o f the

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listener(s) and the vulnerability o f the victim. Othello’s euphemistic metaphor, however, points to the categorial difference and irreversibility o f physical injury: “ when I have plucked thy rose / 1 cannot give it vital growth again, / It needs must wither” (V.2. 13-15).21 In this context it makes sense to see slander as the play’s deliberative issue, employing the argamentum in utram que partem in order to fathom the power o f detraction. On the one hand, Shakespeare makes a persuasive case for the deadly power o f slander. Here, it emerges as a manipulation o f the body akin to witchcraft or poisoning; that is, it literally is physical violence. On the other hand, he shows that the power o f slander rests on persuasion. In the case o f O thello, the communication happens to be successful from the slanderer’s point o f view, at least initially, while it is unsuccessful, to say the least, for listener and victim. Still, in contrast to actual physical violence, slander as an instance o f rhe­ torical persuasion is susceptible to redescription or to communicative failure. According to this second view, the nature o f slander is ultimately psychosomatic; i f listener(s), and eventually the victim(s), believe it to be a deadly poison, that is what it becomes. In her book E xcitable Speech, Judith Butler addresses the question o f linguistic injury. She is mostly concerned with direct insult, but her findings are equally applicable to slander once it becomes a public event. The formulations used to describe hate speech suggest that linguistic injury acts like physical injury, but the use o f the simile suggests that this is, after all, a comparison o f unlike things. ... Indeed, it appears that there is no language specific to the problem o f linguistic injury, which is, as it were, forced to draw its vocabulary from physical injury. In this sense, it appears that the metaphorical con­ nection between physical and linguistic vulnerability is essential to the description o f linguistic vulnerability its e lf.... [T]here is a strong sense in which the body is alternately sustained and threatened through modes o f address.22

W ithin the framework o f a philosophical argument, Butler formulates a critique rather similar to what Leech calls the “ performative and illocutionary verbfallacies” based on a developed version o f Austin’s account o f speech as action.23 Butler takes up Austin’ s distinction between illocutionary speech acts as actual deeds performed with words within a conventional context and the less determined perlocutionary speech acts as things done with words whose efficacy must be judged by their consequences. She argues that since the context o f performatives and illocutionary speech acts can never be completely determined and foreclosed, and more is always communicated than is intended, there must always be a gap be­ tween speech and action: “ The performative performs in ways that no convention fully governs, and which no conscious intention can fully determine. This uncon­ scious dimension o f every act surfaces in Austin’s text as the tragi-comedy o f performative misfire.” 24 I f this difference expressed by the possibility o f infelicity is disregarded, that is i f the performative is equated with the action, it becomes an instance o f sovereign power.

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37

I read the figure o f sovereignty as it emerges within the contemporary discourse on the performative in terms o f the Foucaultian view that contemporary power is no longer sovereign in character. Does the figure o f the sovereign performative compensate for a lost sense o f power, and how might that loss become the condition for a revised sense o f the performative? ... We might regard the overdetermination o f the performative as the “ linguistification” o f the political field (one for which discourse theory is hardly respon­ sible, but which it might be said to “ register” in some important ways).25

Butler argues that repetition in the sense o f citational reversal and recontextualization offers the possibility o f counteracting the injurious power o f speech. Literature may be such a context. An aesthetic reenactment, as Butler suggests, quite in accordance with my notion o f equitable drama, performs a double function in that it “ uses” a word but at the same time “ displays” , or interrogates it: In this sense, the word as a material signifier is foregrounded as semantically empty in itself, but as that empty moment in language that can become the site o f semantically compounded legacy and effect. This is not to say that the word loses its power to injure, but that we are given the word in such a way that we can begin to ask: how does a word become the site for the power to injure?26

This is precisely the question O thello asks. The audience is invited to witness a worst-case scenario, to follow the minute mechanisms o f how the word “ whore” , or the invocation o f the concept, results in “ the tragic loading o f this bed” (V.2. 373), the story o f the deaths o f at least four human beings. The element o f display central to poetic inquiry ultimately contradicts the inescapability o f slander. In early modern England, the stakes were mostly not as high as O thello suggests, but the frequent playing out o f slander plots in the theatre shows defamation to be an important public issue. Also, such public display ran parallel to a legal debate about slander.27 In this debate, attempts are made to rhetorically equate slander as a verbal injury with physical injury. We have seen that this equation is by no means unavoidable, nor is it necessarily salutary for the victim o f defamation. As Butler states, the legal domain o f the state clearly has its own “ aesthetic” moments as well, ... dramatic rearticulation and reenactment, the production o f sovereign speech, the replaying o f phantasmatic scenes.... Given that the state retains the power to create and maintain certain forms o f injurious speech as its own, the political neutrality o f legal language is highly dubious. ... I f we accept that hate speech is illocutionary, we accept as well that words perform injury immediately and automatically^] ... The saying is not itself the doing, but it can lead to the doing o f harm that must be countered. Maintaining the gap between saying and doing, no matter how difficult, means that there is always a story to tell about how and why speech does the harm that it does.2*

