Read an Excerpt
The Legal Epic
Paradise Lost and the Early Modern Law
By Alison A. Chapman The University of Chicago Press
Copyright © 2017 The University of Chicago
All rights reserved.
ISBN: 978-0-226-43527-5
CHAPTER 1
Introduction
Reflecting on the fundamental ideological orientations that impelled the French Revolution as opposed to the English Civil War, Matthew Arnold once observed succinctly, "1789 asked of a thing, Is it rational? 1642 asked of a thing, Is it legal?" Arnold's insight about seventeenth-century England's profoundly legal turn of mind has been reinforced by subsequent studies of the period. For example, Deborah Shuger writes that law occupies "the troubled center of the Renaissance episteme," and she calls it "the characteristic discipline of the late Renaissance, in much the same way that logic is the characteristic discipline of the Middle Ages." We see this intense preoccupation with law in many of the period's major literary works. Authors like Sir Thomas More, Edmund Spenser, William Shakespeare, Ben Jonson, and John Donne all show both an interest in broad legal ideas and a familiarity with the technical nuts and bolts of legal justice. In a nutshell, this book argues that we should add John Milton to the list of early modern writers who had a detailed understanding of and interest in the law and who used his works to raise searching questions about the law's proper function. Although Milton's view of the law is my subject broadly speaking, I do not attempt here to provide a comprehensive study of Milton's comments about law and the just relations that law was supposed to ensure. Such a study lies beyond my present scope, given the various forms of legal justice in the period (constitutional, international, mercantile, criminal, civil, equitable, etc.), the many different legal systems with which Milton was familiar (common law, Roman law, canon law, brehon law, Anglo-Dutch law, etc.), and the sheer volume of his writings. Instead, as my title indicates, The Legal Epic concentrates on Paradise Lost. I argue that Paradise Lost sits at the apex of the early modern period's long fascination with law and judicial processes and that if we do not understand the links that the early modern period drew between law and religion, we cannot see the way law works in Milton's poem to help "justify the ways of God to men" (1.26).
Paradise Lost is saturated with legal terms. Examples include "patrimony," "realty," "injunction," "prohibition," "arch-felon," "grand thief," "allegations," "fact," "sentence," "devolved," "equal," "verdict," "evidence," "partner," "proof," "propriety," "crime," "contempt," "trespass," "collateral," "act of grace," "possession," "devise," and many more. When Milton uses these and other legal terms, he points both to general ideas of legality and to ways in which real early modern laws worked. An excerpt from book 10 shows this legal precision at work. When the fallen angels drop to their bellies and turn into snakes, Milton calls them "accessories" to Satan's "riot" (10.520, 521). In doing so, he makes a set of exact legal discriminations. Since the fallen angels were confined to Hell while Satan roamed free, Milton means the word "accessories" in a specifically common law sense. Whereas a code like Roman law generally defined accessories as those who actually assisted in the commission of a crime, common law had a broader definition. As the early modern common lawyer John Brydall explains, an accessory after the fact was "he, that receiveth, favoureth, aideth, or comforteteth [sic] any Man, that had done any murder or other felony, whereof he hath knowledge," even if he himself was not present at the crime's commission. In book 10 Milton shows the fallen angels providing this kind of felonious favor, aid, and comfort to Satan, for, having heard the story of his success in Eden, they attempt to give him their "universal shout and high applause," an acclaim that turns to hissing (10.505). In the next sentence, Milton calls them "accessories," so he is applying this label with a lawyerly precision, as soon as possible after they clear the statutory bar. When he convicts the fallen angels of abetting the specific crime of "riot," Milton also alludes to contemporary legal norms. Unlike our modern association of riot with large, violent crowds, an early modern riot occurred when "three or more do an unlawful Act." The detail of three persons wasfoundational to riot's legal definition, appearing consistently in early modern legal works. By the time he enters Hell in book 10, Satan has recently collaborated with Sin and Death. As a result, when he addresses his followers, he is newly guilty of the three-personed crime of riot, and the fallen angels can be accurately called accessories to riot. (Early modern riots typically targeted either enclosures or food stores, and so Milton provides a dark parody: Sin and Death will breach Eden's "enclosure green" and Death will "stuff [his] maw" with Eden's riches [4.133; 10.601].) These legal terms allow Milton to make two theological points. First, the fallen angels have earlier fantasized about being "exempt" from "Heav'n's high jurisdiction," but since riot and being an accessory to felony were both domestic crimes, Milton uses the law to remind readers that even in the heart of Hell, the fallen angels live under God's domestic jurisdiction (2.318, 319). Second, the logic of the common law helps justify the punishments meted out to the fallen angels. In Brydall's words, any criminal accessory "shall be punished and shall have Judgement of life and member, as well as the principal," and so Milton applies a basic principle of English common law when he shows Satan's punishment being transmitted to his followers.
