Equity and the Problem of Theseus in A Midsummer Night's Dream: Or, The Ancient Constitution in...

Equity and the Problem of Theseus in A Midsummer Night's Dream:Or, the Ancient Constitution in Ancient Athens

Peter C. Herman

Journal for Early Modern Cultural Studies, Volume 14, Number 1, Winter2014, pp. 4-31 (Article)

Published by University of Pennsylvania Press

For additional information about this article

Access provided by San Diego State University (24 Dec 2013 14:11 GMT)

http://muse.jhu.edu/journals/jem/summary/v014/14.1.herman.html

http://muse.jhu.edu/journals/jem/summary/v014/14.1.herman.html

the journal for early modern cultural studiesvol. 14 , no. 1 (winter 2014) © 2014

Equity and the Problem of Theseus in A Midsummer Night’s Dream:

Or, the Ancient Constitution in Ancient Athens

peter c. herman

a b s t r a c t

This essay examines the unsuspected role of equity in A Midsummer Night’s Dream. Accord-ing to Plutarch, Theseus promised that Athens would “be a common wealth . . . [in] which he woulde only reserve to him selfe the charge of the warres, and the preservation of the lawes. . . .” As such, ancient Athens recalls early modern England, which also considered itself a nation ruled by laws, not men. Theseus, therefore, must follow “the ancient privilege of Athens.” But following the law did not mean slavishly enforcing it, and in a move that echoes the sixteenth-century debates on the topic, Theseus uses his equity to soften the law as much as he can, thus coming up with the wrong result (enforced marriage)—but for the right reasons. At the play’s end, Theseus famously overrules Egeus (“I will overbear your will”), but in doing so, Theseus replaces law with will, and by doing so comes perilously close to the definitive behavior of a tyrant. He thus comes to the right result, but for the wrong reasons. The article demonstrates that the problem of law and equity participates in a web of disturbing resonances that reinforce each other and further trouble the play’s performance of comic closure.

The topic of law in A Midsummer Night’s Dream might seem, on the face of it, almost absurdly beside the point. Most critics focus on the twin prob-

lems of love and gender relations, the role of the “rude mechanicals,” or the re-lationship between this play and Elizabeth I. Similarly, discussions of Theseus concern his problematic erotic life rather than his role as Athens’s ruler and his relationship to law.1 Conversely, the many scholars interested in Shakespeare and the law usually leave this play alone, preferring more obviously legalistic

5Herman • Equity and the Problem of Theseus in A Midsummer Night’s Dream

texts, such as The Merchant of Venice or Othello.2 Two recent critical guides to A Midsummer Night’s Dream do not mention law at all.3 Yet there are very good reasons for examining A Midsummer Night’s Dream as a “constitutional com-edy” (10), to use Oliver Arnold’s excellent phrase. While the total number of lines explicitly devoted to the question of law may be small, they are crucial to the meaning, direction, and action of Shakespeare’s comedy, which as Kiernan Ryan aptly notes, “is suspended . . . between a verdict and a reprieve” (77).4

Shakespeare situates the play in ancient Athens, a city commonly associ-ated almost as much as ancient Rome in the early modern political imaginary with republicanism, which implies a polity governed by law rather than the ruler’s will. Theseus is not just the city’s leader; as we will see, he founded the city using explicitly constitutionalist principles. At the play’s start, those prin-ciples inform the exchanges between Theseus, Egeus, and Hermia, which also raise the same questions of law and equity that were debated over the course of the sixteenth century.5 Finally, the play achieves its comic ending only when Theseus once more engages the law and, in a highly resonant act, “overbears” it, thus raising the specter of tyranny. At the outset of A Midsummer Night’s Dream, Shakespeare raises questions about the extent of a ruler’s authority, constitutional law, and legal interpretation, and these issues will return to sig-nificantly cloud the play’s ending. Consequently, A Midsummer Night’s Dream is as much a problem play in ovo as a brilliantly funny comedy.

1.

Shakespeare does not try to make his setting historically accurate (there are, inter alia, no dukes in ancient Greece), yet the fact that he set this play in an-cient Athens would necessarily have raised certain expectations and associa-tions. What did Athens mean in the latter sixteenth century? While the city represented the epitome of intellectual life—the place, as Richard Mulcaster put it, “where the most philosophers were” (sig. B3r)—Athens generated an-other set of commonly understood meanings as well. As Andrew Hadfield re-minds us, “Shakespeare’s work emerged out of a culture that was saturated with republican images and arguments” (1), and Athens was part of a clutch of cities frequently invoked to represent the ideal (and sometimes the nightmare) of republican rule, meaning, a polity where laws restrain the ruler. The associa-tion between Athens and republicanism can be traced back at least to the late fourteenth or early fifteenth century, when the humanist Leonardo Bruni praised Florence “in terms and forms borrowed from Thucydides and other

The Journal for Early Modern Cultural Studies • 14:16

ancient celebrators of the greatness of republican Athens” (Grafton 4), and ref-erences to republican Athens became a staple of sixteenth-century political discussions. In the Institutes, for example, Jean Calvin forbids resistance by pri-vate citizens, but he exempts from this stricture “any magistrates of the people, appointed to restrain the willfulness of kings,” such as the “demarchs against the senate of the Athenians” (2: 1519). George Buchanan echoes this opinion at the end of his Latin History of Scotland, when he included Athens among the “famous cities” (sig. 5K7v); the others being Sparta, Rome, and Venice), whose rulers understood that they were beneath the law, not above it. These cities “never suffer’d this Right to be taken from them” (Hadfield 38). In his manu-script essay on honor (dedicated to Sir Thomas Egerton) written toward the end of the 1590s, Robert Ashley sees a symbiotic relationship between republi-canism and honor in ancient Athens and Rome: he praises “the founders of those common weales” ensuring that “their Cittizens” could channel their “great spirite and Courage” to “great accions,” and because the “Cittizens” are “of more witt and accomplishment,” they will obey only “such a one as ruleth by lawes and institucions and governeth justly” (49; Peltonnen 1: 104). And in The Scholemaster (1570), Roger Asham conflates Athenian political structure with its intellectual and pedagogical virtues:

The remembrance of soch a common welthe, using soch discipline and order for yougthe, and thereby bringing forth to their praise, and learning to us for our example, such Capitaines for warre, soch Councelors for peace, and matcheles masters, for all kinde of learning, is pleasant for me to recite . . . . (sig. O1v)

The fact that Ascham, among others, calls Athens a “common welthe” is impor-tant because that was how England was frequently described. Sir Thomas Smith, in 1583, defines the term thus: “A common wealth is called a society or common doing of a multitude of free men collected together and united by com-mon accord and covenauntes among themselves, for the conservation of them-selves aswell in pace as in warre,” and England, like Athens, is a “common wealth” (De Republica Anglorum 57).6 Only freemen, Smith writes, are considered “as subjects and citizens of the commonwealth” (64), and he devotes a chapter of his De Republica Anglorum to “The Parties of the Commonwealth of England” (65). Equally important, the term “commonwealth” implies a political body governed by the rule of law as well as a shared sense of mutual benefit, and Smith contrasts a “commonwealth” with a state lacking both commonality and law:


[if] one husbandman had a great number of [chattels] and looked well to them, yet that made no common wealth nor could not so be called. For the private wealth of the husbandman is only looked for and there is no mutu-all societie or parte[,] no law or pleading betwixt thone and thother. (57)

Crucially for our understanding of Shakespeare’s play, this type of political or-ganization was said to originate in ancient Athens, and Theseus was understood to be its architect. According to the description in Sir Thomas North’s transla-tion of Plutarch’s Lives of the Noble Grecians and Romans (a book critics agree that Shakespeare knew exceedingly well), after his father’s death, Theseus:7

undertooke a marvelous great enterprise. For he brought all the inhabit-ants of the whole province of Attica, to be within the citie of Athens, and made them all one corporation, which were before dispersed into diverse villages, and by reason thereof were very hard to be assembled together, when occasion was offered to establish any order concerning the common state. Many times also they were at variance together, and by the eares, making warres one upon an other. But Theseus tooke the paines to goe from village to village, and from family, to familie, to let them understand the reasons why they should consent unto it. So he found the poore people and private men, ready to obey and followe his will: but the riche, and such as had authoritye in every village, all against it. Nevertheles he wane them, promising that it should be a common wealth, and not subject to the power of any sole prince, but rather a popular state. In which he woulde only reserve to him selfe the charge of the warres, and the preservation of the lawes: for the rest, he was content that every citizen in all and for all should beare a like swaye and authority. (1: 52; emphasis added)

In North’s rendering, Theseus’s plan for the nascent commonwealth of Ath-ens echoes Smith’s description of England as a nation of laws, not people. As in Theseus’s original proposal, the English monarch has full charge of the commonwealth’s defense, and can act as an “absolute” monarch (meaning, without regard to the law) in time of war: “But as such absolute administra-tion in time of warre when all is in armes, and when lawes hold their peace because they cannot be heard, is most necessarie” (Smith 54). But only in time of war: “so in time of peace, the same is verie dangerous, aswell to him that doth use it, and much more to the people upon whom it is used: whereof the


cause is the frailtie of mans nature, which (as Plato saith) cannot abide or beare long that absolute and uncontrowled authoritie, without swelling into too much pride and insolencie” (54).