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As slander crystallizes into an actionable offence, which happens in the early mod­ em period, agency and the powers o f interpretation are relocated within the legal institution. In a reciprocal movement, the legal institution - that is, the network o f prerogative, secular and ecclesiastical courts - creates its sovereign power through a monopoly on the definition o f transgressive language. A t the same time, its exis­ tence and its continuity as an institution is effected by the functional connection o f words with material consequences. Through the closure and petrification o f con­ texts that characterizes the language o f the law, even i f equity is taken into account, speech acts become illocutionary in the sense that attempts are made to close the gap between words and actions. The authority to do this is gender-specific: it can be wielded only by men,29 which means that the official power to shape reality through speech is predicated on a male subject position. In contrast, female speech remains mostly informal, so that it becomes less powerful in a functionally differ­ entiated society that works increasingly through institutions. In this context it be­ comes powerful only through unauthorized “ answering back” , through usurpation and transgression. I f women are “ talked about” in a public sphere where they can­ not easily answer back, they seek a legal remedy in a patriarchal court at the peril o f having things done to them in the name o f words. Yet, also for professional men, while control over language becomes ever more important, it can never be absolute. First, there is no automatic, functional relation between domination and compliance. Second, the rise to institutional power in church or law may lend public prominence to the male voice, but it does so at the risk o f having reason turned to treason. Seditious speech and libel were prosecuted very severely, censorship accompanied the written word, and the fate o f quite a few eminent men, for instance Sir Walter Raleigh, exemplifies the transient nature and the perils o f public power. I w ill not elaborate on this rather well-researched field here; I just want to acknowledge the fact that speaking their minds was as dangerous for men as it was for women, and even more so, since their words car­ ried more weight. However, even i f an individual man considered his position precarious, the fact remains that authoritative public speech was linked with a powerful male subject position - all the more so for the danger - but the veiy elo­ quence that was instrumental for men’s rise in early modem institutions was not only tainted from linguistic, moral, and religious points o f view, as argued above, but was also beset with anxieties about political imprudence. It remains now to trace the means o f freeing eloquence from anxiety, and I sug­ gest that the potential dangers o f eloquence are in fact bracketed through gender­ ing. This becomes possible for a number o f reasons: Duplicity and subjection to passions, characteristics o f the “ vices o f speech” , have female connotations in the early modem period. Women’s allegedly insufficient reason makes them apt to exhibit the dangerous kind o f eloquence which is divorced from a true knowledge o f things. They are also credited with a persuasive power to move which is not informed by judgement. Furthermore, their topical propensity to curse and to style themselves as the mouthpiece o f some higher force create fear o f divine retribution, and their complaints and lamentations are said to move men to pity,

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39

often against their better judgement. The custom in moral discourse to depict vices and virtues as female allegories further helped to gender eloquence and to associate female speech with infamy.30 To put it simply: gendering serves to divide “ good” eloquence from “ bad” ; the “ good” is virile, the “ bad” is female, or at least effemi­ nate. Thus, female eloquence is not only negative because it rebels against cultural injunctions to silence, but structurally so, since it is believed to create and sustain a discourse o f infamy. Wayne Rebhom advances a related argument: Renaissance rhetoricians, living in an intensely patriarchal culture that parallelled rulers with men and subjects with women, attempt to valorize their art - which its critics attack as feminine, effeminate, and even homosexual - by defining it in ‘ masculine’ terms as a matter o f violent invasion and conquest. Identified as a kind o f phallic aggression, rheto­ ric is characterized by images that are completely consistent with and reinforce the fantasy o f imperial, absolutist power at the heart o f the discourse.31

