Abstract This essay situates two wife-murder plays, Shakespeare’s Othello and Calderón’s El médico de su honra, in a transnational cultural context of anxieties about adultery, cuckoldry and female sexuality, all of which are both affective and legal. Neither Shakespeare’s Desdemona nor Calderón’s Mencía has committed adultery, but in these plays that does not matter. Mere suggestion is enough to convince husbands of their wives’ guilt and, fuelled by a dangerous combination of rhetoric and passion, suspicion all too easily becomes proof. Quintilian’s idea of vividness, or enargeia, is central to this process, and this essay considers enargeia’s role in creating belief in early modern drama, its legal afterlife in a nineteenth-century adultery case, and its role in the modern courtroom. Rey Gutierre, ¿qué es lo que visteis? Gutierre Nada, que hombres como yo no ven; basta que imaginen, que sospechen […]. (Pedro Calderón de la Barca, El médico de su honra, iii.2127–30)1 The question ‘What’s the matter?’ echoes throughout William Shakespeare’s Othello (1604). ‘What is the matter there?’ (Othello, i.1.85) Brabantio calls down when rudely woken by Iago in the opening lines of the play to news of his daughter’s clandestine marriage.2 He seeks legal redress from the Duke who, seeing his desperation, asks ‘Why, what’s the matter?’ (Othello, i.3.60). It is a question which permeates and frames the altercation between Montano and Cassio that rouses Othello from his wedding bed (Othello, ii.3.125–71), one that shadows Othello’s changing behaviour in response to Desdemona’s suspected infidelity (Othello, ii.3.229; iv.1.47; v.2.108), and one which flanks both Emilia’s cries of ‘murder!’ and her implication of Iago in Desdemona’s murder (Othello, v.2.175–78). As a modern anglophone audience we read it affectively, as a question about emotional disturbance, but ‘matter’ has a further technical legal meaning that denotes the causa or cause in a legal case. ‘What’s the matter?’ is therefore also a question that encapsulates the conjunction of the legal and the affective which is the focus of this Special Issue. In early modern Europe, legal matters were haunted by their affective counterparts as much as they are today, and this is not simply the result of human involvement at all stages of legal process. Matters can be further divided into ‘matters of law’ (which laws and precedents apply) and ‘matters of fact’ (what actually happened), but whereas we tend to think of facts as incontrovertible and unquestionable, ‘facts’, as Barbara Shapiro has shown, were not always the empirical truths they have come to be.3 A fact in the legal sense was (and still is) not ‘an established truth’ but rather ‘an alleged act whose occurrence was in contention’.4 For early moderns, then, facts were subject to interpretation. The eminent early modern English lawyer Sir Edward Coke points out, and preserves as an aphorism, that the ‘cause and the origin is the substance of the matter’ [‘& causa & origo est materia negotii’].5 Or, one might say, the ‘substance of the matter’ at issue in a given case is what gave rise to it. Therefore, the substance lies at least partially in motive and intention, in human will or desire, and its ‘truth’ is something hidden that can be shown only by examining available evidence, itself an act of interpretation.6 The answer to the question of what is the matter is therefore never self-evident and can only be rhetorically constructed. This uncertainty produces a great deal of anxiety in law, but is, as we shall see, productively negotiated in early modern drama. What I think is most striking about Othello and Pedro Calderón de la Barca’s El médico de su honra [The Physician of his Honour] – both plays that explore the intersection of law and passion – is the way in which, in their portrayals of wife-murder, and especially of what leads to murder, Shakespeare and Calderón betray a shared preoccupation with precisely such questions of proof and plausibility in private sexual matters. Adultery is the locus of these concerns since even in its most evident form, where a spouse is caught in flagrante delicto, what has actually happened is not – and most likely never will be – wholly apparent. My focus here is this epistemic conundrum of knowing adultery, or rather of adultery’s unknowability.7 Shakespeare and Calderón both play with this epistemic unease, for neither Shakespeare’s Desdemona nor Calderón’s Mencía has committed adultery, but the compromising situations in which they are represented illustrate the power of evidence – a legal category based largely in perception, interpretation and emotion – to persuade. In each case, the imagined act is just as powerful as actual adultery in creating belief, ill repute and murder. Othello murders Desdemona, just as Don Gutierre