Smith’s vision of England as a “monarchical republic” (394), to appropriate Patrick Collinson’s phrase, has its roots in Sir John Fortescue’s fifteenth- century text, De Laudibus Legem Angliae (In Praise of the Laws of England), in which he asserted that “the king of England is not able to change the laws of his kingdom at pleasure” (17), and in the seventeenth century these principles would become known as the “Ancient Constitution.” 8 Despite their obvious differ-ences, ancient Athens (as understood by Plutarch and transmitted by North) and Elizabethan England share a fundamental understanding that the mon-arch bends to the law, and not vice versa. The 1398 articles against Richard II, which were first transmitted to the sixteenth century through Edward Hall’s chronicle (1548), and then printed in both iterations of Holinshed’s “Chronicles,” reported (with some incredulity) Richard’s tyrannical justification for his ac-tions: “he said that the lawes of the realme were in his head, and som time in his brest, by reason of whiche fantasticall opinion, he destroyed noble men and em-poverished the pore commons” (Hall 10).9 Fortescue reiterates this principle in equally unqualified terms: “a king . . . is unable to change the laws of [the body politic], or to deprive that same people of their own substance uninvited or against their wills” (21). A shorter, English translation of Fortescue’s De Laudi-bus (one that widely circulated in manuscript under the title “Of the difference between an absolute and limited monarchy,” is even starker. Following In Praise of the Laws of England, Fortescue once more distinguishes between dominium regale and dominium politicum et regale: “The first king may rule his people by such laws as he makes himself . . . . The second king many not rule his people by other laws than such as they assent to” (83).10

These documents were not considered by Elizabethans to be the relics of an earlier age or mere theoretical speculations. Rather, they reflect the com-mon understanding that “the monarch was a creature of the law” (Cromartie 94), and for all the celebrations of monarchy, deference to royalty “was not a bar to supervision” (Halliday 158). And far from resentment at this limitation on royal prerogative, Elizabeth and her advisors publicly and enthusiastically embraced their subservience to the law. In 1571, Chief Justice Christopher Wray, after being elected speaker of the House of Commons, gave a speech on “the orderly government of a common weal” in which he asserted that Eliza-beth’s respect for the law distinguished her from her forbears: “[w]hereuppon


he sayd somewhat in comendacion of her Majestie, who had given free course to her lawes, not sendinge or requiringe the stay of justice by her letters or privie seales, as heretofore sometyme hath bene by her progenitors used (Hartley 1: 198, 199; Cromartie 94). Elizabeth attended that speech and pre-sumably approved of its contents, and in her famous “Golden Speech” of 1601, she very proudly rejected the absolutist notion that the monarch is above the law: “[y]ou must not beguile yourselves nor wrong us to think that the glosing luster of a glittering glory of a king’s title may so extol us that we think all is lawful what we list” (343). True, Elizabeth would occasionally use extra-legal power, mainly for the purpose of establishing monopolies or using proclama-tions to make law, “but she did so sparingly and timidly” (Cromartie 99).11

Turning to A Midsummer Night’s Dream, Shakespeare’s audience would have been primed to understand the play’s actions in terms of constitutional as well as erotic politics. They would have been primed to expect a ruler such as Theseus to follow the law, as respect for the law was part of Elizabethan England’s “cultural grain” (Cromartie 96). Shakespeare signals that his an-cient Athens follows the privileging of law over whim or will that we have found in Fortescue and others in an unexpected way when Theseus complains that the moon “lingers my desires, / Like to a step-dame or a dowager, / Long withering out a young man’s revenue” (1.1.4–6).12 Certainly, these lines do not say much that is positive about Theseus’s attitude toward women, and they provoke Lysander’s proposal that he and Hermia flee to the safety of his “widow aunt, a dowager / Of great revenue” (1.1.157–58). However, the young man’s resentment of his stepmother’s continuing existence needs to be set against his inability to control what she does with her money. The passage re-lies, in other words, on how men in early modern England could not simply appropriate or abrogate the widow’s “revenue” at will. While the situation was complicated by the many competing jurisdictions in England and various at-tempts to limit the transfer of property to women, “it was believed that a wid-ow’s rights were sacred” (Sokol 178). Because “rights like dower and freebench [the widow’s estate] were so prominent in the consciousness of many commu-nities[,] widows often took up their entitlements without opposition” (Stret-ton 109–10). But when these rights did face legal challenges, widows vigor-ously defended their interests in the various courts available to them, usually successfully.13 The young man’s frustration thus arises from the key fact that both English and Athenian society are governed by laws that cannot be abro-gated at will, even by the ruler.


When, therefore, Shakespeare’s Egeus roars onto the stage, full of vexation and complaint, demanding that Theseus fulfill the provisions of “our law” (1.1.44), there is a great deal at stake here. In Plutarch, Theseus promised that Athens would “be a common wealth, and not subject to the power of any sole prince” (1: 152), and Egeus, essentially, tests this promise by demanding that Theseus follow the law. Shakespeare, however, increases both the stakes and the relevance to Elizabethan England by having Egeus not just call upon “law,” but upon “the ancient privilege of Athens” (1.1.41), an extremely important phrase in English legal thinking that is both evocative and precise.

According to the definition in John Rastell’s very popular An exposition of certaine difficult and obscure words, and termes of the lawes of this realme, newly set foorth and augmented (1579 edition), “privileges are liberties, and fraunchises graunted to an office, place, Towne, or manner by the Queen’s great Charter, letters patentes, or act of parliament” (sig. Y1v–r).14 This definition blends to-gether the two types of privileges current in early modern England, and it is important to distinguish between them. The first kind are the relatively low-bore rights granted by “letters patentes” and in these instances, as Edward Coke puts it in his analysis of Magna Carta in the Institutes, “the Subjects have [their privileges] of the gift of the King” (2: 851). Examples would include mo-nopolies and the right to print a particular book for a certain period.15 Such privileges are obviously revocable at the monarch’s pleasure.

However, there are privileges of another sort, privileges that are manifestly not revocable at will, such as the immunities enjoyed by members of Parlia-ment and officers of the court from arrest. The privilege of Parliament was said to be “ancient,” dating, according to Edward Coke, “à tempore quo non extat memoria” (“from time out of mind of man”: 2: 1110). Demands for release on these grounds were called “writs of privilege,” and even Henry VIII (not noted, as Speaker Wray says, for his adherence to judicial independence) recognized their authority. As reported in Holinshed’s Chronicles (1577), after one of their members was arrested for debt in 1543, the House protested mightily; and Henry commended “their wisedome in maintaining the privileges of their house (which he would not have infringed in any poynte).” 16

Other privileges were associated with the Ancient Constitution, as signi-fied by Rastell’s phrase, “graunted . . . by the Queen’s great Charter” (meaning Magna Carta), such as habeas corpus (the right to be imprisoned only with cause, and to have the reason for incarceration examined by a judge).17 In 1588, for example, Sir Francis Walsingham threw one Howel (his first name is not


recorded) into prison, and Howel protested his incarceration by filing a writ of habeas corpus. Walsingham’s attorney asserted that the court did not have ju-risdiction, but the judge disagreed, writing that the court had the authority and would make its own determination of the case: “if it shall seem good to the Court, that the prisoner shall have his Priviledge, and he shall be dismis’t, he shall be discharged, but if not, then he shall be remanded” (Reports and Cases sig. R4v–r).18 “Priviledge” in this instance means the “privilege” of habeas corpus. Sometimes privileges were used against privileges. In 1592, the Lord Chamber-lain, Henry Carey, ordered John Agmondesham, a prominent lawyer, jailed for ostensibly violating royal privilege by filing suit against one of Elizabeth’s ser-vants. The chief justice of the court of Common Pleas granted Agmondesham a writ of habeus corpus, arguing that a privy councilor could not imprison someone “for suing ordinary actions and suits at the common law” (Halliday 157–58), royal privilege or no.