Rebhorn goes on to argue that this discourse is immediately fractured again through the rhetoricians’ use o f feminized metaphors such as “ procreation” and “ bodily adornment” and through their ultimate identification with the feminized position o f subject. On account o f the myths and the iconography surrounding rhetoric, Rebhorn assumes that rhetoric was perceived as ultimately hermaphro­ ditic, with both the connotations o f positive, androgynous fertility and negative, monstrous aberration this term conjures up in the early modem period. While this is certainly a valid and interesting observation, the Renaissance discourse on rheto­ ric produces dichotomies o f gender which I take to be more lasting, especially since they are sustained by contemporary social realities. Rebhorn also notes this dichotomy: Renaissance writers produce this disturbing vision o f rhetoric as rape in their effort to “ save” it for its male practitioners, to defend its moral respectability and deny that the rhetor is a version o f Circe[.] ... [Ulysses’s] victory over Circe is the victory o f mas­ culine rhetoric, o f Mercury’s phallic rod and Ulysses’ equally phallic sword, over the inferior fe m in in e rhetoric o f Circe with her diminutive wand and her alluring garden o f delights. It is also, finally, a victory which, as Ulysses brandishes his sword in order to compel Circe to yield her bed to him, resembles nothing else but rape.32

Given the “ intensely patriarchal culture” and its institutions, I doubt that the anxiety o f being identified with the feminine could have been so strong as to com­ pletely cancel out the advantages o f an association of negative eloquence with femininity. The almost axiomatic nature o f this link can be demonstrated with the help o f a typical example, a contemporary work o f formulaic rhetoric presenting a collection o f declamations on cases called The O ra to r ,33 This text has gained some promi­ nence, because declamation 95, “ O f a Jew, who would for his debt haue a pound o f flesh o f a Christian” , was used by Shakespeare for his M erchant o f Venice?* Apart

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from this retrospective fame, The O rator is an important document in the context o f rhetoric because o f the didactic function made explicit in the address to the reader: “ In these thou maiest learne Rhethoricke to inforce a good cause, and art to impugne an ill.” 35 Some o f the case histories involve women who bring a suit and prevail. Cases like “ O f a woman that would forsake her husband, because he stood excommunicate” or “ O f the wife that would not forsake her husband, although he went about to procure her death” 36 show a sympathetic treatment o f women, i f they exhibit the behaviour expected o f them within a patriarchal framework. In cases like these, women’s speech is not criticized. Not so, however, in the case “ O f the Matrons who are accused for poysoning the Senators.” 37 The story goes like this: “ Marcus Claudius Marvellus, and Titus Valerius being Consuls in Rome” , two noble Roman women are accused o f poisoning a number o f senators; a slave woman having informed against them to the senate. The Roman women defend themselves first by pulling rank, refusing the slave woman’s right to accuse them and setting their own “ vertue and prudence” against the “ slanderous reports” 38 o f the bondwoman. They refuse to drink the liquid in question as a proof o f their innocence, because they maintain that it could have been poisoned by the slave. Eventually, however, they shift their argumentative strategy, asserting that it is not illegal to produce poison as long as it is not administered and that they did indeed produce it for their own defence, to preserve their chastity in the case o f enemy attacks. Their pleading is followed by an answer o f the senate: As is the common custome o f women, so is your prattle tedious, and to small purpose o f the matter in question: also it appeareth, and is verified in you, that the first aduise o f a woman is alwaies best, and that for a present excuse they exceed men, but when they would proceed, they speak against themselues, and they quite forget what to say[.] ... [NJeither is it well said, that we allow the commandement o f a slaue, but because she is likewise a woman we cannot hinder the readinesse o f her tongue, no more then o f yours: and for the allowing o f her saying to be hurtful, we may say that she hath preuented what we meant to speake: but you complaine before you haue cause; for on the contrary we do now demaund, (since you haue spoken so much) whether you think this water be venomous or no? I f you think it is not, drinke it?39

The senate is not content to point out a logical flaw in the Roman women’ s plead­ ing or to insist that murder must be detected and punished, but the line o f attack is the defendants’ femininity - previous knowledge about ‘the common custome o f women’ . Their pleading is classed as tedious prattle, an overabundance o f words without reason. While the women had insisted on rank, the senators privilege gen­ der over social position, taking the view that the slave is “ likewise a woman” , so that nobody can control her tongue. The senators would not have listened to her at all, the argument runs, had she not accidentally said what they meant to say them­ selves. It is asserted that the women’s words were “ to small purpose o f the matter in question” , so that additional questions must be put which, combined with the remark “ since you haue spoken so much” , make clear that all the defendants’ talk, abundant as it was, was completely irrelevant in the first place. The compiler o f the

