Performing Copyright: Part Two
The Immortality of Custom in English Renaissance Law and Literature - From the ‘Ancient Constitution’ to ‘Artificial Reason’
This is the second of a series of posts marking the publication of my book Performing Copyright: Law, Theatre and Authorship (Oxford: Hart, 2021). In these pieces I explain the book’s core themes and key case studies, addressing how theatre’s authorship and performance practices have helped shape - and have been shaped by - historical and contemporary copyright law. My book is available here.
The Immortality of Custom in English Renaissance Law and Literature - From the ‘Ancient Constitution’ to ‘Artificial Reason’
In my last post I noted that Elizabethan theatre writers – including the lawyers who wrote plays – probed and explored the conditions for how a functional and just legal order can be established.[1] Here I focus on the significance of this imagined legal order in the context of the actual English common law.[2] I explore the connection between the work of dramatists such as William Shakespeare, and the law as developed by jurists such as Sir Edward Coke. I argue that during the Elizabethan and Jacobean periods lawyers and writers both relied on historical English custom to ground their innovative precedents, maxims, and dramatic works in time immemorial. In so doing, the lawyers and the writers mythologised – and, in effect, disguised – the ways that the English law, state and society were changing in radical ways, such as with the emerging juridical accounts of private property, and in the outline of a novel relationship between individual citizens and the Crown.
In the early 17th century Sir John Davies, the Elizabethan lawyer-poet who later became Attorney General of Ireland, remarked that ‘the Common Law of England is nothing else but the common custome of the Realme’.[3]
In this vein, during the the Elizabethan and Jacobean periods English lawyers looked backward to custom in order to make a claim to England’s ‘ancient’ constitution - a patchwork of ‘common learning’ complemented by scattered written sources, such as plea rolls and law reports. As a result of this apperception of embedded custom, English law could draw upon unwritten rules, as opposed to the continental civil and canon law traditions of codification. Indeed, English lawyers sometimes championed this customary quality in claiming the superiority of their ‘ancient’ common law over the continental legal systems.
There is no doubt that the key legal thinker and judicial figure of the period – Sir Edward Coke – understood the mythological resonance of claims to ancient custom, as well as the utility and power of the theatrical medium in the context of English law.
A key issue of Coke’s time concerned the legal regulation of land. Land had been governed via customary tenancies in prior centuries under the ‘villein tenure’ – but by the 16th and 17th centuries such claims were being filtered through the new legal concepts of copyholds and leaseholds. As Coke remarked: ‘tenants by copy is but a new-found name, for in ancient times they were called tenants in villeinage’.[4]
Such disputes over land sometimes saw the law being used to dispossess individual tenants whose families had worked specific plots of land for decades (if not centuries).[5] This had a huge impact on daily life. As argued by Marx, the impact of the shift from common to private property unsettled rural English populations, contributing to a rise in migration to the towns and cities during the early stages of the industrial revolution.[6] Yet, despite this shift, claims to ancient custom, expressed in new legal terminology and rhetoric, gave property in English law the illusion of a seamless history going back to Henry II (and perhaps even to earlier Anglo-Saxon kings). In this way, jurists such as Coke could ‘at the same time acknowledge the dynamic nature of legal development, while retaining a view of the fundamental principles of law which stressed its timeless nature’.[7]
The crucial motive for the Elizabethan and Jacobean lawyers’ rhetoric of custom was, therefore, instrumental: by reaching back to custom apparently rooted in ‘time immemorial’ English lawyers could define new ideas and processes central to common law, including those relating to jurisdiction, property and contracts. An essential quality of English legal rhetoric, infused with theatrical mannerisms and Latin maxims, was that it masked the ways in which the emerging common law was changing the very nature of governance and regulation of life in England (as well as the position of the individual). In other words, harking back to custom allowed lawyers to invent the tradition which they purported only to continue.[8] As Elsky opines:
‘Time immemorial furnished custom with a unique and paradoxical ability: to make familiar new political forms.’[9]