When, therefore, Egeus invokes the “ancient privilege of Athens,” Shake-speare employs a phrase that would have automatically granted the law in question tremendous authority in early modern England. The term was closely associated with the authority of the Ancient Constitution, the privilege of Par-liament, habeus corpus, and Magna Carta. In each of these cases, the privileges in question exist independently of the ruler, who, as even Henry VIII realized, must accommodate them rather than vice versa. As Halliday reminds us, def-erence to royal authority “is no bar to supervision” (158). Consequently, when Egeus invokes the “ancient privilege of Athens,” he puts both Theseus and the audience on notice that this law is not something any ruler of a commonwealth, be it ancient Athens or late sixteenth-century England, can ignore or casually supersede, especially since (returning to Plutarch) Theseus promised everyone that he would limit his role as leader of the commonwealth to the waging of war and “the preservation of the lawes” (1: 52).

But while Theseus must enforce the law, he had options just as Tudor judges had options, and I want to turn now to summarizing the intense debate in the sixteenth century over how much leeway the judiciary had when inter-preting both written (statutory) and unwritten (common) law.19

2.

No reasonable person ever endorsed a mindless adherence to the strict letter of the law. From the classical period in Greece onward, one finds a keen awareness


that the rigor of law sometimes needed to be softened by a form of aequitas, or equity. As Aristotle writes in the Rhetoric, equity is “ justice that goes beyond the written law” (1.13.13), and by the Elizabethan period, it was understood that legal interpretation covered a very wide range of options. As Egerton put it, “sommetymes [the law] shalbe construed straictelie—that is, accordinge to the wordes & no further. Sometymes the wordes by equytye are stretched to lyke cases. Sometymes they are expounded againste the wordes” (123). While discus-sions of equity often focus on statutory interpretation, the principle applied to all legal interpretation. Equity, as Edmund Plowden writes in his report on Eyston v. Studd, constitutes “a necessary Ingredient in the Exposition of all Laws” (2: 466), whether statute, custom, or “ancient privilege.”

Still, equity was neither uncontroversial nor unproblematic. The contro-versy started when Cardinal Thomas Wolsey decided to turn the King’s Court, or the court of Chancery, into a refuge from the rigors of the common law courts, overturning their judgments despite his own lack of legal training. The ensuing arguments provide a record of the legal and interpretive issues gener-ally raised by equity, regardless of the venue. Wolsey did not write a treatise outlining his legal theories, but his biographer George Cavendish reports that after his fall, when confronted with a demand to give up York Place, Wolsey told the messenger, while “this be the law, yet this is conscience. For law with-out conscience is not good . . . [and so Henry VIII ] ought of his royal dignity and prerogative to mitigate the rigor of the law where conscience hath the most force” (121).20

Christopher St. Germain (c. 1460–1540), however, did write a legal treatise defending equity, commonly known as Doctor and Student (first printed in 1528 and frequently reprinted over the course of the sixteenth and seventeenth cen-turies), and in that text he expressly condemned mindlessly enforcing the law without regard to facts or consequences:

[To strictly] follow the words of the law were in some cases both against justice and the common wealthe wherefore in some cases it is necessary to leave the wordes of the law, and to follow that reason and Justice requireth, and to that intent equity is ordained: that is to say, to temper and mitigate the rigour of the law. (Dialogues sig. D4v)

The tensions between Chancery and the common law courts that gave rise to St. Germain’s book during the late 1520s and early 1530s subsided (probably


overtaken by Henry VIII’s divorce and the Reformation), but the issue arose once more in the 1560s and 1570s, when a series of judgments and books dealt with the problem of equity and the law.21

Writer after writer praises equity for allowing a judge flexibility. In his re-port on Eyston v. Studd, Plowden notes that “[e]quity . . . enlarges or dimin-ishes the letter according to its Discretion” so as to ease the burden of overly harsh laws: “[f]rom whence the Reader may observe how convenient a Thing this Equity is, and the wise Judges of our Law deserve great Commendation for having made Use of it where Words of the Law are rigorous, for thereby they have softened the Severity of the Text, and made the Law tolerable” (2: 467). Both Sir Thomas Smith and William Lambarde allow that the right to alter the law according to conscience is the prerogative of either the Lord Chancellor or the monarch. In his description of the English legal system, Smith defines chancery as “the court of conscience, because that the chauncellor is not [re]strained by rigour or forme of wordes of lawe to judge but ex aequo and bono, and according to conscience as I have said” (93–94). Similarly, Lambarde, in Archeion or, a Discourse upon the High Courts of Justice in England (written 1591; published 1635), agrees that the sovereign reserves the right “to himselfe, or referre[s] to others a certaine soveraigne and preheminent Power, by whiche he may both supply the want, and correct the rigour” of the law; equity, Lambarde continues, “doth not onely weigh what is generally meet for the most part, but doth also consider, the person, time, place, and other circumstances in every singular case that cometh in question, and doth thereof frame such judgement as is convenient and agreeable to the same” (3).

Yet both defenders and critics of equity were quite aware of how relying on conscience and framing judgments according to particular circumstances rather than custom, precedent, or established rules, let alone interpreting stat-utes “againste the wordes” ( Egerton 123), risks legal anarchy. Sir Thomas More, Wolsey’s eventual successor as Lord Chancellor, did not dispute the impor-tance of conscience, but he was equally aware of the danger posed by the arbi-trariness of Wolsey’s approach to judging. In Responsio ad Lutherum (1523), More explicitly attacked the notion that a good judge should follow his natural inclinations, guided as they are by the spirit of God, rather than law:22

If you take away laws and leave everything free to the magistrates, either they will command nothing and they will forbid nothing, and then magis-trates will be useless; or they will rule by the leading of their own nature


and imperiously prosecute anything they please, and then the people will in no way be freer, but, by reason of a condition of servitude, worse, when they will have to obey, not fixed and definite laws, but indefinite whims changing from day to day. (5: 277)

While More obviously has a larger context in mind here—his critique of eq-uity repeating in small his critique of Protestantism, which is his main ob-ject—his polemic also intervenes in the contemporary legal debate over Wol-sey’s use of the chancery (equity) as a powerbase.23 As one might imagine, not all judges embraced Wolsey’s and St. Germain’s expansive views of equity and the role of conscience (as opposed to law, written or unwritten) in judging or in carrying out one’s legal responsibilities. An ostensibly anonymous “Replica-tion,” written as a response to St. Germain’s Doctor and Student, pointed out the damage that would ensue if one were to replace the law with a judge’s conscience:

But if the subgiettes of any realme shalbe compellede to leve the lawe of the Realme, and to be ordred by the discrecion of oon man, what thing may be more unknowen and more uncertain? And namely, for asmoche as con-science is a thinge of greate uncerteyntie, for summe men thinke if they treade upon two straws that lie acrosse, that they offende yn conscience; and summe man thinke if he lack money and an other hath too moche, that he may take parte of his with conscience. And so divers men, divers conscience . . . . (101)24

John Selden, in his Table Talk, makes the same criticism of equity, which he calls a “roguish thing”:

For Law we have a measure, know what to trust to; Equity is according to the Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ‘Tis all one as if they should make the Standard for the mea-sure, we call a Foot, a Chancellor’s Foot; what an uncertain Measure would this be? Once Chancellor has a long Foot, another a short Foot, a Third an indifferent Foot: ‘Tis the same thing in the Chancellor’s Conscience. (49)

To meet such objections, legal writers agreed that equitable interpretation needed to have limits. First, there was general consensus, as Baker reminds us,


that laws could not be disregarded “on the grounds that they were unconscio-nable” (Introduction 126). One could not simply ignore a law—or a “privilege”— because it offended one’s personal sense of morality. A 1522 case, Gresley v. Sanders, held that even though the defendant “had great conscience to with-hold the land from the possession of the demandant,” he had no right to do so because “he must be ordered in his pleading by whom he was put in trust, and not otherwise” (Spelman 93: 22–23). In other words, “a trustee was not to fol-low his own conscience, but was to obey his beneficiary; his conscience . . . was ordered by law” (Baker, Introduction 126). Second, legal writers looked to inten-tion to allow equity to soften the rigor of the law while simultaneously limiting the range of the Chancellor’s conscience (or foot size). St. Germain implicitly grants that equity must follow the common law, and when faced with situa-tions that the common law does not cover or would result in an obvious injus-tice, equity must “followeth the intent of the law, rather than the wordes of the lawe” (Dialogues sig. D4r). Edward Coke confirms this principle in Heydon’s Case (1584) when he asserts that “the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy . . . according to the true intent of the makers of the Act” (Reports 1: 80).25