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41

declarations, departing from his usual practice to leave the outcome o f the case open, is careful to report that the women drank the water and died and that within a few days over two hundred and seventy other women were condemned. It does not seem to be a problem that in this case, the senate is both the injured party and the judge. The example o f The O rator shows that it is not individual women’ s speech as such that is condemned; there is no clear-cut, easy opposition o f speech and si­ lence. But when in doubt, it is safe to assume that women’s verbal self-assertion serves to cover some criminal practice. Male eloquence may then be conceptual­ ized as the “ art to impugne an ill” cause.40 The discourse o f infamy pervading femininity, slanderous in essence, is readily available both to discredit women’s speech and to purge male eloquence, in church, the courts and elsewhere. The association o f negative eloquence with femininity makes it possible to attribute the taint to femininity and salvage pure speech as an uncorrupted means o f patriarchal communication. The nature o f gender relations in early modem England decrees that the protagonist o f the “ tragi-comedy o f performative misfire” , in Butler’s words, should be a woman.

CHAPTER THREE

The Law o f Slander

Passion is Reason when it speakes from Might. John Marston, Sophonisba

This chapter deals with the discourse o f slander in the courts o f law. The lack o f dialogue between disciplines and their different agendas makes this a particularly difficult topic in the present context. Most students o f the law are interested in current legal practice while legal history remains a marginal topic. Here scholars, with the exception o f the even more marginalized Law and Literature as well as Radical Legal Studies movements,1 are mostly concerned with collecting evidence o f historical legal usage and explaining how a remedy came to be what it is today rather than connecting the legal situation to other contemporary issues and dis­ courses, let alone analyse it in the light o f modem theoretical concerns. Given the bewildering mass o f source materials and the difficulties o f access, this should not come as a surprise. In my own account o f the juridical dimension o f slander, I w ill try to bring into dialogue the scholarship o f traditional legal historians with the sensibilities o f literary criticism in order to outline the history o f legal remedies for slander, while also looking for retroactive effects o f defamation law on the legal institution. On the basis o f my discussion o f language and rhetoric in the previous chapters and taking into account the influence o f humanism, I w ill attempt to trace the epistemological importance o f the discourse o f slander for the development o f juridical thought and procedure in early modern England. The closing section o f this chapter w ill consider the early modern English legal profession as a patriarchal institution which gives rise to a particular concept o f masculinity. “ Hotnosocial bonding” 2 creates a legal profession which confers on its members the power to determine the meaning and consequences o f verbal actions. Historically, defamation law originally belonged to the ecclesiastical courts. In 1222, the Council o f Oxford issued a provincial constitution, A uctoritate dei p a th s , which declared excommunicate any person who accused another maliciously o f a crime. The application o f this constitution was narrower than the Roman law concept o f in iu ria , where any abuse which damaged a person’ s good name was actionable. In the usage o f the English church courts, the truth o f the accusation was less important than the intention o f the speaker. Hence, i f it could be proven that the alleged words were actually spoken, the defendant would claim to have spoken in anger or jest, but not maliciously. The accusation must also have been

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heard by a third party in order to constitute a threat to the p laintiffs reputation. Local secular courts also offered a remedy for defamation roughly up to the year 1300. This remedy was partly modelled on the ecclesiastical proceedings, but there also is evidence that the local courts treated slander as a kind o f assault. Medieval canonists and civilians, while not blind to the differences between words and actions, nevertheless treated the two as part o f the same legal category. Under this for­ mulation they were simply alternate ways o f hurting someone. Many o f the local court records encourage us to see defamation in this light. ... Moreover, the entries sometimes explicitly portrayed slander as a physical act.3

In the course o f the 13th century, a distinction developed between injuries caused by words and by physical actions. This distinction may have been suggested by the scope o f different jurisdictions: “ The English Church had long since staked a claim to jurisdiction over defamation, not making such a claim over most physical tres­ passes, and this may have encouraged men to think separately about the two.” 4 In the case o f verbal injury, the local courts insisted on proof o f actual damage caused; the gist o f the action here was (material) damage rather than the plaintiffs loss o f reputation. Around the year 1300, distinctions between different jurisdic­ tions became sharper, and in the course o f the 14th century, the local courts lost the jurisdiction over defamation. Defamation was overwhelmingly oral throughout this period, and when formal disposi­ tive acts were also oral it may have seemed more natural to treat defamation on a par with other legal acts than it became when most important actions were embodied in writing. When w riting became more important around 1300, transactions resting on pa­ rol counted for less. Something like the same thing occurred in the royal courts between 1290 and 1320, with the adoption o f the rule that covenant could not be brought without proof by written document under seal. Local court jurisdiction over defamation might therefore have been a casualty o f the shift in the way man regarded the importance o f spoken words.5

