Courts, Jurisdictions, and Law in John Milton and His Contemporaries
Alison A. Chapman
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Names: Chapman, Alison A., author.
Title: Courts, jurisdictions, and law in John Milton and his contemporaries / Alison A. Chapman.
Description: Chicago ; London : The University of Chicago Press, 2020. | Includes bibliographical references and index.
Identifiers: LCCN 2020001534 | ISBN 9780226729152 (cloth) | ISBN 9780226729299 (paperback) | ISBN 9780226729329 (ebook)
Subjects: LCSH: Milton, John, 1608–1674—Knowledge—Law. | English literature—17th century—History and criticism. | Law in literature. | Law and literature—England.
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In memory of Lee Barton Chapman
Throughout this book I have silently modernized typography when dealing with early modern printed books: e.g., “haue” appears as “have,” “iustice” as “justice,” and “lavv” as “law.” Otherwise, I have preserved early modern spelling. I have expanded standard abbreviations and symbols: e.g., “&” has been converted to “and.” I have followed modern conventions about capitalizing titles. I have converted italics to regular font only for long stretches of italics; incidental italicized words have been preserved as they appear in the original text.
When using documents from Life Records and Milton in Chancery, I have reproduced them as found there with two exceptions: (1) I have changed superscripts to standard-size font; (2) when encountering a “con” or “co¯n” suffix where modern spelling would supply “cion,” I have silently updated it (examples include changing “descripcon” to “descripcion” and “sequestraco¯n” to “sequestracion”). All translations are my own unless noted otherwise. When citing Milton’s prose, I have done so by volume and page numbers. When citing Milton’s poetry, I have done so by book number and line number(s), in the case of Paradise Lost, or, in the case of the shorter poems, simply by line number.
The conclusion of this book examines the Columbia Manuscript, an early modern notebook miscellany in which some of Milton’s political writings appear. There, in addition to my standard practice of regularizing superscripts, I have also silently converted the character “ƿ” to “th.” So, for instance, “ ƿ e ” appears in the text as “the.” The person who transcribed the excerpts in the
x A Note on Texts
Columbia Manuscript used a personal symbol to indicate the prefix “con,” and I have also silently converted this. As with Life Records and Milton in Chancery, I have updated “con” and “co¯n” suffixes. Otherwise, I have preserved his spellings and abbreviations, although when needed for clarity, I have marked expansions in brackets.
Abbreviations
CM, John Milton, “John Milton Letters, 1649–1659,” a notebook known as the Columbia Manuscript. Columbia Rare Books Library X823M64 S62, Columbia University, New York.
CPEP, John Milton, The Complete Poetry and Essential Prose of John Milton, ed. William Kerrigan, John P. Rumrich, and Stephen M. Fallon. New York: Modern Library, 2007.
CPW, John Milton, The Complete Prose Works of John Milton, ed. Don Wolfe et al. 8 vols. New Haven: Yale University Press, 1953–82.
LR, Joseph Milton French, ed., The Life Records of John Milton. 5 vols. New Brunswick, NJ: Rutgers University Press, 1966.
MC, Joseph Milton French, Milton in Chancery: New Chapters in the Lives of the Poet and His Father. New York: Modern Language Association, 1939.
PSD, John Milton, Joannis Miltoni Angli Pro Se Defensio. London, 1655.
Preface:
Making Sense of Many Laws
One goal of this book is to introduce readers to an early modern world whose jurisprudence was much less standardized than our own. The entries below explain some of the principal kinds of law operative in seventeenth-century England and key terms that I use to discuss them.
Roman law. To understand the laws of Europe, both secular and sacred, we have to appreciate the foundational role that Roman law played in early modern legal thinking and practice. During the classical period and the early days of empire, Rome was regulated by a sprawling, heterogeneous collection of statutes, legal customs, and courtroom procedures. In the sixth century, this body of law assumed a more clearly defined shape when the emperor Justinian ordered the compilation of the Corpus Juris Civilis—literally, the “body of civil laws,” those laws that govern the civis—thereby digesting all of the various laws that had regulated a vast, diverse society into a single authoritative body of texts.