slays Doña Mencía, and the action of each play drives them towards that uxoricide. But wife-murder, though a striking similarity between the plays, is but the apex of their shared resonances.8 Matthew D. Stroud defines the famous Spanish genre of wife-murder plays as ‘those in which a husband – sometimes for love, sometimes for hate, sometimes for jealousy, sometimes in spite of himself – kills his wife, who may or may not be guilty of any particular offense’.9 But neither Stroud nor, at least to my knowledge, other critics pick up on the doubt inherent in this very definition: how the wife may or may not be guilty. Critics do not tend to consider just how little a wife’s innocence matters in these plays, nor do they question how the leap is made from mere suspicion to cause for murder. Here, I read these plays in light of this transnational epistemic interest as a way of thinking through a legally inflected problem, which is to say the way in which suspicion is readily, and arguably necessarily, taken as sufficient proof in cases of adultery both on stage and at law, and how the epistemic gap of adultery is bridged by affective rhetoric.10 In the remainder of this essay I explore the role of the classical rhetorical effect that Quintilian terms enargeia, or vividness (an effect persuasively linked to Othello by Lorna Hutson and Joel Altman, and equally resonant in El médico), which straddles the legal and the affective.11 I then turn to an American lawsuit from the 1850s in which the epistemic challenges of adultery are foregrounded, and suggest that the way in which suspicion, emotion and rhetoric function in the plays of Shakespeare and Calderón might help us to better understand this case. * Calderón’s play, like Shakespeare’s Othello, is driven by the protagonist’s fears about his wife’s fidelity. The Infante, a former suitor to Doña Mencía, falls off his horse in the first act and is carried to her house to recover. On waking, his feelings for her are revived, and although she tells him she is married to Gutierre, he insists on visiting her again. Gutierre arrives home unexpectedly and Enrique flees unseen, but without his dagger, which Gutierre finds in Mencía’s chamber, sparking his suspicions. In the epigraph of this essay, we encounter the moment in which jealous Gutierre approaches King Pedro (of Castile) to tell of Mencía’s (presumed) infidelity. Asked by the King what he has seen to unsettle him so, Gutierre says: ‘Nothing, men like me | don’t see; it’s enough that they imagine, | that they suspect […]’ (Médico, iii.2128–30). The line seems, in its reliance on imagination and suspicion, to be doing something rather different to Othello’s desperate plea for ‘ocular proof’ (Othello, iii.3.377), which ostensibly privileges and demands physical evidence or eye-witnessing as prerequisite to belief. However, we can see that his emphasis is not very different to Gutierre’s when Othello elaborates by insisting to Iago, Make me to see’t; or, at the least, so prove it, That the probation bear no hinge nor loop To hang a doubt on. (iii.3.382–84) The qualificatory ‘or, at the least’ shows that imagining or suspecting might also be enough [‘basta’] to convince Othello. What Gutierre insists he has, and what Othello claims he wants, are the same thing, as Quintilian would say, as ‘what the Greeks call phantasiai, (let us call them “visions”), by which the images of absent things are presented to the mind in such a way that we seem actually to see them with our eyes and have them physically present to us’ (Institutio, vi.2.29).12 The stakes in each case are enargeic. Kathy Eden has convincingly argued that theories of enargeia were developed in classical Greece for forensic purposes to aid orators arguing cases who ‘set out to reproduce the vividness of ocular proof through language’, for example in cases of adultery, where physical evidence might have been lacking.13 Ocular proof is then seen by the ‘mind’s eye’ [‘oculis mentis’] (Institutio, viii.3.62). And it is only a few steps from the use of classical forensic rhetoric in the forum, to what Adele Scafuro calls the ‘forensic disposition’ of Roman New Comedy, to the early modern education, rich in classical rhetorical training, to moments like these on the early modern stage.14 This line of thought has recently been developed in studies of anglophone law and literature; however, despite the apparent familiarity of playwrights such as Lope de Vega and Calderón with Roman New Comedy and the resonances between early modern English and Spanish education, this trajectory has not yet been explored in relation to Golden Age theatre.15 Lorna Hutson emphasizes the ubiquity of grammar school education in early modern England for its role in shaping the judicial awareness of dramatists through exercises in composition, a