It should be added that this concerns the private remedy, because criminal suits for contempt o f court, disturbing the peace or abusing officials continued to be brought. Private jurisdiction over defamation in the local courts was not taken up again until the sixteenth century in tandem with the development o f the action on the case for words in the royal courts.6 This started towards the end o f the 15th century, when the secular courts took the view that the ecclesiastical courts should only try defamation where a spiritual crime was imputed, that is where they had jurisdiction in the principal matter; a doctrine that was based on the Statute o f Praem unire issued in 1492. This, Helmholz explains, was only one o f several jurisdictional losses suffered by the ecclesiastical courts in the first quarter o f the sixteenth century. It ought therefore to be seen as part o f a shift in the

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jurisdictional boundaries between Church and State, one which left the royal courts with several areas o f legal competence which had once belonged to the courts o f the Church.7

This does not mean, however, that the ecclesiastical courts lost jurisdiction over defamation completely. By way o f compensation, attempts were made to apply the Roman law’s broader definition o f abusive words ( in iu ria ) as actionable without imputation o f a crime. Also, the overall volume o f defamation cases increased con­ siderably in the period. The royal courts acted on the basis o f the Statute o f Prae­ m unire , and also adapted a number o f remedies already within the scope o f their jurisdiction, among them the offence o f scandalum magnatum (statute o f 1275), contempt o f court and the slandering o f eminent individuals, which could be applied to an ever increasing group o f men.8 The first defamation trial at the com­ mon law occurred in 1508 and the first judgment was passed in 1517. In addition, “ prohibitions” could be issued by the royal courts to stay an action in a church court which involved the imputation o f a temporal crime. “ I f any decade marked the acceptance o f the new action, it was the 1530s.” 9 Helmholz suggests that the events o f the Reformation may have fostered the secularization o f defamation law. The influence o f Rome was weakened, and so was the authority o f the spiritual jurisdiction. In conjunction with this, I would argue that the influence o f humanism fostered a more complex attitude towards language. A closer attention to words can certainly be detected in legal usage con­ cerning defamation. Whereas in the ecclesiastical courts, the record used to state only that a crime was imputed (“ crimen imponebat” ), in the secular courts it be­ came increasingly important to register meticulously the actual words spoken. “ The first example found with inclusion o f the allegedly defamatory words in Eng­ lish appears in 1511 in the King’s Bench.” 10 It is sometimes doubtful whether the words were actually spoken because they appear in the manner o f a formal indict­ ment. Nevertheless, the fiction was created that the record contained a literal rendering o f what was said. Further, the courts experimented widely with a herme­ neutic device called the m itio r smsM-s-rule which said that no action should lie if the slanderous words could be construed in a “ milder sense” . The origin o f this rule had been the process o f deliberation whether an alleged defamer had actually sub­ jected the plaintiff to the danger o f the corporeal punishments inflicted under the criminal law. Over time, it became a space for legal sophistry since a milder sense could be squeezed out o f nearly any allegation. J.H. Baker assumes that the rule was applied in order to stem the increasing flow o f actions on the case for words in the latter half o f the sixteenth century. To illustrate the absurd lengths to which the rule was carried, he quotes a famous example where “ the defendant had said that the plain tiff ‘ struck his cook on the head with a cleaver, and cleaved his head; the one part lay on the one shoulder, and another part on the other’” .11 It was argued that the cook might have survived and then the charge would not have been murder but trespass. Therefore, since the p la in tiff would not have been liable to severe punishment for such a mutilation o f his cook, the defendant was cleared o f the charge o f slander.

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For the present purposes, the excesses o f this type o f reasoning are less impor­ tant than the hermeneutic activity involved. This included deliberation over regional varieties o f language, here quoted from a summary by John March: And it was said by I ones Iustice , that in Yorkshire strayning o f a M are , is all one with Buggering o f a Mare, and therefore he said that an action w ill lie for these words, with an averrement that they tantamount to Buggering o f a Mare. Note by his opinion in such case there must be an averrement o f the meaning or importance o f the words. ... Yet my Lord H o b a rt hath severall cases adjudged where a man brought an action for Welch words, and did not averre what the words did import in English, and yet judgement was given for the Plaintiffe, and the Court tooke information upon Oath by W elchm en what the words meant in English. // And in one o f the cases Serjeant lo h n M oore then in­ formed the Court that judgement had bin given in the Kings Bench (6 lac.) in the case o f Tuch upon these words Thou a rt a healer o f F ellons without any averrement, how the words were taken; because the Court was informed and tooke knowledge that in some Counties it was taken for a smotherer o f Felons. // The case intended by Serjeant M oore was I conceive the case o f P ridham and Tucker in the Kings Bench (Pasch.7. lac.), where the words were adjudged actionable, without an averrement, and in this case it was agreed that words may be slanderous in one County and not in another for in N o rf they know not what healer signifieth, but this being in D evonshire where this word is used for concealer o f Theeves, w ill be actionable.12