When, therefore, Egeus approaches his ruler and demands that he en-force the law, Theseus faces a very difficult situation. On the one hand, as Athens’ ruler, he is charged, as Ashley puts it, with ruling “by lawes and insti-tucions and [governing] justly” (49), exactly as he promised in Plutarch, and Shakespeare’s Theseus recognizes that he is bound to follow the law regard-less of his personal feelings. He warns Hermia that she must either “fit your fancies to your father’s will; / Or else the law of Athens yields you up / (Which by no means we may extenuate)” (1.1.118–20; emphasis added).26 Following Gre-sley v. Sanders, the question of whether one personally finds the law repug-nant is irrelevant. Theseus’s understanding of the limits of his authority in A Midsummer Night’s Dream also draws on Theseus’s promise in Plutarch to “reserve to him selfe . . . the preservation of the lawes” (1: 52). Yet at the same time, equity grants Shakespeare’s Theseus “a certaine soveraigne and pre-heminent Power” (Lambarde 3) to soften “the Severity of the Text, and [make] the Law tolerable” (Plowden 2: 467), so long as he remains true to the law’s intent—obviously a key limitation. While we are not privy to the exact word-ing of the “ancient privilege of Athens,” I think we can safely assume that the “true intent” (Coke, Reports 1: 80) of this privilege is not to kill, but to enforce daughterly obedience to paternal authority. Theseus’s job is to “make such


construction as shall suppress the mischief, and advance the remedy” (Coke, Reports 1: 80), the reasonableness of the demand put upon the daughter unfor-tunately not being a relevant factor.27

Consequently, Theseus softens the rigor of “the ancient privilege of Ath-ens” while remaining faithful to its “true intent” (Coke, Reports 1: 80) by si-lently emending the law and placing another option on the table, one not pres-ent in either Egeus’s stark summary or in Theseus’s subsequent confirmation of the law, one that adds a further disincentive for disobedience while ameliorat-ing the original death sentence.28 Lacking the exact wording of the law or the privilege, the question of whether Theseus amends the law or Egeus forgets the second option cannot be resolved with absolute certainty. However, three fac-tors tip the scale toward the former reading. First, Theseus does not correct Egeus after Hermia’s father states, in language that certainly sounds like he is quoting a statute, that the punishment for disobedience is death, “[i]mmedi-ately provided in that case” (1.1.45). Second, Theseus accepts Egeus’s statement of the law when he confirms the father’s right to do as he wills with his daugh-ter: “To you our father should be as a god—/ One that composed your beau-ties, yea, and one / To whom you are but as a form in wax / By him imprinted, and within his power / To leave the figure or disfigure it” (1.1.47–51). And third, Theseus comes up with the lesser (albeit not by much) punishment only after Hermia asks the duke what precisely is the bottom line: “I beseech Your Grace that I may know / The worst that may befall me in this case / If I refuse to wed Demetrius” (1.1.62–64). Despite Egeus’s statement that she must either obey or die, Hermia evidently thinks that Theseus might actually have more leeway in interpreting the law, and he immediately takes advantage of the opportunity to allow for an alternative punishment. Had Hermia not asked for equitable re-lief (as it were), it seems unlikely that this option would have surfaced.

But Hermia does ask for equity, or at least, she asks if Theseus will bind himself to the letter of the law, and consequently she is offered two choices should she refuse to wed Demetrius: “Either to die the death, or to abjure / For ever the society of men” (1.1.65–66; emphasis added). Leaving alone for the mo-ment whether either choice is palatable, the fact remains that Theseus does as much as he can “to temper and mitigate the rigour of the law,” as St. Germain puts it (Dialogues sig. D4v) by creating an option whereby Hermia may sur-vive while at the same time enforcing patriarchal authority. While this may not seem like much, we need to remember that (according to Plutarch), The-seus promised that he would uphold the law, and this law especially requires


upholding because it is an “ancient privilege,” with all that phrase entails. But the rules of equity grant him the ability, even obligation, to ameliorate this privilege’s rigor, and that is exactly what Theseus does.

Even so, many, if not most, of Shakespeare’s audience would have immedi-ately recognized that the result of Theseus’s equitable interpretation of the “an-cient privilege of Athens” is almost as monstrous as the privilege itself. Granted, a few endorsed the notion that the father, as Theseus puts it, “should be as a god” (1.1.47–52), with the right to make or mar his creation as he chooses. 29 Yet many more vehemently opposed compelled marriage as “the extremest bond-age that is” (Whetstone, sig. F1r). The 1593 anonymous pamphlet, Tell-Trothes New-yeares Gift, records a conversation between “Tell Trothe” and (interest-ingly enough) Robin Goodfellow, who has just come from witnessing a session of Hell’s parliament. The speaker of the assembly, Robin reports, delivered an oration in praise of jealousy, “declaring what a continual profite Jelosie above all other vices brought to that place,” and the first cause of this prime contribu-tor to Hell’s welfare, Robin continues, “is constrained love, when as parentes do by compulsion coople two bodies, neither respectinge the joyning of their hartes, nor having any care of the continuance of their welfare” (sig. A3r). While authors of marriage manuals and other moral commentators on domestic af-fairs often insisted that children needed to consult their parents before marry-ing, these texts evidence a long, vociferous tradition deploring forced marriage and warning of its consequences.

Shakespeare further underscores how enforced marriage goes against fun-damental English values when he casts Hermia’s response in terms that recall both England’s political system and Theseus’s design for Athens, i.e., contrac-tual monarchy: “So will I grow, so live, so die, my lord, / Ere I will yield my virgin patent up / Unto his lordship, whose unwished yoke / My soul consents not to give sovereignty” (1.1.79–82). Just as the commonwealth originates in a covenant between the ruler and the people—Fortescue writes, “[s]o a people that will to erect itself into a kingdom . . . must always set up one man for the government of all that body” (20), and in the Laws of Ecclesiastical Polity, Rich-ard Hooker observes that is impossible “that any should have complete lawfull power but by consent of men” (1: 99)—so does marriage involve a conscious choice to grant sovereignty to the husband.30 Undoing the consent in one threatens undoing consent in the other. Enforced marriage, therefore, is not just bad social policy: it contradicts the fundamental premise of mixed monar-chy—the consent of the governed.


In sum, the crosscurrents of legal thinking and early modern marriage the-ory result in a double paradox: Theseus comes to the wrong result (siding with enforced marriage) but for the right reason (equity). Yet both choices offend against the Ancient Constitution: upholding the sanctity of law means contra-dicting the principle of consent, while upholding the principle of consent means denying the sanctity of law. Shakespeare will invert, but not resolve, these paradoxes toward the play’s end.31

3.

I want to move forward now to the denouement of the marriage plot. Theseus and his hunting party, including Egeus, discover the lovers in the woods, and immediately, Shakespeare reminds the audience (who may have forgotten be-cause of the hilarity of the intervening scenes) of the legal framework for this play. After Lysander admits that he and Hermia sought to escape “the peril of the Athenian law” (4.1.153), Egeus demands that Theseus enforce exactly that: “I beg the law, the law, upon his head” (4.1.155). As with Egeus’s initial demand that Theseus enforce the “ancient privilege of Athens,” there is a great deal at stake. For Theseus to do as Egeus wants means preserving the laws, and as we know from Plutarch, Shakespeare’s key source for this play, Theseus founded Athens on the explicit promise that he would follow the law. Furthermore, there are generic considerations as well. Obviously, bringing down the law on Lysander’s head means his death, and probably Hermia’s too. The play would thus become a tragedy like Romeo and Juliet (and many have noted the parallels between the two).32 Yet denying Egeus and accommodating the lovers might make good generic sense, but requires breaking his promise to preserve the laws as well as going well beyond the bounds of equity. Such a decision would entail, to quote Elizabeth, acting as if “all is lawful what we list” (343). Yet this questionable option allows the play to remain a comedy, and allows Hermia to marry who she wants, not who she must. But either option entails a significant cost: the former preserves the law, but destroys Hermia and Lysander; the lat-ter preserves their lives and allows their marriage to happen, but undermines the rule of law and thus the foundation of the commonwealth.

To be sure, there is no suspense, especially since Demetrius no longer wants Hermia (thanks to Puck’s chemical intervention). Theseus goes for the second option—“Egeus, I will overbear your will” (4.1.179)—and announces that the lovers will celebrate their nuptials when he marries Hippolyta. Generically,


and in terms of marriage theory, this is obviously the right result, yet at the same time, Theseus’s decision casts a slight but significant pall over the rest of the play, since the decision arises from the ruler’s whim. Theseus arrives at the right result but for the wrong reasons.