Canon law. In the twelfth-century Bolognese Renaissance, church scholars discovered the Corpus Juris Civilis and realized that with some adaptation, Roman jurisprudence could serve as an effective foundation for the emerging canon law of the church. For example, the canonical ius patronatus, which regulated the transfer of gifts and property between a designated lay patron and the church, was modeled on the Roman laws of patronage. As the church extended its reach, the Roman-based jurisprudence of the canon law flowed with it and became a kind of universal connective tissue binding together laity and clergy in all of their complex
interactions. The English Reformation did not lead to a radical change in the existing canon law. Naturally, after the 1540s thorny cases in Protestant England no longer traveled up a chain of appeal that ended at the Vatican, and there was a certain amount of jurisprudential drift between English canon law and Continental canon law. However, on balance the two bodies of canon law were similar enough that canonists in Protestant England continued to rely on the learning of their European counterparts. The jurisdiction of the canon law courts was substantially reduced in 1641 by the Long Parliament, although as recent scholarship has shown, certain areas, such as tithes and probate, remained vibrant.
Civil law (capital “C”). The unified, Roman-based jurisprudence of the church provided a model for the secular nation-states. Earlier in the medieval period, the interactions of various political orders was made even more difficult by the coexistence of various legal systems. Over the course of several centuries, most of the nation-states of Europe followed the lead of the Catholic Church and adopted the Corpus Juris Civilis as their basic jurisprudential scaffolding. The Corpus Juris Civilis was supplemented over time by hundreds of juridical commentaries in something of the same way that the Bible had been buttressed by theological commentaries. This collected body of texts came to be known as the “Civil law,” the law that regulated most of the civil societies of the Continent. In this book, I echo early modern English practice and use the terms “Roman law” and “Civil law” more or less interchangeably.
Ius commune. The ius commune refers to the shared system of legal thought that spanned most of Europe, and it comprises the secular Civil law and the sacred canon law, both of them resting atop the Corpus Juris Civilis. (Legal historians sometimes use the related term “Romano-canon law.”) Since ius commune in Latin means “common law,” the catchphrase illustrates the degree to which Roman law was the jurisprudential glue holding together much of Europe. It also exemplifies the difficulties that modern readers can face when confronted with the early modern jural world since the “common law” of the Continent was strikingly different from the “common law” of England.
Common law. This was the official legal system of early modern England although as this book argues, it was by no means the only one. For example, the common law landscape was dotted with Civil law courts such as the two university courts of Oxford and Cambridge and the court of the Admiralty. Common law was uncodified in the sense that it was not officially fixed by a single body of texts such as the Corpus Juris Civilis of
the Continent. Instead, common law was based on case law, meaning that it had accreted over centuries on the basis of courtroom decisions, and while many of these decisions had been recorded in law reports written by individual jurists such as Sir Edward Coke, these reports were not themselves formal expressions of what the law said. Some scholars use the term “common law” in a restrictive way to exclude the growing body of statutes. However, because early modern common lawyers and judges frequently cited statutes in their writings and because most MPs thought of their legislative acts as contributions to the corpus of the common law, I use “common law” to encompass both case law and statutory law.
Natural law. Despite its name, natural law is not an actual legal system. It is instead the belief that God created the universe in accordance with certain fundamental principles—i.e., that there is a “law” that regulates all of “nature”—and that these principles are discoverable by human reason. Natural law assumed new jurisprudential relevance in the seventeenth century as jurists such as Hugo Grotius and John Selden used it as a conceptual yardstick for measuring the validity of purely human and applied laws. Thus natural law was behind the emergence of an early modern discourse of inalienable human rights and the development of international law, since both human rights and international law presumed a legal order that transcended the dictates of any one national code.