Thus, while claiming a grounding in eternal custom, 16th and 17th century lawyers could bring forth innovative legal arguments in court that transformed the nature of the English - and later the British - state. Moreover, even though English lawyers harked back to native custom to distinguish themselves from their continental cousins, as in the case of English theatre the common law ultimately betrays a Latin influence, via the use of maxims such as malus in se (wrong in itself).[10] Therefore, it was not just the rhetoric of Cicero, and insights from Seneca, Plutarch and Ovid, that proved influential on the English common law - Roman concepts and maxims formed an important part of English legal reasoning, even if this sometimes went unrecognised.[11]
If lawyers were concerned with political and regulatory power, contemporary writers had a different rationale for referring to legal custom: they sought the imaginative immortality of locating their own literary works in customary ‘time out of mind’. Elizabethan and Jacobean literary figures were fascinated by the temporality – and, arguably, the perceived eternality – of common customs and laws. Like lawyers, writers realised that they could utilize custom to reinterpret past dislocations as continuities – of language, of genre, and of history. Thus, Elsky argues that ‘legal custom was an indispensable concept to early modern literature’.[12] Examples abound: Shakespeare’s Cymbeline is rife with references to custom (often in the breach); and more generally, Elizabethan theatre commonly featured the celebration of rural customs that had been disrupted by the Protestant reformation. While lawyers such as Coke viewed custom in largely instrumental terms, Shakespeare and his contemporary writers saw custom ‘not as an impediment to truth or change, but rather as a source of poetic creativity and political possibility’.[13]
Here we return to Shakespeare’s most celebrated text: Hamlet. For Elsky Hamlet’s significance relates to the dichotomy between the stable (custom) and the unstable (revolution), stating that ‘Hamlet discloses the possibility of custom’s enduring, generative power’ and that Hamlet ‘uses custom within a narratio, or description of offstage events by a messenger, to open up a space for the possibility of revolution, a concept and practice associated with breaking from the past’.[14]
The personal and the political also offer fascinating contrasts in the case of Hamlet. If Elsky focuses on the use of custom to generate and justify the political revolution inherent in Hamlet, Perry’s interest (as detailed in my prior post) is in how Shakespeare used Senecan insights for a no less significant revelation: the fabrication of the self.[15] If Shakespeare, building on Senecan thought, created in Hamlet a luminous figure of the self as individual, Coke and other English lawyers used customary notions and Latin maxims to fabricate principles of the common law that could be asserted by individual petitioners in disputes over land, property, libel, contract, and, eventually, copyright.
Intriguingly, these two famous English renaissance figures – Shakespeare and Coke – may actually have met a handful of times but this cannot be established with certainty.[16] Nonetheless, there are reasons for drawing a connection between the English renaissance’s greatest playwright and its most storied lawyer: several Shakespeare plays, such as The Merchant of Venice and Measure for Measure, feature legal terms and concepts (leases, mortgages, pleadings) which Coke helped to define; and Coke was certainly familiar with Shakespeare’s plays, even quoting from the John of Gaunt speech in Richard II when addressing a crowd at the Norfolk assizes in the early 17th century.[17]
We can therefore connect the literary and dramatic use of customary rhetoric with the elevation of ancient custom as part of the emerging English common law. It is not an exaggeration to say that early modern English legal and political thinkers used custom to help constitute the English polity, by making familiar the idea that England possessed an ancient constitution governed by enduring consent rather than coercive force. In this way, common lawyers (and contemporary politicians) relied on custom to broaden and deepen the law’s authority (and, therefore, their own).
Crucially, if the temporality of custom and common law offered writers the chance to found their works in ‘time out of mind’, the writers also performed an invaluable service for the law itself. The writers ‘transformed a legal concept into an evocative mythopoetics’ which contributed to the perception of the common law as eternal resource.[18] Judges and lawyers, such as Coke, provided the precedents; writers, such as Shakespeare and Jonson, provided the mythology.
Can we go further and link the novelty of Shakespeare’s intuitive reasoning about the human individual as self-creating (and thus, self-doubting), and Coke’s definition of law as artificial reason, the malleability of which allowed him to, for example, develop the principle of judicial review (an innovation which allowed individual petitioners to challenge decisions by the Crown)?[19] Here we are on less solid ground. Yet, we can observe that if during the English renaissance the common law truly became artificial reason, theatrical rhetoric and mythologising, from Seneca to Shakespeare, played a crucial role in constructing the artifice.