trend no less pertinent to the relationship between the stage and the Latin Schools of sixteenth- and seventeenth-century Spain.16 The concepts of proof on which Roman law and rhetoric depend, first defined by Aristotle in his Rhetoric and taken up by Quintilian, were part of such rhetorical education and are at work in Othello and El médico. Think, for example, of Desdemona’s lost handkerchief, or the dagger that Gutierre finds in his house, of Iago’s narration of Cassio’s supposed dream, or Don Enrique’s evasion of a question, all of which are interpreted as proof of adultery. As Kathy Eden explains, Aristotle distinguishes between two forms of proof [pisteis], one of which is termed inartificial [atechnos], and the other artificial [entechnos].17 Inartificial proof comprises such things as written documents, testimony, supernatural evidence of various forms, and other tokens, whereas artificial proof, as Quintilian best expresses, ‘comprises various means of creating belief’ (Institutio, v.8.1). Inartificial proofs (of which the handkerchief, the dagger, the dream, and even the evasion may be taken as examples), Quintilian explains, ‘in themselves involve no [rhetorical] art’ (Institutio, v.1.1). However, the distinction between these two kinds of proof is somewhat blurry. Although it is possible that inartificial proofs may in themselves be ‘indubitable’, it is much more likely that they will be ‘doubtful’ and will ‘stand in need of arguments’ to support them (Institutio, v.9.2). These proofs or tokens can and do become part of the narratio. The narratio or statement of facts (diēgēsis in Greek) is the story, the narrative account of events. Thus, meaningless in and of themselves, such tokens or proofs are imbued with dangerous potentiality through language and context, for as the plays in which they are found show, they can be incorporated into narrationes or stories for various purposes and to divergent ends. Mencía herself best encapsulates this concern when she follows her maidservant Jacinta’s suggestion that she write a letter to her former suitor Don Enrique, the Infante, despite her reservations about her husband Gutierre’s response should he find out. ‘Proofs of honour are dangerous proofs’ [‘pruebas de honor son peligrosas pruebas’] (Médico, iii.2409), she says, and indeed they are, for Gutierre reads her words, themselves an attempt to secure the image of her innocence, as incontrovertible proof of her infidelity. It is the unobservability of private sexual encounters that makes them in a sense the fodder for rhetorical persuasion. Inextricable from questions of honour and affective responses, they are especially vulnerable to interpretation and to the kinds of proof and persuasion Othello and Gutierre demand and to which they succumb. Not all narrationes are equally persuasive, however, and this brings us back to the notion of vividness or enargeia that plays a key role in the representation of adultery. Quintilian makes the same distinction as many of his Greek forbears in isolating a ‘plain statement of facts’, a simple diēgēsis or narratio, from a more ‘developed’ or vivid account (Institutio, viii.3.62–71).18 It is, then, the embellishment of the narratio of adultery, partly through the strategic inclusion or manipulation of inartificial proofs, that renders it vivid to the ‘mind’s eye’ (Institutio, viii.3.62). The experience hardens suspicion into belief, with or without justification. One creates a vivid and persuasive narratio most effectively, Quintilian contends, by bringing ‘before [our] eyes all the circumstances which one can believe to have happened during [an] event’ (Institutio, vi.2.31) in order to seem ‘not so much to be talking about something as exhibiting it’ (Institutio, vi.2.32). As Lorna Hutson and Joel Altman each show, this is precisely how Iago goes about convincing Othello of Desdemona’s (imagined) infidelity, building a cumulative picture of Cassio’s disloyalty and Desdemona’s lightness.19 Hutson points in particular to Iago’s use, following Quintilian, of ambiguous tokens to invite inference, which she convincingly links to the calculated creation of dramatic mimesis and powerful illusion, and which is also inextricably tied to affective response.20 Quintilian sees the primary function and aim of enargeic narrative as precisely the stimulation of emotions. For, he tells us, presented with a vividly embellished narratio, ‘our emotions will ensue just as if we were present at the event itself’ (Institutio, vi.2.31). We see this, too, in Othello. ‘Nay, but be wise,’ Iago cautions Othello, ‘yet we see nothing done’ (Othello, iii.3.448; emphasis mine), before deploying the ambiguous inartificial proof of the ‘handkerchief | Spotted with strawberries’ (Othello, iii.3.450–51) so that ‘it speaks against [Desdemona] with the other proofs’ (iii.3.457) which Iago has orchestrated and leaves Othello ‘fraught’ (Othello F1, iii.3.sig. tt5v).21 Yet what I find most interesting in the passage from which this is drawn is Iago’s repeated refusal to call Desdemona by name. Instead, he prefers to define her by her marital status: ‘Have you not sometimes seen a handkerchief | Spotted with strawberries in your wife’s hand?’ (Othello, ii.3.449–51; emphasis mine) he asks. ‘I gave her such a one,’ Othello responds, ‘’twas my first gift’ (Othello, iii.3.452), situating the handkerchief firmly within the narrative of their courtship and imbuing it with sentiment. ‘I know not that,’ Iago insists, ‘but such a handkerchief – I am sure it was your wife’s – did I today | See Cassio wipe his beard with’ (Othello, iii.3.452–54; emphasis mine). Returning once more to the affective and legal category of ‘wife’, Iago’s possessive construction invites Othello to feel the loss of the handkerchief, a synecdochic loss for that of his wife and marriage. Othello’s desolate speculation, ‘If it be that –’, hangs in the air before Iago cracks it open to interpretation: ‘If it be that, or any that was hers’ (Othello, iii.3.455–56). ‘Now do I see ’tis true’ (Othello, iii.3.460), says Othello, as though the imagination of the many handkerchiefs it could be increases the likelihood of her unfaithfulness. This mistrust of women dominated the early modern imagination, illustrated by works such as Juan Luís Vives’s De institutione feminae christianae [Instruction of a Christian Woman] (1524) and Robert Burton’s Anatomy of Melancholy (1621). For, as Burton tells us, ‘a woman had need to have an overseer to keepe her honest, they are bad by nature and lightly given all’ (Anatomy, sig. Tt8r).22 In what might be seen as early exercises in victim-blaming, women are encouraged by prescriptive literature to do all they can to avoid suspicion, including avoiding anything that might invite so much as an inference of wrongdoing. ‘[W]e read and hear tell of many wives slain by their husbands for the sole motive of jealousy,’ Vives tells us, and ‘[t]herefore every effort must be made to prevent the husband from being seized by these furies’ (De institutione, ii.6.75).23 ‘The wife will succeed in this only in one way,’ he goes on, that is ‘if she says or does nothing that may make her husband suspicious’ (De institutione, ii.6.75). Perhaps most crucial for my argument here, though, is his insistence that he often warns women ‘not to be deceived into thinking that it does not matter whether you actually do something or seem to do something’ (De institutione, ii.6.77). This insistence resonates with Stroud’s definition of the wife-murder genre itself, as plays ‘in which a husband – sometimes for love, sometimes for hate, sometimes for jealousy, sometimes in spite of himself – kills his wife, who may or may not be guilty of any particular offense’ (emphasis mine).24 ‘How can he chuse,’ Burton asks, ‘though he were another Socrates, but be suspitious and jealous?’ (Anatomy, sig. Vu3v). In short, at least according to Burton and Vives, he cannot. The husband they portray sees no difference between observing ‘his wife so lightly given, to be so free and familiar with every gallant’ and ‘tak[ing] notice of’ what they term ‘their more secret and slie trickes, which to comute their husbands they commonly use, they pretend love, honour, chastity, and seeme to respect their husbands before all men living’ (Anatomy, sig. Vu3v). Women are figured as ‘Saints in shew’, for ‘so cunningly can they dissemble, they will not so much as looke upon another man in [their husband’s] presence’ (Anatomy, sig. Vu3v). Vives specifically instructs women ‘not to plead for any man’s cause’ nor ‘send nor receive letters without the knowledge of her husband’, particularly if they ‘know him to be of a suspicious nature’, a sentiment that colours both Desdemona’s pleas on behalf of Cassio and Mencía’s letter to Enrique (De institutione, ii.6.77). ‘It is enough’ for men like Burton and Vives, like Othello and Gutierre, ‘that they imagine, that they suspect’ (Médico, iii.2126–31). Georgina Dopico-Black picks up this thread when considering Gutierre’s tragic misreading of Mencía and, like a number of critics, historicizes it within an early modern Spain preoccupied with purity of blood [limpieza de sangre] and in which the Spanish Inquisition took a particular interest in adultery.25 But Dopico-Black further contends that the obstacle to legibility in El médico is not, as we might expect, female irrationality, nor is it adultery’s unknowability. For her, it is ‘the accidental’ that ‘threatens or obscures legibility’ in Calderón’s play, which is ‘everywhere riddled by accident’.26 Dopico-Black means this in the sense of chance, discussing as her central example the opening moments of