Positive law. Positive law literally means law that is “posited” by a human institution. The English Parliament added to the nation’s body of positive law each time it created a statute, as did judges each time they issued a ruling in a case that could then serve as a precedent. At least in theory, positive law is different from natural law since while positive law is the result of localized human enactments, natural law is an expression of cosmic natural principles.
civil law (lowercase “c”). At various points in this book, I will be concerned with matters that did not rise to the level of criminal offenses. In these cases, I use the term “civil law” to indicate private matters that were prosecuted by individuals, as opposed to criminal threats to the commonwealth that were prosecuted by the state. This lowercase “civil law” must not be equated with uppercase “Civil law,” the collected legal traditions of the European states. I risk this confusion only because the civil/criminal division is such a standard part of our modern lexicon that it offers the best means to talk about different categories of offenses.
Equity. As I have wrestled with the terminological predicaments of ius commune/common law and civil law/Civil law, I have often wished that
early modern jurisprudence offered more available labels to choose from when discussing its different aspects. “Equity” provides another case in point. “Equity” in early modern English contexts could mean the specific approaches and remedies available only to judges in courts of equitable jurisdiction such as Chancery or the Court of Requests. But “equity” could also refer to those broad ideas of fairness and justice that were shared by all legal systems. In the chapters below, I take up both forms of equity, and I have worked to make it clear from the context which kind I have in mind.
Introduction
One of the greatest obstacles that modern readers face when trying to understand early modern English courts and law is our tendency to project backward an idea of law as a unified fabric of norms with a relatively well organized and consistent judicial apparatus. While law in the modern world has its share of internal contradictions and jurisdictional struggles (e.g., tussles between different US courts or federal agencies), these are far less pronounced than the realities that early modern men and women took for granted. A comparison of two seventeenth-century English courts—the Court of the Admiralty, which followed the procedures of the Civil (or Roman) law, and King’s Bench, a top common law court—throws these realities into high relief. In the Civilian Admiralty, clerks compiled a dossier of evidentiary documents written in English; the defendant could testify under oath on his own behalf; witnesses could be compelled with subpoenas; and the verdict was given by a judge who could order what we would call specific performance or an injunction (respectively, orders that someone either do something or quit doing it) but who could not ordinarily award monetary damages or apply capital punishment. King’s Bench differed in each respect. Evidence was strictly oral and, at least at the beginning of the early modern period, apt to be conducted in law French; the defendant himself could not testify, owing to concerns about selfincrimination; there was no judicial means to compel witness testimony; the verdict was given by a lay jury; and while the judge could sentence offenders to pay damages or send them to prison or the gallows, he did not have injunctive powers. In London, these wildly different procedures could occur at the
same time in courtrooms just a few miles apart.1 Moreover, these differences in legal procedure were matched by differences in legal substance, meaning that the “contents” of the Civil law, or what it said, could be as unfamiliar to common lawyers as the procedural methods by which those “contents” were applied.
As this example indicates, the jural world of seventeenth-century England was a complex jurisdictional patchwork in which multiple legal systems (e.g., common law, Civil law, canon law, equity, forest law, merchants’ law, etc.) were administered by various judicatures (e.g., Chancery, King’s Bench, Admiralty, manorial courts, franchise courts, etc.). And the relationships between these legal systems and their associated courts constantly shifted as each one struggled to protect or enlarge its own remit, usually at the expense of others. The common law courts were acquiring greater control over adjudication, but this steady shift in the balance of judicial power only heightened everyone’s sensitivity to the boundary lines between different courts and different legal systems. Eyeing the period’s variegated legal terrain, historian Charles Gray observes that law in sixteenth- and seventeenth-century England was unique because it was “more deeply federalistic than [in] earlier and later periods.” As a result, “jurisdiction was taken more seriously, its problems handled more delicately, because the mixed nature of the system was perceived as an essential and legitimate feature of it.”2 Building on Gray’s work, Bradin Cormack has argued that many literary works written between 1509 and 1625, including ones by More, Spenser, and Shakespeare, are animated by contemporary jurisdictional struggles and in turn helped to reinforce them. Cormack makes a powerful case that thinking productively about literature and law in the early modern period requires thinking about literature and many different kinds of law.3
As this book argues, one of the best ways for modern readers to understand the jurisdictional variety of seventeenth-century England—and the challenges and opportunities this variety presented for those committed to justice and to social, religious, and political change—is to read the works of John Milton. In each of the chapters that follow, I take up one or more of Milton’s