Also, in the case D aw try v. M iles, the question was debated whether accusing an attorney o f taking “ fees o f both hands” amounted to the same thing as calling him an “ ambidexter” , which was the official term for corruption. It was argued that the words “ amount to as much as am bidexter, and are the english o f it & a direct affir­ mation and no Metaphor” .13 No judgement is recorded in this case. Some incidents o f word-play were held actionable, however, as calling an “ auditor” a “ ffauditor” , or a “ Counceller at Law” a “ Concealer o f the Law” .14 A brewer was less successful with his suit because the insult he complained o f was held to be impossible and therefore not likely to scandal him. The words had been: “ I w ill give a pecke o f M alt to my mare, and leade her to the water to drinke, and shee shall pisse as good beere as Dickes doth brew.” 15 An increasing number o f actions on the case for words was brought, but due to the m itio r ^eraw^-rule fewer cases were held actionable unless specific material damages could be proven by the plaintiff. Therefore, whenever possible, plaintiffs emphasized both their status, which might make them liable to protection on account o f their office or occupation as well as the specific damages they had suffered by the slander to increase their chances o f a favourable decision. This was also a way for women to recover damages, because they could transfer a case o f sexual slander from the ecclesiastical to the common law courts by proving, for instance, that an engagement had been broken on the basis o f the defamation.16 What has been expounded here mainly concerns the private remedy, but it must be noted that the Star Chamber was also concerned with slander. It heard private cases o f defamation brought by eminent personalities, but more importantly, it

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treated defamation not as a private tort but as a crime. This meant that different rules applied: oral or written dissemination o f the slander or libel was not neces­ sary for it to be prosecuted, truth was no defence, and even the intention o f the speaker was disregarded i f the Privy Council took the view that the offending speeches or texts amounted to an - even potential - treason or breach o f the peace. It is significant that in the Middle Ages, when slander was still treated as a species o f assault, it figured in the secular courts, from whence it disappeared once words and actions were considered different categories. Now areas where the difference between word and action appears blurred - subjecting somebody to punishment, breach o f the peace and economic damage - brought slander back to the secular courts. This, I suggest, eventually led to a most precarious situation where two different concepts o f language underlay the civil and the criminal branches o f defamation law. The latter is based on an identification o f words and things as well as on assumptions about the illocutionary force o f language while the former is more “ modern” in that it acknowledges the instability o f language. In the criminal context, the word is like a blow, or rather, it is a blow, while in the civil context language is seen as a flexible instrument for the dialogic, intersubjective creation o f meaning. As this notion o f language arose in a humanist context, I w ill proceed to assess the impact o f humanism on the development o f early modern English law with a particular emphasis on slander law. In his In te rp re ta tion and M eaning in the Renaissance: The Case o f Law, Ian Maclean discusses the problem under consideration here: Has the influence o f humanism on the legal system contributed to a paradigm shift with regard to the treatment o f language? His answer is a cautious “ no” , but following his discussion o f slander as a performative he introduces an important qualification: I f there was an area in which Renaissance lawyers radically altered the positions taken by the postglossators, it was in the area o f subjective meaning and o f the performative or illocutionary force o f words. ... Turamini’ s theory o f speech acts is very close to that o f Austin’ s, although it emerges from a quite different intellectual context; it shows an in­ terest in expression and in reception o f words which belongs traditionally to the disci­ pline o f rhetoric. In this sense it is true to say that the Renaissance lawyers followed the trend o f their humanist counterparts in preferring rhetoric to logic, expression to formal coherence; but it is at the same time misleading. Turamini did not think o f his sugges­ tion about the force or performative functions o f language [as] incompatible with the claims o f jurisprudence to be an art subjected to dialectical rules o f argument; rather he saw it as a way o f lim iting the indefinite nature o f the law and articulating the areas in which it might be said to lie beyond the scope o f logical notation.17

Due to his focus on the opposition between rhetoric and logic, Maclean tends to underestimate the productive value o f ambiguity in jurisprudence. Also, he gener­ ally treats slander as performative, following his interpretation o f the Roman law concept o f in iu ria ,18 which is rather misleading. The attention given in defamation law to the m itio r smsKs-rule and to the role o f intention, context, and reception