Theseus’s refusal to enforce “the ancient privilege of Athens” has all the earmarks of a ruler properly applying equity to temper the rigors of “the law,” and I doubt that anybody in the audience or on stage (other than Egeus) would have wished Theseus to act otherwise. Just as Lambarde prescibed, Theseus considered “the person, time, place, and other circumstances,” and then framed “such judgement as is convenient and agreeable to the same” (3). However, Shakespeare troubles what might have been uncontroversial by adjusting the terms of Theseus’s decision. Unlike, say, Plowden or Coke, who explicitly in-voke equity to moderate “the Severity of the Text, and [make] the Law tolera-ble” (Plowden 2: 467), Theseus does not declare that he is departing from a strict reading of the “ancient privilege” to avoid an obviously bad result. He does not say: “Egeus, I will overbear the law in this one instance.” Instead, The-seus obfuscates when he announces “I will overbear your will” because it is not Egeus’s will he is about to overbear, but the same law, the same “ancient privi-lege” of Athens that he had previously said he could not “extenuate.” Rather than openly admitting that he is about to contradict Athenian law, regardless of political consequence, Theseus deliberately mischaracterizes “the ancient privilege of Athens” as Egeus’s “will,” thus trivializing his decision and falsely transforming the matter into a case of bad parenting skills. The resonances of this seemingly simple switch go well beyond undermining Theseus’s credibility or allowing the young lovers to marry according to their desires.

First, Theseus’s reversal raises some serious questions for all the reasons outlined in the first part of this essay. The decision to overturn the law contra-dicts his earlier promise (in Plutarch) to uphold the law, and it contravenes the principle enshrined in the Ancient Constitution that rulers cannot suspend the law whenever they feel like it. The English coronation oath, we should re-member, asks the future monarch: “[w]ill you graunt and keepe, and by your oath Confirme, to the people of England, the Lawes and Customes to them graunted by the Kings of England your lawfull and religious predecessors . . .?” (A Collection, sig. A4v). It does not grant the right to pick and choose which laws, customs, or privileges the monarch will enforce. While equity allowed rulers and judges to soften the law, equity did not allow them to ignore it, even if they found the law repugnant.


Furthermore, Theseus’s silent replacement of law with “will” disturbs be-cause, in doing so, he veers uncomfortably close to the early modern definitions of tyranny. In the thirteenth century, Bracton declared, “there is no rex where will rules rather than lex” (Non est enim rex ubi dominatur voluntas et non lex; 2: 33), and Fortescue locates the origin of absolute monarchy (which he calls “Jus regale,” or “royal law”) in Nimrod, who “would not have [his realm] gov-erned by any other rule or law, but his own will” (85). Erasmus, in The Educa-tion of a Christian Prince, writes that “the main object of a tyrant is to follow his own caprices” (163), and Thomas Starkey will ask: “what ys more repugnant to nature, then a hole nation to be governyd by the wyl of a prynce, wych ever folowyth hys frayle fantasy & unrulyd affectys” (72). The Theseus of Midsum-mer Night’s Dream clearly does not fulfill the other attributes of tyranny; he is not someone who “hath no care of piety, justice or faith, but doeth al things for his owne private profit, revenge, or pleasure” (de la Primaudaye sig. 2Rr) or whose rule “is marked by fear, deceit, and machinations of evil” (Erasmus 163). Richard III or Macbeth he is not. The mad hilarity of the play’s comedy might seem to make such considerations irrelevant. But once Theseus overrules the “ancient privilege of Athens,” moving beyond the relatively limited scope al-lowed by equity, replacing the law with his will and rewriting Egeus’s demand for law as an example of will, he starts down a path that would have seemed eerily prescient to members of the audience familiar with North’s Plutarch. Stephen Greenblatt has proposed that A Midsummer Night’s Dream stages “the triumph of the prince over the law . . . [But] it is evidently an autonomy that dare not speak its name” (105), and that is because the name for this au-tonomy is tyranny.

Peter Holland has astutely argued that Shakespeare generates most of this play’s meaning through allusive implication rather than direct invocation. Shakespeare does not have to point to every particular of the Theseus myth be-cause this figure’s “mere presence . . . in A Midsummer Night’s Dream makes the whole of the Theseus myth available” (Holland 151). For example, Shakespeare departs from North’s Plutarch by naming Theseus’s Amazonian bride “Hip-polyta” rather than “Antiopa.” By doing so, Shakespeare inevitably reminds the audience of Theseus’s and his bride’s ill-fated son Hippolytus, even though this character is nowhere mentioned in the play. Hippolytus, Holland writes, is:

a character who both is and is not there, a shadow, an unavoidable future for the marriage so richly, lengthily and apparently gloriously celebrated at


the end of a play which deliberately, though only momentarily, invokes Theseus’s promiscuity and his brutality towards his lovers. . . . Once re-membered, Hippolytus doggedly refuses to be forgotten. (144, 145)

Theseus’s inversion of law and will functions analogously by anticipating the tawdry and politically charged ending of Theseus’s relationship with Athens.

While Theseus was imprisoned in the city of Epirus for attempting to carry away the king’s daughter (so much for his marriage), others in Athens were busily destabilizing his rule:

In this meane time there was one at Athens called Menestheus . . . . This Menestheus was the first that beganne to flatter the people, and did seeke to winne the favour of the communaltie, by sweete enticing words: by which devise he stirred up the chiefest of the cittie against Theseus (who in deede long before beganne to be wearie of him) by declaring unto them howe The-seus had taken from them their royalties and signiories, and had shut them up in suche sorte within the walles of a cittie, that he might the better keepe them in subjection and obedience in all things, after his will. The poor infe-riour sorte of people, he dyd stirre up also to rebellion, persuading them that it was no other then a dreame of libertie which was promised them: and how contrariwise they were clearely dispossest and throwen out of their own houses, of their temples, and from their naturall places where they were borne, to thend only, that in liewe of many good and loving lordes which they were wont to have before, they should now be compelled to serve one onely hedde, and a straunge lorde. (1: 62; emphasis added)

In short, Menestheus incites Athens against its ruler (and it seems Menes-theus did not have to work very hard to do so) by arguing that Theseus broke his promises to them. In place of preserving the law, he has (according to the accusation) abandoned the law and rules instead “after his will.” As for the poor, Menestheus asserts that Theseus had sold them a lie, a “dreame of liber-tie,” and in place of protecting their rights and their private property, he has them “throwen out of their own houses.” Ultimately, Plutarch’s Theseus could not subdue the city, and, “after he had made many wishes and curses against the Athenians,” left for the “Ile of Sciros,” where he fell from a great height; nobody knows whether by accident or by murder because nobody cared enough to investigate: “[t]here was no man at that time that dyd follow or pur-sue his death” (1: 65–66).


My point is that Theseus’s overruling the law with his will in A Midsummer Night’s Dream both anticipates and substantiates Menestheus’s charges against him. Essentially, Menestheus entices the city against Theseus by arguing that he lied when he said he would rule by law, and that subsequently Theseus has replaced law with tyrannical “will.” This charge closely resembles what Theseus does in A Midsummer Night’s Dream, and the fact that we agree with the out-come in Shakespeare’s play only adds to the complexity. An audience familiar with Plutarch might very well have speculated that it was precisely this kind of high-handedness with the law that led Athenians to tire of Theseus and made them a ready audience for Menestheus’s provocations. Granted, Theseus’s po-litically charged ending is no more a part of Shakespeare’s play than the out-come of Theseus’s (brief) marriage to Hippolyta/Antiopa, but Shakespeare, through his emphasis on law, and on his alteration of Antiopa to Hippolyta, invites his audience to recall what happened to Theseus after his marriage, thus casting a subtle but significant shadow on the happy ending of the play.

4.

Over the years, critics have largely moved from regarding A Midsummer Night’s Dream as a frothy comedy celebrating marriage to seeing it as a play exquisitely balancing levity with much darker themes.33 As A. D. Nuttall puts it, “the sup-pression of dark forces is not only incomplete at the beginning the play: there is a sense in which it remains incomplete throughout. The play is haunted to the end by that residual ten per cent” (52). I would like to take Nuttall’s insight one step further, and suggest that the problem of law and equity in A Midsummer Night’s Dream participates in a larger web of disturbing resonances that echo and reinforce each other. The law that starts the play’s action, the “ancient priv-ilege of Athens” that allows for the execution of disobedient daughters, consti-tutes another instance of the violence toward women characterizing nearly every relationship in A Midsummer Night’s Dream.34 Theseus infamously wooed Hippolyta “with [his] sword” (1.1.16); Helena tells Demetrius “the more you beat me, I will fawn on you. / Use me but as your spaniel; spurn me, strike me” (2.1.204–05); and the lullaby Titania’s fairies sing to her is shot through with threatening images and hints at the worst sort of sexual violence:

You spotted snakes with double tongue,Thorny hedgehogs, be not seen,Newts and blind-worms, do no wrong,


Come not near our fairy queen. Philomele, with melody, Sing in our sweet lullaby. (2.2.9–13)

The violence toward women, in turn, constitutes a specific instance of the gen-erally harsh conditions characterizing both the natural and supernatural worlds. Titania reminds us that even fairies must struggle for survival when she gives her attendants their instructions before her lullaby: “Some to kill cankers in the musk-rose buds, / Some war with rere-mice for their leathren wings / To make my small elves coats, and some keep back / The clamorous owl” (2.2.3–6). The dangers and difficulties the fairies face, however, pale before the calamities visited upon mortals because of the “brawls” (2.1.87) between Titania and Oberon. Because of their “dissension” (2.1.117), humans suffer dearth and want: “The ox hath therefore stretch’d his yoke in vain, / The ploughman lost his seat, and the green corn / Hath rotted ere his youth attain’d a beard. / The fold stands empty in the drowned field, / And crows are fatted with the murrion flock” (2.1.93–97). While there seem to be oases from the chaos, such as the household run by Demitrius’s dowager aunt, his description of Athenian law as “sharp” (1.1.162) fits the entire playworld of A Midsummer Night’s Dream. This is a tough world, one without much mercy.