1. In a city such as Durham, various courts could even sit side by side. See A. Green, “Law and Architecture.”
2. Gray, Writ of Prohibition, xv. See also Dawson, History of Lay Judges, 2–3. On the problems this variety presented to early modern state formation, see Lemmings, Law and Government.
3. Cormack, Power to Do Justice
works—focusing primarily on his prose—to show how he gives careful attention to the different systems of law he saw around him and how he uses their terms and assumptions to structure his thinking.4 The nature of my rhetorical project will become clearer if I imaginatively posit and then answer a series of follow-up “Why?” questions. First, “Why was Milton so predisposed to think about different legal systems?” His biography offers a partial answer. Partly by happenstance and partly by predilection, Milton had a remarkably varied exposure to different forms of law. Many of his family and friends had been educated at the Inns of Court and then practiced at common law; he, his father, and brother all pursued cases in the equity court of Chancery; his early patron and neighbor, the earl of Bridgewater, was the president of a prerogative court; as Latin Secretary, he wrote about events that raised questions of international law and maritime law; his defenses of the English people and his work as a licenser for the Commonwealth government all required a deep familiarity with statute law; and his writings attest to his deep reading in the major texts of Roman law and canon law.5 Because of this exceptionally wellstocked jurisdictional toolkit, Milton was able to bring many vocabularies of law to bear on the problems before him. However, this is not a complete answer to the “Why?” question posed above, for simply asserting that Milton understood many kinds of law does not explain why he felt compelled to use them. I will return to this issue in more detail below; for now, the placeholder answer is that, somewhat paradoxically, different systems of law provided Milton with highly flexible ways to think about different questions of liberty, a subject that occupied him intensely throughout his lifetime.
Another, related “Why?” question is “Why Milton?” In other words, why have I chosen to zero in on this particular author, out of all the early modern writers who had a pronounced interest and competence in legal matters (Shakespeare, Donne, and Jonson spring immediately to mind in this
4. Despite gains in recent years, the body of criticism on Milton’s extensive interests in law still remains small. While I signal specific critical debts in the chapters that follow, I here acknowledge more general debts to the following: Greenberg, “Law”; Kahn, Wayward Contracts; Rosenblatt, Torah and Law in Paradise Lost; Shawcross, Development; and Jenkins, Inheritance Law.
5. Milton’s legal biography is explored in more detail in Chapman, Legal Epic, 16–25. Christopher N. Warren has demonstrated Milton’s sensitivity to questions of international law in his Literature and the Law of Nations. On his experiences suing in England’s equity courts, see French, Milton in Chancery, and Chapman, “Lay Reader’s Guide.” In subsequent chapters, I take up his exposure to laws relating to censorship/licensing and to the corpuses of Roman and canon law.
regard)?6 To this, I make three answers. First, while this book is focused on Milton, it is not only about Milton. To give some examples, in the next chapter, I compare Milton’s ideas of defamation with George Herbert’s and John Donne’s; in chapter 5, I contrast his use of Roman law in his third Latin defense, Pro Se Defensio, to the trial scene in Jonson’s Poetaster; and in chapter 7, I use the 1661 conviction of John Bunyan to show the advantages and risks inherent in Milton’s ideas for restructuring England’s courts. Second, Milton is my primary subject of study because he simply had an outsized interest in the way that different systems compared with one another. Arguably more than any other major figure of the seventeenth century, he thought a lot about questions of jurisdiction, about the boundary lines that divided different spheres of influence and collections of legal norms. Third, Milton lived through exceptionally tumultuous times, and as a politically engaged citizen and then as an employee of the Interregnum government, he left behind a huge volume of treatises probing the relative rights of individuals, church, and state. As a result, a critic such as myself interested in his views of civil justice and jurisdiction has a deep and wide archive in which to search.