A similarly informed use of early modern legal practices and ideas is evident at many of the poem's key junctures. For instance, when God and the Son make provision in book 3 for Adam and Eve's salvation, Milton shows both the theological virtue of mercy and an accurate version of early modern pardoning protocols. When God elevates the Son in book 5, we see Milton's anti-trinitarian beliefs, and we also see a reflection of the two-stage process that constituted early modern legislating. When he calls Satan a "grand thief," Milton assumes that readers will know the difference between petty and grand larceny (4.192), and when Abdiel refers to Satan as one who has lost not only "faith" but also "realty," Milton alludes to the fact that under common law, breaking faith with one's lord had historically resulted in the forfeiture of one's real estate (6.115). Likewise, when Adam refuses to relinquish his "bond" in Eve, readers are tacitly asked to remember the crucial role that sealed bonds played in early modern finance (9.956). In these and many other passages in Paradise Lost, Milton uses early modern legal principles, cases, and statutes to help readers make sense of God and God's plans for a wayward humanity.
The Paradise Within and Without
Seeing the role that law plays in Paradise Lost has the potential to change our thinking about the poem in two main ways. First, legal ideas support Milton's stated goal: to "assert eternal providence" and to "justify the ways of God to men" (1.25, 26). The verb "to assert" evolved from a Roman legal practice (ad + serere) whereby a man either claimed or set free a slave by formally placing his hand on the slave's head. Milton's goal to "justify" has a similar set of jurisprudential resonances. While Milton scholars have typically read the verb "to justify" in its moral/theological sense of "to confer or assure righteousness," it also had a range of specifically juridical meanings in Milton's day that sprang from its etymological root in jure. For example, "to justify" could mean "to corroborate, prove, verify," "to try as a judge," "to make lawful," and "to offer a defense that the act [in question] was lawful." When he says his goal is to "justify" God, Milton signals that at one level, he will be providing a legal defense. He thereby invites his readers to judge the ways of God not only according to reason and conscience but also according to widespread ideas about legal justice. In Doctrine and Discipline of Divorce, Milton writes that God "binds himself like a just lawgiver to his own prescriptions, gives himself to be understood by men, judges and is judg'd, measures and is commensurate to right reason" (CPW 2:292). As I explain in chapter 2, for Milton and his contemporaries, the category of God's "prescriptions" was an elastic one that also included human law, and so God "binds himself" to the principles of both the Law and the law, divine law as well as temporal law. This act of self-binding means that God also wants to be "measure[d]" against these complementary sets of principles. God invites human beings to judge him, applying not only the yardstick of reason and conscience but also the yardstick of the law, which was — at least in theory — itself another expression of God's nature and his will for humanity. For example, when Death calls Satan a "traitor angel" who has "conjured" against God, and when the epic voice describes wedded love as a form of "sole propriety" (2.689, 693; 4.751), Milton draws on contemporary ideas about how the law works, and in each case, legal principles cooperate with theological ones to show that God's justice runs a comprehensible course.
As a result, while fallen Adam complains, "Inexplicable/[God's] justice seems" (10.754–55), God's justice is not as wholly inexplicable as Adam claims, for Milton has taken pains to describe many aspects of it in terms of widely known legal principles and procedures. Adam himself offers a good example. Not long after he laments the unfathomable nature of God's justice, he and Eve conform to one of the most basic early modern assumptions about judicial pardons: they are careful to beg pardon in the same place where they were sentenced. At this point in Paradise Lost, as in so many others, Milton aligns the operations of human temporal justice and those of divine justice. Ironically, given his professed hostility to Milton's God, critic William Empson calls inadvertent attention to one of these law-Law alignments. Criticizing God for his professed inability in book 3 to remit Adam and Eve's penalty, Empson claims that God's rationale is "no part of English justice, because the prerogative of mercy has long been a fundamental power of the Crown." But in reasoning by judicial analogy, Empson oversimplifies the early modern period's judicial terrain. While he is correct that the Crown had the authority to issue pardons, English juridical tradition also put careful restrictions on the nature and extent of pardons. Admittedly, English monarchs often ignored these restrictions, but the later Stuarts' insistence on their rights to issue dispensations at will was a major cause of their overthrow in 1688. As a result, when God scrupulously limits his pardoning power, he acts like a law-abiding monarch should and not like Empson's divine hypocrite.