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rather suggests that on the civil side, both in the ecclesiastical courts and in the common law actions on the case for words, defamation must be seen as negotiable and therefore as p e rlo cu tion afy. On the criminal side, where a much clearer hierar­ chy o f power is involved, actionable slander is defined by the authorities; it is not open to interpretation, and its meaning and outcome are pronounced to be unambi­ guous, which makes this type o f slander illo c u tio n a ry and equates it with a physical action, that is, turns it into a performative. Thus, what constitutes slander is defined by the specific structures o f power in which the utterance is implicated. However, when assessing the role o f slander for the development o f legal lan­ guage and the legal institution, it is important to keep in mind that the tide o f litigation over defamation which follows the Reformation and the dissemination o f humanist thinking concerned the p riva te remedy where the meaning o f words, as shown above, was an area o f contention. This view is supported by R.H. Helmholz, who studies private defamation in detail because he is convinced that “ civil actions lie at the heart o f the law. ... [Jurisdiction on the criminal side is a discrete subject, more concerned with dangers to public order and less concerned with legal defini­ tion than is the private law o f defamation.” 19 Moreover, it is an area where con­ spicuous numbers o f lower and middle class men and women participate in the negotiation o f meaning, even i f they are submitted to the strictures o f patriarchal legal procedure. This makes the discourse o f slander a very important topic in the development o f legal thinking, i f not in the history o f ideas, since interpretive activity superseded the application o f a rigid body o f laws. Because this greater lin­ guistic flexibility was accompanied by a certain anxiety, a feature already noted above with regard to rhetoric, it is not surprising that lawyers did not include their more experimental deliberations in the didactic writings Maclean mainly concen­ trates on. They should be looked for rather in the development o f pleading and the pleadings o f test cases as well as in suitable spaces within the legal institution, like the inns o f court, where moots20 were held and plays were staged regularly in order to explore questions o f interpretation by focusing on perplexing issues and curious cases. After all, as lawyers hold, “ hard cases make bad law” - although they do make good drama. It would seem, therefore, that Maclean’s cautious “ no” with regard to a paradigm shift in the legal system’s treatment o f language effected through humanist influence should be turned into an equally cautious “ yes” and that the private remedy for defamation was at the heart o f the matter.21 In order to substantiate this claim, I w ill consult another influential assessment o f the impact o f humanism on English law. In his introduction to The Reports o f S ir John Spelman , J.H. Baker discusses the influence o f humanist thinking on the law during the reign o f Henry V III. He identifies five features o f the law which might point to some link with the new learning: (i) attempts to improve the liter­ ary form and language o f the law, (ii) a tendency to explain the law historically rather than by recourse to a mystic notion o f ‘ reason’ , (Hi) the pursuit o f the utilitarian ideal o f the ‘common wealth’, (iv) an ‘equitable’ approach to the variety o f individual cases, and (v) an unprecedented confidence in the use o f legislation to regulate society.22

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With regard to the improvement o f the language o f the law, Baker mentions,J3 efforts to use the vernacular for legal texts and to establish a written code fi common law. However, he does not see substantial changes beyond some 1 practical improvements. He also discounts the humanist preoccupation with h as a significant influence on the law, since in his opinion more o f an impaotii made by the Elizabethan Society o f Antiquaries. Regarding his third point, Be adamant: “ The ‘common wealth’ belonged to the language o f political philps

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More. For the present purpose, however, it is important to note Rastell’s and St. Germain’ s shared concern with the role o f language as a medium for the dissemi­ nation o f knowledge and as a site for the negotiation o f meaning rather than as an instrument o f professional and institutional closure. Their spirit o f humanist reform induced them to introduce and disseminate new views on legal philosophy and procedure. The efforts o f Rastell and St. Germain, two humanist thinkers sympathetic to the common law, were later supplemented by John Cowell’s In te rp re te r, a law dictionary which appeared in 1607, in a rather different spirit. Cowell was a pro­ fessor o f civil law at Cambridge. He dedicated his work to the Archbishop o f Canterbury and declared in the preface: The Ciuilians o f other nations, haue by their mutuall industries raised this kinde o f worke in their profession, to an inexpected excellencie. I haue seene many o f them that haue bestowed very profitable and commendable paines therein: and lastly one C alninus a Doctor o f H eidelberge, like a laborious Bee, hath gathered from all the former, the best iuyce o f their flowers, and made vp a hiue full o f delectable honie. And by this ex­ ample would I gladly incite the learned in our common lawes and antiquities o f England, yet to lend their aduice, to the gayning o f some comfortable lights & prospects toward the beautifying o f this auncient palace, that hitherto hath bene accoumpted (howsoeuer substantial!) yet but darke and melancholy.3-’