A final question is “Why Milton’s prose?” Since with the possible exception of Areopagitica, Milton’s poetry has had a more enduring appeal than his prose, why have I chosen to omit from consideration works such as Samson Agonistes and Paradise Regained? (My focus on the prose is not absolute, for Paradise Lost figures in chapter 6. It offers, I argue, one of his most nuanced reflections on the canon law of tithes.) This book concentrates on Milton’s prose because his jurisdictional interests are, on the whole, more visible there than in his poetry. Milton aims his prose tracts at what he regarded as urgent social issues, and when he is thinking in this vein, he often uses the varying assumptions and vocabularies of different legal systems to help him build his arguments. My focus on the prose also distinguishes this book from my previous one, The Legal Epic: Paradise Lost and the Early Modern Law. There my main interest was in the way that Milton uses law in his epic poem to help justify the ways of God to men. As a result, I cast prose works only in the oc-
6. While the body of works on Shakespeare’s legal involvements is too large to do justice to in a single note, readers can profitably start with Hutson, Invention of Suspicion; Maus, Being and Having; and Mukherji, Law and Representation in Early Modern Drama. See also the essays collected in Strier, Shakespeare and the Law and Hutson, Oxford Handbook. For discussions of Donne’s jurisdictional awareness, see Kneidel, John Donne. I open chapter 5 with a consideration of the trial scene in Jonson’s Poetaster and note there existing studies of Jonson’s familiarity with both English and Roman law.
casional supporting role, often with an uneasy awareness that I was not giving them the attention they deserved. For example, in The Legal Epic, I mentioned Milton’s neglected early treatise Apology against a Pamphlet only in passing as an example of how he often installs legal metaphors at the beginning of works, as if to help him think his way into his subject. However, this glancing treatment did not do justice to the way that legal reasoning informs the treatise’s argument at a very deep level, a subject I explore in the next chapter. Similarly, in The Legal Epic I focused more on the role that law as a whole plays in his theodicy and less on his awareness of jurisdictional differences, my primary quarry here. A shift in terminology exemplifies the different arguments of these two books. In The Legal Epic, I used the catchall term “Romano-canon law” to refer to the consolidated sacred/secular law of the Continent because I was interested in this network of legal ideas as a whole. However, here I turn to what Milton saw as the tensions internal to this network, and so I talk about “Roman law” on the one hand and “canon law” on the other.
Two Brief Examples
At this point, a pair of examples can usefully illustrate the phenomenon explored in this book. Excerpts from Milton’s least-studied divorce tracts, The Judgment of Martin Bucer and Colasterion, demonstrate both his jurisdictional turn of mind and the particularly technical way in which it is often expressed. In both cases, Milton is complaining about the hostile reception given to his earlier divorce tract, Doctrine and Discipline of Divorce. In the preface to Bucer, having first detoured through a complex legal metaphor involving “bail,” “endightment,” and “attaintures,” he claims that the present work, his translation of the prominent Reformer Martin Bucer’s argument in support of divorce, might allow him “to get [his] appeachment”—i.e., the metaphorical crime of Doctrine and Discipline—“new drawn,” or rewritten, as “a Writ of Error” (CPW 2:440). A writ of error was a form of appeal in which a complainant argued that errors of fact or law had invalidated the original judgment and that the records of the case should be sent to a higher court. In cases where a major Westminster court such as King’s Bench or the Court of Common Pleas was the court of first instance, the writ of error sent the case to Parliament. The title page of Bucer addresses the treatise “To the Parlament of England ” (CPW 2:421), so in the playful fiction of this passage, Milton says that he has been mistakenly convicted in a lower court (i.e., the court of public opinion that had condemned Doctrine and Discipline), and on the basis of Bucer’s testimony presented here in The Judgment of Martin
Bucer, the case should now go to the nation’s highest judicature on appeal.7 The technical reasoning in this passage indicates why Milton’s many jurisdictional references have gone previously unnoticed. The writ of error is no longer a functional part of American or British law, having been obviated or replaced by changes to civil procedure or appellate rules. As a result, while modern readers of Milton’s divorce tracts may recognize the broadly legal tilt of a passage that refers to “attaintures” and “endightment,” without a specific background in early modern legal history, they are unlikely to know that when he refers to a writ of error, Milton is not simply appealing to a single normative system that we would think of as “the law.” Instead, he asks readers to think with him about the way in which different judicial venues might produce more or less just outcomes.