And then there is the matter of how Theseus deals with the lower sort. We should remember that in Plutarch’s telling, Theseus included “the poore people and private men” in his project to turn Athens into a republic, and Menestheus uses their disappointment in Thesean rule to fuel a rebellion. Shakespeare’s Theseus treats the Rude Mechanicals in a disturbingly similar fashion. As in Plutarch, Shakespeare’s Theseus is initially generous toward this group (e.g., “I will hear the play; / For never any thing can be amiss / When simpleness and duty tender it” [5.1.81–83]); but during the “perfor-mance” (if such it can be called), Theseus quickly becomes the heckler-in-chief. To give but one example, after Pyramus dies, he says, rather cruelly, “With the help of a surgeon he might yet recover, and yet prove an ass” (5.1.311). The question goes beyond Theseus’s skill as a drama critic, because Theseus’s (indeed, the entire upper-class audience’s) treatment of these workers contrib-utes to the subtly but distinctly threatening atmosphere that hangs over the play. The Mechanicals have little confidence that if they offend, they would be treated with the same leniency Theseus will show the lovers. As they exclaim in chorus, if they “fright the Duchess and the ladies” (1.2.75), “That would


hang us, every mother’s son” (1.2.78).35 Given the Mechanicals’ dramatic abili-ties, their sense of vulnerability sounds ludicrous until one remembers that the ruler who could at will suspend an “ancient privilege” would likely have no problem having people executed if he felt like it. Or, at least, the Rude Me-chanicals have no assurance that he would follow the rule of law in their case.36

Finally, Theseus’s decision that he can in fact “extenuate” the law—unob-jectionable in the short run, problematic in the long—contributes to the over-all problem of closure in this play.37 Certainly, there is much within A Midsum-mer Night’s Dream that undoes any sense of an ending in “which all is turned to a joyfull ende, and the whole matter made knowen” (Terence sig. Biiiv), to quote a definition of comedy roughly contemporary with Shakespeare’s play. Peace in the fairy world, as critics have pointed out, happens only at the cost of Titania’s humiliation and the breaking of the bonds between Titania and her votaress.38 Peace in the human world depends upon the magically induced al-teration of Demetrius’s sentiments toward Helena—which does not give one great confidence in their future happiness—as well as the larger dehumaniza-tion and subjugation of women. As Puck says, “Jack shall have Jill; / Naught shall go ill; / The man shall have his mare again, and all shall be well” (3.2.461–63). Oberon may hope that “all the couples three / Ever true in loving be” (5.1.383–84), but Theseus’s reputation as a serial rapist suggests otherwise. To this list of items signaling “the incomplete, partial character of the dramatic conclusion enacted on the stage” (Kay 215), I would add Theseus’s replacement of law with will and his overstepping the bounds of both equity and the An-cient Constitution. Oberon and Puck may try make everything right at the play’s end by wishing good fortune on the lovers and begging forgiveness if “we shadows have offended” (5.1.399), but the play’s troubling of the distinction be-tween equity and tyranny, and its implicit illustration of how the best decisions can have ruinous consequences, suggests that these thematic shadows are not so easily dispelled.

N o t e s

This essay has benefited tremendously from the encouragement, wisdom, and patience of many people. I am very grateful to Laura Levine, Peter Platt, Daniel Vitkus, and an anonymous JEMCS reader for suggestions that made this essay significantly better. I am also indebted to Alex Feerst, Daniel Hulsebosch, and Ian Williams for their generously answering a query on privilege from a total stranger. Constance Jordan deserves special thanks for her help with this essay and for introducing me to the Ancient Constitution many years ago.


1. On the vulnerability of the “rude mechanicals,” see Patterson, 52–70 and Leinwand; on Elizabeth and her court, see Montrose and Hackett. (Patterson, Leinwand), or Eliza-beth and her court (Montrose, Hackett). Pearson was the first to discuss the dark side of the Theseus legend.

2. Only one of the recent spate of books on the law and Shakespeare or early modern literature devotes sustained attention to A Midsummer Night’s Dream: Raffield’s Shake-speare’s Imaginary Constitution. Raffield, however, focuses on the role of imagination, and not equity, in law-giving (133–52). The rest leave out Shakespeare’s comedy altogether. See, for example, Jordan and Cunningham; Kezar; Mukherji; Wilson Hutson; and Cormack. Schoeck omits all mention of A Midsummer Night’s Dream in his overview of Shakespeare and the law. Arnold is the only person other than Raffield to give this topic significant at-tention (10–17), and while I disagree with his conclusions, I am significantly indebted to his article. Greenblatt, drawing on Arnold’s article, briefly alludes to the question of law in Midsummer Night’s Dream (195).

3. See Buccola and White.4. Kornstein also notes that A Midsummer Night’s Dream “starts with a legal conflict”

and that the play “says something about the rule of law, irrational and inflexible laws, how to respond to an unjust law, and the fragility of law” (126), but his analysis does not situate the play within early modern discourses about constitutionalism, law, and equity. Instead, he argues that the play advocates “an imaginative, creative, activist approach to interpreting law” (129). White devotes a chapter to A Midsummer Night’s Dream, but he is interested in how the play accords with the actual laws of ancient Greece rather than with issues more contemporary to Shakespeare’s time (79–86).

5. On equity in Shakespeare’s plays, see Fortier; Platt; Jordan and Cunningham, “Eng-lish Law” 2–3; and Jordan, “Interpreting Statute.” I am very grateful to Professor Jordan for allowing me to read her article in advance of its publication.

6. While the Elizabethan title page of Smith’s book translates “De Republica Anglo-rum” as “The Manner of Government of the Realme of England” (38), dictionaries pub-lished in the sixteenth century all translate “republica” as “common weale” or “Common-wealth” (“Republica,” Lexicons of Early Modern English). The 1635 edition altered the title of the English translation to The common-wealth of England And the manner and governement thereof.

7. See Holland, 143. Miola notes that Plutarch’s Lives “directly provides material for Titus, Dream, Julius Caesar, Antony and Cleopatra, Coriolanus, Timon of Athens, and pos-sibly Lear” (176).

8. The canonical text on the Ancient Constitution remains Pocock’s The Ancient Con-stitution and the Feudal Law. See also Burgess; Sommerville; and Jordan, Shakespeare’s Monarchies.

9. I have consulted The Holinshed Project’s online 1577 and 1587 editions.10. The terms are drawn from Aquinas, On Princely Government (Fortescue 83n2). 11. Cromartie notes that England’s Catholic monarchs tended to privilege royal au-

thority, while the Protestant ones exhibited “a bias towards law-bound governments” (80). He hypothesizes that Elizabeth’s respect for judicial independence has to do with the fact that her legitimacy rested on an act of Parliament (94–95).

12. All references to A Midsummer Night’s Dream and Shakespeare’s other plays will be to The Riverside Shakespeare.

13. Sokol 172. Chancery courts were especially friendly toward widows seeking en-forcement of their right to be maintained after their husband’s death (Stretton 25–27).


14. Rastell’s book, first published in 1523, was reprinted five times before the “aug-mented” edition of 1579, which would be reprinted three more times in the sixteenth cen-tury (1592, 1595, and 1598), and “privilege” is among the newly included terms, suggesting its relatively recent prominence for Shakespeare’s audience. I am very grateful to Professor Constance Jordan for alerting me to this point.

15. Clegg 3–29.16. See Holinshed’s Chronicles. 17. Baker notes that the final recognition of habeas corpus as a judicial remedy belongs

to the Elizabethan era (Common Law Tradition 41; see also Halliday 155–60). 18. This text is conventionally referred to by the abbreviation “Leon.,” short for “Leon-

ard’s Reports,” as the reports were first compiled by one William Leonard, professor of law at Gray’s Inn.