Cowell’ s dictionary is truly encyclopaedic in character because, following, as he states, “ the example o f our Ciuilians” , he includes explanations o f all sorts o f words not appertaining to the law as well as extensive etymologies. His project is scientific and his concern is not, as Rastell’ s had been, to harmonize the interests o f the people with those o f the legal profession but to include as much civil law as possible into English usage. This marks him as one o f the foremost advocates o f what has been called “ romanization” or “ reception” - an endeavour which antagonized exponents o f the common law like Sir Edward Coke towards the end o f the sixteenth century and led to a polarization in institutional politics which had not been much o f an issue when the pioneering law-books were printed at the beginning o f the century. Consequently, Cowell criticizes the Statute o f Praem unire which transferred jurisdiction over defamation imputing secular crime from the ecclesiastical courts, where it properly belonged in his opinion, to the common law courts. In line with this, no entry for defamation or slander is to be found in his dictionary, but only for “ Libell” and “ Scandalum magnatum” . Cowell prefers to keep the debates likely to arise in the context o f a private remedy for defamation out o f the secular courts. Thus, in a development that accelerated towards the end o f the sixteenth century, the humanist project o f collecting, ordering and disseminating knowledge concerning the law, o f reforming its language and fostering debate, had turned into a factional dispute between the exponents o f different jurisdictions, in a multiplication o f dichotomies like common versus civil, domestic versus foreign, secular versus divine, ordinary

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versus prerogative and regional versus centralized. As the humanist origins o f change in the legal system were obscured, the power o f knowledge no longer served participation but institutional closure. Still, it is o f the utmost importance to keep in mind that the new types o f controversy, adverse as they may have been to a humanist “ spirit” , would hardly have been possible without the open and flexible approach to legal language and discourse fostered by humanism. It is not surprising that defamation law should frequently have been a bone o f con­ tention in power struggles between different branches o f jurisdiction. The nature o f the offence necessitates deliberations about the force and meaning o f words which may be difficult to contain since they are likely to have repercussions on the proc­ ess o f deliberation itself. Moreover, it is hard to keep the spirit o f contention and strife, the energeia o f slander, as it were, out o f such debates. In 1591, Richard Cosin took it upon himself to defend the ecclesiastical courts against “ disturbers ouer much addicted to factious innouations” : For by themselues, and others (more simple) excited cunningly by them, they challenge diuerse receiued proceedings in Courts Ecclesiastical!, not to be justifiable by lawe: pretending nowe their especial 1 griefe to rest herein, for that they are dealt with and op­ pressed contrarie to lawe, euen as i f they did carry a principall and zealous care to haue all her Majesties lawes duely obserued.™

Cosin is adamant that the jurisdiction over defamation must belong to the spiritual courts alone and that some very special exceptions rather prove the rule. Sir Edward Coke, on the other hand, speaks for the interests o f the common law, though in his influential Reports, he takes care not to quarrel openly with the ecclesiastical jurisdiction. In Book V, under the heading “ O f the Kings Ecclesiasti­ cal Law” , he remarks: The Ecclesiastical Law and the Temporal Law have several proceedings, and to several ends; the one being Temporal to inflict punishment upon the body, lands, or goods; the other being Spiritual, p ro salute Anim ae, the one to punish the outward man, the other to reform the inward, and this appeareth in 12 H. 7.22. & 10 E. 4. 10, &c. Then both these distinct and several Jurisdictions consist and stand well together, and doe joyn in this, to have the whole man inwardly and outwardly reformed.”

To be sure, this beautiful proportion was often upheld by prohibitions, issued by Coke as Chief Justice, to stay actions in the ecclesiastical courts. In Book IV, he includes a section ilActiones de Scandalise Or, Actions for Slaunder” where he lists 17 cases heard in the King’ s Bench and Common Pleas between 1578 and 1603, omitting many others which I doe not think necessary to be published, my opinion al­ ways being, Q uod m ulto u tiliu s est pauca idonea effundere, quam m ultis in u tilib u s hom ines g ra v a ri. And at least these b rief Resolutions, and the reasons o f them being well understood, and kept, w ill peradventure give great direction and instruction p ro

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m ultis a liis , and w ill deterre men for words which are but winde to subject themselves to

actions, in which damages and costs are to be recovered, which sometimes do trench to the great hindrance and impoverishment o f the speakers.38

Coke here chooses to take the view that words are “ but winde” , and his selection o f cases gives the impression, in accordance with the m itio r s