Milton’s treatise Colasterion provides a similar example. Doctrine and Discipline had been attacked from two directions, by the Puritan minister William Prynne—a champion in the fight to reform the Church of England—and by the anonymous author of An Answer to a Book, Intituled, The Doctrine and Discipline of Divorce. In his response, Colasterion, Milton faces a dilemma: he does not want to ignore Prynne’s attack, but neither does he want to castigate Prynne in the same way as the Answerer, whose bungled arguments he despises. Milton’s solution is to charge Prynne and the Answerer with offenses from different legal systems. Prynne, he says, has committed a “rash and heedless calumny of his neighbour” (CPW 2:723). In context, Milton is administering only a hand-slapping. Calumny was the canon law’s version of what we would call slander, and it was not a criminal offense. Canon law courts were also highly attuned to motive so a judge in a diocesan court faced with a defendant, such as Prynne, who had uttered a “rash and heedless”—as opposed to a premeditated—calumny would probably have ordered him to make a public apology. (Moreover, by the time Milton was writing Colasterion, the canon law courts had been stripped of much of their jurisdiction, so Milton is charging the Answerer with an offense that was unenforceable.) Milton is not nearly so gentle with the Answerer, whom he accuses of “Champarty” (CPW 2:727). The early modern period had a deep-seated fear of corrupt legal practices, and prominent among these was the crime of maintenance, which was encouraging or being involved in a lawsuit without just cause.8 Champerty was an aggravated form of maintenance, and the common law writer
7. The early modern Parliament combined both legislative and judicial functions in a way that is largely alien to the modern world. See McIlwain, High Court of Parliament.
8. Strain, “Legal Reform and 2 Henry IV,” 280–81.
Thomas Blount calls it “an ancient grievance in our Nation.”9 Someone committed champerty when he abetted someone else’s lawsuit for personal gain.10 Milton alleges that the semiliterate Answerer has combined with a betterinformed backer—a “stripling Divine” who has furnished scraps of theological knowledge—and also with the licenser/judge who has brought “his chair into the Title leaf; there sits and judges up or judges down.” All of them are in cahoots for “round fees” (CPW 2:727). Unlike calumny, champerty was a serious offense. It had been prosecuted fiercely by Star Chamber before that court’s dissolution in 1641, at which point cognizance transferred over to the common law courts.11 So whereas Prynne has committed an offense hardly at the level of a misdemeanor, the Answerer has committed something akin to a felony.
These two excerpts are typical of this book’s focus on civil, or private, law, with my discussion of champerty being the exception that proves the rule. The early modern period was so committed to the integrity and just operations of civil law—that is, to the idea that people with grievances against one another should have an impartial legal forum within which to seek redress—that any underhanded manipulation of these operations in the form of maintenance or champerty was punished as a crime. While early modern England, especially in the area of the common law, did not draw a crisp or consistent theoretical line between private law and public law in the way that we might expect, we can still usefully distinguish between those civil matters that concerned individuals and those that concerned the state as a whole. Into this latter category we can put offenses such as robbery, murder, treason, etc. (i.e., the corpus of the criminal law); the rights and obligations of soldiers vis-à-vis civilians (i.e., martial law); the efforts of England’s courts and rulers to regulate the complex political, economic, mercantile, and military relationships between different
9. Blount, Nomo-Lexicon, s.v. “Champarti.” As Samuel Thorne shows, Sir Edward Coke completely misunderstood a feudal statute about land ownership because he projected onto it his own century’s anxieties about those who colluded in the crime of maintenance: Thorne, “Sir Edward Coke: 1552–1952,” 11–12.