In my next post I will explore the how the idea of the author in literary and dramatic thought grew in esteem in the 17th century, particularly with the efforts of Ben Jonson. This coincided with a growing respect for ‘literary property’ in law, even in an era when the Stationers’ Company - not authors - held the monopoly rights to print texts. Later, during the early eighteenth century, this idea of literary property would evolve, via the Statute of Anne 1710, into a system we would recognise as modern copyright law. My book is available here.
[1] E Heinze, ‘Power Politics and the Rule of Law: Shakespeare’s First Historical Tetralogy and Law’s “Foundations”’ 29 Oxford Journal of Legal Studies (2009) 139.
[2] S Elsky, Custom, Common Law, and the Constitution of English Renaissance Literature (Oxford: Oxford University Press, 2020).
[3] E Heath, ‘Sir John Davies on Custom and the Common Law’ 82 The Review of Politics (2020) 438.
[4] E Kerridge, Agrarian Problems in the Sixteenth Centuryand After (London: Routledge, 1969) 141. See also M Bailey, ‘The transformation of customary tenures in southern England, c.1350 to c.1500’ 62 Agricultural History Review (2014) 210.
[5] Ibid.
[6] K Marx, Capital: Volume 1 (New York: Vintago, 1977), particularly in ‘Chapter Twenty-Seven: Expropriation of the Agricultural Population from the Land’.
[7] M Lobban, ‘The common law mind in the age of Sir Edward Coke’ 33 Amicus Curiae (2001) 18.
[8] A Pottage, ‘Introduction’ in A Pottage and M Mundy (eds), Law, Anthropology and the Construction of the Social: Making Persons and Things(Cambridge: Cambridge University Press, 2004) 6.
[9] S Elsky, Custom, Common Law, and the Constitution of English Renaissance Literature (Oxford: Oxford University Press, 2020), also noting: ‘The strange temporality assigned to legal custom, that is, its purported existence since 'time immemorial', furnished it with a unique and paradoxical capacity—to make new and foreign forms familiar’.
[10] Case of Proclamations 77 ER 1352, (1611) 12 Co Rep 74, [1610] EWHC KB J22. See also D C Smith, Sir Edward Coke and the Reformation of the Laws: Religion, Politics and Jurisprudence (Cambridge University Press, 2014) 61; D Ibbetson, ‘Edward Coke, Roman Law, and the Law of Libel’ in The Oxford Handbook of English Law and Literature, 1500-1700 (Oxford University Press, 2017); and C Egan, ‘Performing Early Modern Libel: Expanding the Boundaries of Performance’ 23 Early Theatre (2020) 155.
[11] JW Tubbs, ‘Custom, Time and Reason: Early Seventeenth-Century Conceptions of the Common Law’ 19 History of Political Thought (1998) 363.
[12] S Elsky, Custom, Common Law, and the Constitution of English Renaissance Literature (Oxford: Oxford University Press, 2020) 3.
[13] Ibid., 1-2.
[14] Ibid.
[15] C Perry, Shakespeare and Senecan Tragedy (Cambridge: Cambridge University Press, 2020).
[16] A Boyer, ‘Drama, Law, and Rhetoric in the Age of Coke and Shakespeare’ in C Jordan and K Cunningham (eds), The Law in Shakespeare(London: Palgrave MacMillan, 2007) 20.
[17] Ibid. Coke was in Boyer’s words ‘Janus-faced’ – capable of both reactionary and progressive views. For an assessment of Coke’s reactionary views in the context of slavery, see E Cavanagh, ‘Infidels in English Legal Thought: Conquest, Commerce and Slavery in the Common Law from Coke to Mansfield, 1603-1793’ 16 Modern Intellectual History (2019) 375.
[18] S Elsky, Custom, Common Law, and the Constitution of English Renaissance Literature (Oxford: Oxford University Press, 2020) 8.
[19] For Coke, one of his enduring and most innovative judgments was Case of Proclamations 77 ER 1352, (1611) 12 Co Rep 74, [1610] EWHC KB J22. The judgment put forward the lasting principle that the King could not change the common law without parliament – the King could not rule via prerogative alone. James I did not accept this limitation on his power, but the principle proved influential, being cited most recently in the UKSC Miller judgments - R (on the application of Miller and anor) v Secretary of State for Exiting the European Union [2017] UKSC 5 and R (on the application of Miller) v The Prime Minister and Cherry v Advocate General for Scotland [2019] UKSC 41.