By suggesting that Milton uses law in Paradise Lost to help explain God's ways, I part company from those critics who stress the inscrutability of Milton's God. For instance, Victoria Silver argues that God in Paradise Lost is perplexing and contradictory, and Stanley Fish claims that since human beings must simply obey, God's comprehensibility is beside the point. In contrast, I emphasize the way law helps readers of Paradise Lost build a conceptual bridge between Heaven and Earth, using what they know of temporal law to understand, even if only partially, the operations of God and the practices of a distant Edenic world. My argument also pushes back against those critics who see Milton as embracing a position of conflicted ambivalence. However, I am not suggesting that Milton had no doubts about God's justice. While Paradise Lost's legal allusions help untie — or at least loosen — many of the knots in this poem, other knots remain fastened tight (How could Satan be "self-tempted" [3.130]? Why is the Son's sacrifice necessary for humanity's salvation? Why is Adam's guilt visited upon his offspring? Etc.). Rather than arguing that the law works as a universal solvent for the stubborn problem of God, my claim is that if we read Paradise Lost on the lookout for its moments of incertitude and divine impenetrability, we can miss the ways in which law helps to create rational order and stability. Continuing in Doctrine and Discipline of Divorcehis exploration of the legality of God's ways, Milton writes, "God indeed in some wayes of his providence, is high and secret past finding out." However, "in the delivery and execution of his Law, ... [he] hath plain anough reveal'd himself" (CPW 2:297–98). God's nature is beyond human comprehension. God's laws, however, are not. And since for Natural Law devotees like Milton, human laws and divine laws are part of the same cosmic fabric, human laws can help explain why God does what he does. This seems important to Milton because a God of law is a predictable God, one who works in perfectly consistent ways at every point between Alpha and Omega, and so the law provides Milton with a defense against the seemingly arbitrary God of Calvinist theology.
Second, while on the one hand the presence of law in Paradise Lost points the reader's attention upward toward the justice of God, on the other hand it points outward toward the public sphere, much as the two tables of the Decalogue were intended to foster both individual righteousness and a just, stable social order. This outward-looking orientation of the law in Paradise Lost reflects Milton's changing views of legal systems vis-à-vis ecclesiastical ones. In his earlier works, Milton often pairs law and religion as the twin pillars supporting the nation. For example, in Prolusion 7, he describes the uncouth state of human beings when "they had no religion to guide them, no laws or law-courts" (CPW 1:299). He opens Doctrine and Discipline of Divorce with a complaint about custom, which he calls "the common climer into every chaire, where either Religion is preach't, or Law reported" (CPW 2:223). In Areopagitica, he refers to the Romans learning their "Religion and law," the two fundamental systems that ordered their society (CPW 2:497). And in Tenure of Kings and Magistrates, he writes that God gave humanity the twin gifts of "Justice and Religion," using "Justice" here as a synonym for "temporal Law" (CPW 3:222). All of these works were written in the 1640s, when Milton still believed that organized religion could create social cohesion. However, this optimism about religion soon waned. In later works, such as Considerations Touching the Likeliest Means to Remove Hirelings Out of the Church and A Treatise of Civil Power, he ardently rejects a social model in which the church serves as a weight-bearing structural member of society, in the manner of the Church of England. As he advises Cromwell in A Second Defense, "I would have you remove all power from the church" (CPW 4:678).
When religion goes inward, as Milton fervently believed it should, the just rule of law becomes all the more important as a means to organize social relations and protect the commonwealth. Milton agreed with classical theorists such as Aristotle, Plato, Cicero, and Epicurus on the critical importance of legal justice in upholding human societies. In The Judgment of Martin Bucer, he writes, "Wee have need of civil laws," and in Prolusion 7 he claims that no culture can be happy that is not "firmly based on laws" (CPW 2:443, 1:299). Law helps bring social cohesion, and unlike religion, it has the advantage, from Milton's standpoint, of not telling men and women what to believe and of leaving them the management of their own hearts (although England's laws sometimes strayed across these dividing lines, as Milton complains in his anti-Erastian A Treatise of Civil Power). We see a breath of Milton's emerging preference for civil law over civil religion in Tenure of Kings and Magistrates, when, having claimed that justice (by which he means legal justice) and religion are "from the same God," Milton adds that "works of justice [are] offtimes more acceptable" (CPW 3:222).
(Continues...)
Excerpted from The Legal Epic by Alison A. Chapman. Copyright © 2017 The University of Chicago. Excerpted by permission of The University of Chicago Press.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.