10. For example, a rich man eager to sabotage a neighbor might find a poor man who had a legal grievance against this same neighbor and agree to pay all his legal fees. This could work for the rich man in various ways. For example, he and the poor man might agree to split any damages awarded. The rich man might be hoping that a judgment would materially benefit him indirectly (hypothetically, the neighbor could be ordered to vacate land that the rich man could then acquire). Or, if he had a concurrent lawsuit of his own against the neighbor, the rich man might be trying to exhaust his neighbor’s time and money.
11. On Star Chamber’s efforts to punish maintenance, see Hudson, Treatise, 88–95.
nation-states (i.e., international law), and the extraordinarily vexed question of the rights of subjects vis-à-vis their rulers (i.e., constitutional law). In this book, I will track Milton’s thinking as he explores various issues in private law. I restrict my focus in this way for two reasons. First, I am trying to bring into view a form of legal thinking that has often been neglected and thereby to compensate for a lopsidedness in the critical landscape. (For example, far more scholars know Milton’s thoughts on the legality of regicide than his views of debt composition.) Second, for reasons that I explore further below, private law for Milton raised complex questions of individual choice and human liberty.
The Bridge to Alternity
The first step toward understanding how and why Milton moves in and out of different legal systems is to shift away from a narrow idea of law as synonymous with positive law—i.e., as being only a top-down imposition of the secular nation-state. The work of the jurist and legal theorist Robert Cover can help make this shift. In his essays, Cover argues that law should not be understood simply as a given society’s system of rules for control. Instead, law is embedded inside a larger constellation of narratives from which law takes its meaning: “We inhabit a nomos—a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.” The formal procedures and institutions of the law are only “a small part of the normative universe” since “no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture.”12 Cover’s theory is useful because it expands the jural field beyond the boundaries of institutional law per se. When we widen our aperture to take in this larger field, Milton comes into view. Not an institutional servant of the corpus juris, he was nevertheless preoccupied by what Cover sees as the central concerns of the nomos: “right and wrong, lawful and unlawful, valid and void.” In fact, Milton was arguably one of the chief activists of the early modern nomos.
Areopagitica provides a good example of Milton’s deep involvement in the seventeenth-century nomos. At one level, Areopagitica is an antilaw argument in that Milton wants to put books and reading beyond the reach of England’s
12. Cover, Narrative, 95–96. See also legal historian Robert W. Gordon’s argument that any law/society divide is meaningless since law constitutes the terms upon which people think about their relationships to other people: “Critical Legal Histories.”
9 legal authorities. In this sense, John Leonard is correct when he writes, “Milton throughout his career had little faith in laws.”13 However, Milton is not simply standing outside an institutional structure called “law” and hurling stones of protest. His whole approach is deeply juridical in that his argument fundamentally depends upon the same jural systems that he critiques. For example, on the title page of Areopagitica Milton addresses “the Parlament of ENGLAND” (CPW 2:485), and throughout the treatise he presses the MPs to repeal some provisions of an earlier licensing statute but to leave other provisions intact, such as those protecting copyright. As Nigel Smith reminds us, while earlier in the period, law typically appears mimetically in literature as “part of the architecture of plays or poems,” much of the literature of the 1640s and 1650s “is literally a plea in the name of a desired legal practice.”14 Areopagitica is precisely such a legal plea. In the course of his argument, Milton weighs out the respective authority of Parliament vis-à-vis the “Jury” of readers (CPW 2:505), and by urging legislative action, he touches on the proper relationship between statutory law, custom, and case law. As I explore further in chapter 3, Milton is also keenly aware in Areopagitica of the way that different contemporary judicatures prosecuted transgressive words, and he uses references to debt imprisonment and sureties (both common law processes) to build his antilicensing argument. While Milton wants to exempt reading from all juridical controls, Areopagitica is simultaneously and paradoxically steeped in juridical ways of thinking.