19. How much could we reasonably assume Shakespeare and his audience knew about equity and privilege? According to the Sokols, “there was much greater awareness then in all ranks of society of the language and institutions of law” (3). Anyone entering a mar-riage, devising a will, or owning land would have acquired at least a passing acquaintance with the laws of each, and landless “merchants, masters, and their apprentices [needed] to understand a wide range of legal arrangements” (3). The Elizabethans were also an extraor-dinarily litigious people: a population of approximately four million people filed “over one million legal actions every year” (3). As for equity, Fortier notes how this concept “appears over and over in the writing of this period, not just in law, religion, and politics, but in plays and poems, in writing about women, the Irish, native Americans and Jews, and in the radi-cal writings of the 1640s and 1650s” (2).

20. While Wolsey acquiesced, he ended his submission with a pointed reminder that Henry VIII should remember “that there is both heaven and hell” (122).

21. See Klinck 73–106 and Fortier 65–76 for histories of this controversy. 22. See also Baker, “Introduction” 94: 81.23. Baker, “Introduction” 81. 24. The authorship of the “Replication” remains uncertain, and Guy speculates that

St. Germain might have written it, but the matter remains unresolved (56–57). 25. In his report on Stradling v. Morgan (1560), Plowden noted that “the sages of the

law heretofore have construed statutes quite contrary to the letter is some appearance . . . they have ever been guided by the intent of the legislature, which they have always taken according to the necessity of the matter, and according to that which is consonant to reason and good discretion” (Plowden 1: 205; Cross 9–10).

26. Cf. Raffield, who reads this law as evidence that Theseus “presides over a rigid and inequitable legal system” (Images and Cultures of Law 118).

27. While Coke and others specifically have statutes in mind, and while it is certainly possible that the “ancient privilege of Athens” existed as a written law (Michael Hoffman’s 1999 film A Midsummer Night’s Dream resolves the ambiguity by having Theseus consult a large tome), I think that Shakespeare focuses on the more general question of how one interprets a harsh law rather than on the specific differences between interpreting statu-tory or common law.

28. The paradoxical symmetry with the marriage plot’s ending further strengthens the case for Theseus equitably amending the law rather than Egeus omitting the option of for-ever abjuring “the society of men” (1.1.66). The Sokols also think that the nunnery option was not originally part of the law, but something Theseus adds “to allow Hermia an alter-native to the death penalty for disobedience” (37). So does Montrose, although he gives this


act a different evaluation: “Theseus expands Hermia’s options only in order to clarify her constraints” (37).

29. In 1591, for example, Gibbon proposed: “If a man may give his goods to whome hee will, he may as well bestow his Children where hee thinketh best, for Children are the goods of the Parents” (sig. B4r).

30. Jordan, “Household” 324.31. On Shakespearean paradox generally, see Platt. 32. See for example Bassnett 57–70 and Garber 213–14, 234.33. Levine, for example, has stressed the role of violence in this play, while Montrose,

Patterson, and Leinwand have shown how A Midsummer Night’s Dream draws on the anxi-eties resulting from a culture ruled by an aging queen or the Crisis of the 1590s with its attendant dearth, starvation, and social unrest.

34. Levine 211. 35. Leinwand was the first to take seriously the Rude Mechanicals’ fears (Leinwand

147). 36. The Mechanicals’ fears would likely remind Shakespeare’s audience (who would

have needed little reminding in 1596) of how the artisans who genuinely threatened Eliza-bethan authorities during the Crisis of the 1590s were treated. And not only artisans. As Wilson reminds us, in 1597 the authorities jailed Ben Jonson and others for performing “very seditious and slanderous matter” (203), and William Collingbourne was hanged in 1484 for “making a foolish rhyme” (Leinwand 149). The class antagonisms implied by the parlous treatment of the play’s workers by their social betters overlaps with Shakespeare’s “sensitivity to class tension and populist sentiments” (Fitter 180) in Romeo and Juliet. As a supplement to Fitter’s excellent article, see Herman, “Tragedy and the Crisis of Authority in Romeo and Juliet. “

37. On Shakespeare’s endings, see Weimann; Kay; and Beckerman. 38. See Kott 107–26 and Garner 127–44.

W o r k s C i t e d

A Collection out of the Book Called Liber Regalis. London, 1661. Aristotle. The Art of Rhetoric. Trans. John Henry Freese. Cambridge: Harvard UP, 1932. Arnold, Oliver. “The King of Comedy: The Role of the Ruler and the Rule of Law in Shake-

speare’s Comedies.” Genre 31 (1998): 1–31. Ashley, Robert. Of Honour. Ed. Virgil B. Heltzel. San Marino: Huntington Library, 1947. Baker, John H. The Common Law Tradition: Lawyers, Books and the Law. Rio Grande:

Hambledon, 2000.———. An Introduction to English Legal History. 3rd ed. London: Butterworths, 1990. ———. “Introduction.” Reports of Sir John Spelman. Ed. Baker. Vol. 94. 23–396. Bassnett, Susan. Shakespeare: The Elizabethan Plays. New York: St. Martin’s, 1993. Beckerman, Bernard. “Shakespeare Closing.” Kenyon Review ns 7.3 (1985): 79–95. Bracton, Henry de. On the Laws and Customs of England. Trans. Samuel E. Thorne. Cam-

bridge: Harvard UP, 1968. 2 vols. Buccola, Regina, ed. A Midsummer Night’s Dream. London: Continuum, 2010.Buchanan, George. The History of Scotland Written in Latin by George Buchanan. Trans. J.

Fraser. London, 1690. Burgess, Glenn. The Politics of the Ancient Constitution: An Introduction to English Political

Thought, 1603–1642. University Park: Penn State UP, 1992.


Calvin, Jean. Institutes of the Christian Religion. Ed. John McNeill. Trans. Ford Battles. Philadelphia: Westminster, 1960. 2 vols.

Cavendish, George. The Life and Death of Cardinal Wolsey. Two Early Tudor Lives. Ed. Richard S. Sylvester and Davis P. Harding. New Haven: Yale UP, 1962.

Clegg, Cyndia. Press Censorship in Elizabethan England. Cambridge: Cambridge UP, 1997.Coke, Sir Edward. The Selected Writings of Sir Edward Coke. Ed. Steve Sheppard. India-

napolis: Liberty, 2003. 3 vols. Collinson, Patrick. “The Monarchical Republic of Queen Elizabeth I.” Bulletin of the John

Rylands University Library 69.2 (1987): 394–424. Cormack, Bradin. A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Com-

mon Law, 1509–1625. Chicago: Chicago UP, 2007.Cromartie, Alan. The Constitutionalist Revolution: An Essay on the History of England, 1450–

1642. Cambridge: Cambridge UP, 2006. Cross, Sir Rupert. Statutory Interpretation. London, Butterworths, 1987. Egerton, Sir Thomas. A Discourse upon the Exposicion & Understandinge of Statutes. Ed.

Samuel E. Thorne. San Marino: Huntington Library, 1942. Elizabeth I. Elizabeth I: Collected Works. Ed. Leah S. Marcus, Janel Mueller, and Mary

Beth Rose. Chicago: U of Chicago P, 2000. Erasmus, Desiderius. The Education of a Christian Prince. 1516. Trans. Lester K. Born. New

York: Norton, 1963.Fitter, Chris. “‘The quarrel is between our masters and us their men’: Romeo and Juliet,

Dearth, and the London Riots.” English Literary Renaissance 30.2 (2000): 154–83. Fortescue, Sir John. On the Laws and Governance of England. Ed. Shelley Lockwood. Cam-

bridge, 1997. Fortier, Mark. The Culture of Equity in Early Modern England. Burlington: Ashgate, 2005. Garber, Marjorie. Shakespeare After All. New York: Pantheon, 2004. Garner, Shirley Nelson. “A Midsummer Night’s Dream: Jack Shall Have Jill; / Nought Shall

Go Ill.” Kehler 127–44. Gibbon, Charles. A Work Worth the Reading. London, 1591. Grafton, Anthony. “Humanism and Political Theory.” The Cambridge History of Political

Thought 1450–1700. Ed. J. H. Burns with the assistance of Mark Goldie. Cambridge: Cambridge UP, 1991. 9–65.