Milton’s two major divorce tracts, Doctrine and Discipline of Divorce and Tetrachordon, are similarly built around a legal scaffolding. Like Areopagitica, they are addressed to Parliament, and Milton urges a specific legislative change: he wants the MPs to strip jurisdiction over divorce away from the canon law, much as they had done for usury in 1571 and would do again for frauds in 1677. However, the example of usury also illustrates what Milton saw as the danger of such legislation, for when Parliament set a legal rate for usury, it thereby made violations of usury enforceable in the common law courts. Especially on the subject of divorce, Milton was not an Erastian, meaning that he did not want secular judges to don the robes of their ecclesiastical colleagues and begin hearing cases about the validity of marriage.15 In effect, Milton wants Parliament to pass a law that says to the ecclesiastical courts, “you may not litigate the issue of divorce,” but that also says, “we will not
13. Leonard, Value of Milton, 4.
14. N. Smith, “Legal Agency,” 605.
15. On Milton’s anti-Erastian stance, see Gregory, “Did Milton Have?”
litigate this issue either.” Martin Dzelzainis argues that for Milton, to be free means to be sui juris, under one’s own jurisdiction instead of subject to the jural power of another, and this impulse is especially visible in the divorce tracts, where he claims that each man should be “a Law in this matter to himself” (Doctrine and Discipline of Divorce, CPW 2:347).16 However, Milton’s sui juris claims appear embedded in works whose fundamental logical warrant is that each man is also sub juris, under the authority of another. After all, if men and women were not, in fact, sub juris, there would be no reason to mount a legally informed argument to Parliament in the first place. Exploring Milton’s repeated recourse to Roman law, Dzelzainis pinpoints the seeming contradictions in Milton’s thinking: “The paradox which we need to grasp therefore is that, in the very act of defining Christian liberty as freedom from the law, Milton falls back on the conceptual framework of the Roman law of persons.”17 While Dzelzainis is arguing that Roman law in particular matched Milton’s interests, in fact Milton reaches for many other kinds of laws as well when he wants to think about liberty and righteousness, and so Dzelzainis’s point about the complex and conflicted role of law in Milton’s thinking has a greater purchase than he allows.
Cover’s idea of the role of law in the larger nomos helps us see why law was such a source of combined frustration and fascination for Milton. Law has often been regarded reductively as the “mask of privilege” or the ventriloquized voice of state power. However, Cover argues that it is more usefully seen as “a system of tension or a bridge linking the concept of a reality to an imagined alternative.”18 Each community builds a legal “bridge to the future” using “the materials of sacred narrative that take as their subject much more than what is commonly conceived as ‘the legal.’”19 Arguably more than any other English writer, Milton liked to imagine connections between “the concept of a reality” and “an imagined alternative.” The bridge connecting Earth and Hell and the ladder connecting Earth and Heaven in Paradise Lost are only the most obvious instances. We could also adduce A Masque’s vision of the “due steps” that lead some mortals to “the palace of eternity” (CPEP 7, 14); sonnet 7’s focus on “Time” and the “will of Heav’n” guiding Milton toward his assigned “lot” (CPEP 12, 11); and the “rousing motions” that stir Samson into violent action (CPEP 1382). In these and other examples, Milton is thinking theologi-
16. Dzelzainis, “Republicanism,” 301–4.
17. Dzelzainis, “Liberty and the Law,” 61.
18. Cover, Narrative, 175, 101.
19. Cover, Narrative, 177.