Greenblatt, Stephen J. Shakespeare’s Freedom. Chicago: Chicago UP, 2010. Hackett, Helen. “A Midsummer Night’s Dream.” A Companion to Shakespeare’s Works: The Comedies. Ed. Richard Dutton and Jean E. Howard. Oxford: Blackwell, 2003. Vol. 3. 338–57. Hadfield, Andrew. Shakespeare and Republicanism. Cambridge: Cambridge UP, 2005. Hall, Edward. Hall’s Chronicle. London: J. Johnson et al., 1802. Halliday, Paul. Habeus Corpus: From England to Empire. Cambridge: Harvard UP, 2010. Hartley, T. E., ed. Proceedings in the Parliaments of Elizabeth I. Wilmington: Michael Gla-

zier, 1981. 3 vols. Herman, Peter C. “Tragedy and the Crisis of Authority in Shakespeare’s Romeo and Juliet.”

Intertexts 12.1–2 (2008): 89–109.Hoffman, Michael, dir. A Midsummer Night’s Dream. Fox Searchlight Pictures, 1999. Holinshed’s Chronicles of England, Scotland and Ireland. The Holinshed Project. Web. Holland, Peter. “Theseus’s Shadows in A Midsummer Night’s Dream.” Shakespeare Survey

47 (1995): 139–52.


Hooker, Richard. Of the Laws of Ecclesiastical Polity. Ed. Georges Edelen et al. Cambridge: Harvard UP, 1977–82. 4 vols.

Hutson, Lorna. The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama. Oxford: Oxford UP, 2007.

Jordan, Constance, and Karen Cunningham, eds. The Law in Shakespeare. New York: Pal-grave, 2007.

———, and Karen Cunningham. “English Law in Shakespeare’s Plays.” Jordan and Cun-ningham 1–19.

Jordan, Constance. “The Household and the State: Transformations in the Representation of an Analogy from Aristotle to James I.” Modern Language Quarterly 54.3 (1993): 307–26.

———. “Interpreting Statute in Measure for Measure.” Shakespeare and the Law: A Conver-sation among Disciplines and Professions. Ed. Bradin Cormack, Martha C. Nussbaum, and Richard Strier. Chicago: U of Chicago P, 2013. 101–20.

———. Shakespeare’s Monarchies: Ruler and Subject in the Romances. Ithaca: Cornell UP, 1997.

Kay, Dennis. “‘To hear the rest untold’: Shakespeare’s Postponed Endings.” Renaissance Quarterly 37.2 (1984): 207–27.

Kehler, Dorothea, ed. A Midsummer Night’s Dream: Critical Essays. New York: Garland, 1998.

Kezar, Dennis, ed. Solon and Thespis: Law and Theater in the English Renaissance. Oxford: Oxford UP, 2007.

Klinck, Dennis R. Conscience, Equity and the Court of Chancery in Early Modern England. Burlington: Ashgate, 2010.

Kornstein, Daniel J. Kill All the Lawyers? Shakespeare’s Legal Appeal. Princeton: Princeton UP, 1994.

Kott, Jan. “Titania and the Ass’s Head.” Kehler 107–26. Lambarde, William. Archeion or, A Discourse upon the High Courts of Justice in England. Ed.

Charles H. McIlwain and Paul L. Ward. Cambridge: Harvard UP, 1957. Leinwand, Theodore. “‘I Believe We Must Leave the Killing Out’: Deference and Accom-

modation in A Midsummer Night’s Dream. ” Kehler 145–64. Levine, Laura. “Rape, Repetition, and the Politics of Closure in A Midsummer Night’s

Dream.” Feminist Readings of Early Modern Culture: Emerging Subjects. Ed. Valerie Traub, M. Lindsay Kaplan and Dympna Callaghan. Cambridge: Cambridge UP, 1996. 210–28.

Lexicons of Early Modern English. Web. Miola, Robert S. “Reading the Classics.” A Companion to Shakespeare. Ed. David Scott

Kastan. Oxford: Blackwell, 1999. 172–85. Montrose, Louis A. “’Shaping Fantasies’: Figurations of Gender and Power in Elizabethan

Culture.” Representing the English Renaissance. Ed. Stephen Greenblatt. Berkeley: U of California P, 1988. 31–64.

More, Sir Thomas. Responsio ad Lutherum. Trans. Sister Scholastica Mandeville. Complete Works of St. Thomas More. Ed. John M. Headley. New Haven: Yale UP, 1969. Vol. 5.

Mukherji, Subha. Law and Representation in Early Modern Drama. Cambridge: Cam-bridge UP, 2006.

Mulcaster, Richard. The First Part of the Elementarie. London, 1582.Nuttall, A. D. “A Midsummer Night’s Dream: Comedy as Apotrope of Myth.” Shakespeare

Survey 53 (2000): 49–59.


Patterson, Annabel. Shakespeare and the Popular Voice. Oxford: Blackwell, 1989.Pearson, D’Orsay “‘Unkinde’ Theseus: A Study in Renaissance Mythography.” English Lit-

erary Renaissance 4.2 (1974): 276–98. Peltonen, Markku. “Citizenship and Republicanism in Elizabethan England.” Republican-

ism: A Shared European Heritage. Ed. Martin van Gelderen and Quentin Skinner. Cambridge: Cambridge UP, 2002. Vol. 1. 85–106.

Platt, Peter G. Shakespeare and the Culture of Paradox. Burlington: Ashgate, 2009.Plowden, Edmund. The Commentaries or Reports of Edmund Plowden. London: Brooke,

1816. 2 vols. Plutarch. Plutarch’s Lives of the Noble Grecians and Romans Englished by Sir Thomas North.

Ed. George Wyndham. Rpt. New York, 1967. 5 vols. Pocock, J. G. A. The Ancient Constitution and the Feudal Law: English Historical Though in

the Seventeenth Century. Cambridge: Cambridge UP, 1957. Primaudaye, Pierre de la. The French Academie. Trans. T. B. London, 1589. Raffield, Paul. Images and Cultures of Law in Early Modern England: Justice and Political

Power, 1558–1660. Cambridge: Cambridge UP, 2004. ———. Shakespeare’s Imaginary Constitution: Late Elizabethan Politics and the Theatre of

Law. Oxford: Hart, 2010. 133–52. Rastell, John. An Exposition of Certaine Difficult and Obscure Words, and Termes of the

Lawes of this Realme, newly set foorth and augmented. London, 1579. Reports and Cases of Law Argued and Adjudged at the Courts of Westminster in the Times of

the Late Queen Elizabeth and King James. London, 1687.Riverside Shakespeare. Ed. G. Blakemore Evans. Boston: Houghton, 1974. Ryan, Kiernan. Shakespeare’s Comedies. New York: Palgrave, 2009. Saint Germain, Christopher. The Dialogues in English, between a Doctor of Divinity, and a

Student in the Lawes of England. London, 1580. ———. “Replication of a Serjeant.” Ed. John A. Guy. Christopher St. German on Chancery

and Statute. London: Selden Society, 1985. 99–105. Schoeck, R. J. “Shakespeare and the Law: Overview.” Shakespeare International Yearbook 1

(1999): 219–39. Selden, John. The Table-Talk of John Selden. Ed. S. W. Singer. London: Pickering, 1856. Smith, Sir Thomas. De Republica Anglorum. Ed. Mary Dewar. Cambridge: Cambridge UP,

1982. Sokol, B. J., and Mary Sokol. Shakespeare, Law and Marriage. Cambridge: Cambridge UP,

2003. Sommerville, Johann P. Politics and Ideology in England 1603–1640. London: Longman,

1986. Spelman, Sir John. The Reports of Sir John Spelman. Ed. John H. Baker. London: Selden

Society, 1978. Vols. 93–94. Starkey, Thomas. Dialogue between Pole and Lupset. Ed. T. F. Mayer. Camden 4th series.

Vol. 37. London: Royal Historical Society, 1989. Stretton, Tim. Women Waging Law in Elizabethan England. Cambridge: Cambridge UP,

1998. Tell-Trothes New-yeares Gift. London, 1593. Terence. Andria, Trans. Maurice Kyffin. London, 1588. Weimann, Robert. “Thresholds to Memory and Commodity in Shakespeare’s Endings.”

Representations 53 (1996): 1–20. Whetstone, George. An Heptameron of Civill Discourses. London, 1582.


White, Edward J. Commentaries on the Law in Shakespeare. 2nd ed. St. Louis: F. H. Thomas, 1913.

White, Martin. A Midsummer Night’s Dream. New York: Palgrave, 2009. Wilson, Luke. Theaters of Intention: Drama and the Law in Early Modern England. Stan-

ford: Stanford, UP, 2000. Wilson, Richard. “The Kindly Ones: The Death of the Author in Shakespearean Athens.”

New Casebooks: “A Midsummer Night’s Dream.” Ed. Richard Dutton. New York: St. Martin’s, 1996. 198–222.

Equity and the Problem of Theseus in A Midsummer Night's Dream: Or, The Ancient Constitution in...

Documents

Transcript of Equity and the Problem of Theseus in A Midsummer Night's Dream: Or, The Ancient Constitution in...