the play in which the Infante, Enrique, falls from his horse and knocks himself unconscious right outside Mencía’s house. And accidents of this kind do abound throughout the play, certainly as much as they do in Othello (think of the ever-changing destination of the fleet, or the dropped handkerchief), but accidents or circumstances, as Lorna Hutson has recently explored at length, have a further forensic rhetorical function.27 Thus while I agree that the accidental does impede legibility in Calderón, I do not see the accidents in and of themselves as posing obstacles to what the audience can identify as a correct interpretation. Instead, I propose that it is the rhetorical manipulation of, and the affective inferences drawn from, those accidents that hinder truth-seeking. Treating rhetorical accidents in his De copia, Erasmus points out that they are useful for confirmatory proof and probability and to help make an event or scene appear vividly before the eyes.28 Shakespeare uses this to great effect in Othello, where Iago’s circumstantial arguments about accidents such as the dropped handkerchief ‘help to thicken other proofs | That do demonstrate thinly’ (Othello, iii.3.446–47), ultimately driving Othello towards the ‘realization’ of Desdemona’s adultery. We see this at work also when Gutierre combs his house for signs of Mencía’s unfaithfulness after she alleges a thief was in her chambers. Initially, he finds nothing in his search, insisting that she was ‘fooled’ by a mere ‘phantasy’ (Médico, ii.1355–56), that her imagination conjured an intruder from thin air;29 that is, until he finds a dagger in her bedchamber, and rather like Othello responding to the handkerchief, is seized by an illusive fantasy of his own. ‘With suspicions’ [‘con sospechas y recelos’], Gutierre laments, this dagger presages his death, or rather the death of his honour (Médico, ii.1363), convincing himself of his wife’s adultery on the basis of mere circumstance and what he sees as probable. Gutierre later meets Don Enrique and, noting that he does not have a dagger on his person, we are told in an original stage direction that he compares the dagger he found with Enrique’s sword [‘coteja la daga con la espada’] (Médico, ii. 1532–33). Seeing that Enrique’s sword is of the same design as the dagger he found in Mencía’s chamber, Gutierre then begins to read guilt into the Infante’s behaviour in accord with his own suspicion. ‘Enrique did not answer anything; | no doubt he convinced himself of my cause’ (Médico, ii.1580–81), Gutierre nonsensically insists.30 Then, more reasonably, after professing to set aside his emotion [‘cese el sentimiento’], ‘we come to the cause, and perhaps find an answer’ (Médico, ii.1611–12).31 ‘’Tis true’ [‘es verdad’], he continues (Médico, ii.1616) – a phrase reminiscent of Othello’s vulnerability to enargeic representation – and goes on to ask ‘what testimony proves | That herein could not be a case of contingency?’ (Médico, ii.1624–26).32 In this meta-rhetorical moment, Calderón (through Gutierre) here draws attention to the legal or rhetorical case, or the matter, and to the contingent or circumstantial. Punning on contingencia as both chance and rhetorical circumstance (or accident), Gutierre gestures unwittingly to the dramatic irony of his own position in which he is about to convince himself through the rehearsal of proofs and circumstances of what we know to be his wife’s imagined adultery. Starting with the dagger, Gutierre moves quickly through a pro et contra argument, before admitting that ‘investigating the case further’ [‘apurando más el caso’] (Médico, ii.1635) has led him to believe that the dagger belonged to Enrique [‘que sea del infante’] and to settle the matter with a rhetorical question: ‘it couldn’t be that Mencía is not guilty?’ [‘¿no pudiera no estar culpada Mencía?’] (Médico, ii.1640–41). All of this is expressed in the subjunctive mood, shifting from present [‘sea’] to imperfect subjunctives [‘pudiera’] as he becomes more convinced of his wife’s guilt. Calderón continues to emphasize rhetorical effects as Gutierre, satisfied in his newfound knowledge, exclaims in a phrase that resists definitive translation: ‘Oh cuánto me estimo haber hallado esta sutileza’ (Médico, ii.1645–46). It is Calderón’s nod to the rhetorical that hinders translation, for hallado translates as both ‘found’ and ‘disposed’, rendering the phrase ‘How much I treasure having found/disposed this subtlety’, and punning on Gutierre’s simultaneous discovery and retrospective construction of Mencía’s infidelity. Returning now to Vives and the unceasing suspicion he sees as integral to jealousy, and of which he sees murder as an almost inevitable consequence, we can see the enargeic imaginings of Othello and Gutierre as driven by such affective forces. ‘With suspicions’ [‘con sospechas y recelos’] (Médico, ii.1363), Gutierre interprets the dagger and is driven by it to a ‘frenzied state’ [‘delirio’] (Médico, ii.1695). Iago seeks to put Othello ‘at least into a jealousy so strong | That judgement cannot cure’ (Othello, ii.1.281–82). It is the privileging of the affective over the reasoned, which Quintilian acknowledges can be used ‘to distract’ judges’ minds ‘from the truth’ (Institutio, vi.2.5), and from their ability to judge. And it is precisely this combination of rhetoric and affect, mobilized in the wild suspicions of husbands such as Othello and Gutierre about their wives’ continency, which leads them away from the truth and which, as they buy into the stories they tell to themselves and those told by others, transforms them into imagined cuckolds and actual murderers. * With this relation between rhetoric, affect and suspicion in mind, I now turn to consider an American lawsuit from the 1850s. Imagine, if you will, Washington, DC in 1858, and the area around Capitol Hill, a stone’s throw away from where the Folger Shakespeare Library now stands. There, an American congressman, Daniel E. Sickles, receives an anonymous note that describes in vivid detail his wife romping on a library sofa with a certain Philip Barton Key, a United States District Attorney.33 Soon after confronting and forcing a written and signed confession from his wife, Sickles looks out of the window of his residence only to see Key taking out a white handkerchief and waving it slightly while, seemingly idly, glancing in the direction of his house. Sickles arms himself, enlists the protection of two lackeys, and storms outside to accuse his rival. He then shoots Key repeatedly, and fatally, as the latter begs for his life. When bystanders rush to Key’s aid, Sickles says nothing but ‘He has dishonored and defiled my bed,’ over and over again.34 Though the case seems at first glance to sit far from Golden Age Spain and the words of Calderón that open this essay, Sickles’s case in some respects might appear more at home in the honour plays of the early modern stage than the pages of a nineteenth-century newspaper. The case became famous, though, not only for the prominence of its participants, but also because it was among the first cases in American legal history to use the defence of temporary insanity or what we might colloquially term a crime of passion.35 It also draws heavily and explicitly on Shakespeare’s Othello. Sickles’s passionate and murderous response to the discovery of his wife’s adultery is, perhaps unsurprisingly, likened to Othello’s, as a justified response to the dishonouring of his house – the doing of his office, to borrow Iago’s phrase (Othello, ii.1.371) – and in what follows I draw Calderón’s Gutierre, another suspicious husband, into this association. During Sickles’s trial, John Graham, his lead attorney, argued that Sickles’s actions were justified by the ‘old rule’ that mitigates a husband’s actions when he discovers his wife’s adultery, turning for further support of his client’s actions to the early modern stage, the classical world and the Bible.36 Thus, he argued, murdering an adulterer caught in the act becomes both justifiable and legal. As K. J. Kesselring and Hendrik Hartog point out, though, this ‘old rule’ did not, at least not in the strictest sense, really exist in law.37 Kesselring explains that such defences draw their support instead, as we see in Graham’s defence of Daniel E. Sickles, from a mixture of historical, biblical and psychological arguments.38 To these categories we might also add the literary, for the real strength of Graham’s defence, as The New York Times suggests, is Graham’s ‘interlarding [of] his address with Shakespeerian quotations’.39 While Kesselring traces the erroneous historiographical view that uxoricide was considered justifiable in early modern England to an influential historical article by Keith Thomas, one must wonder about the role of early modern drama in fuelling the misconception.40 Drawing on a combination of early modern English legal authorities such as Sir Edward Coke and Sir Matthew Hale (whose precedents continued to shape American law), and literary ones in the form of Othello, the defence cleverly (and successfully) argued that Sickles should not be held accountable for the murder of Philip Barton Key.41 By claiming that the trial seeks to ‘pronounce the estimate of an American jury upon the value of a husband’s honor’ and ‘to fix the price of the marriage bed’ (Opening, 16), Graham invites his audience to situate Sickles’s murder of Key, an adulterer, within what Scott K. Taylor calls the ‘rhetoric of honor’ of the early modern stage in which adultery and murder were justifiably interlinked.42 Adultery is from the outset defined, to a jury comprised entirely of married men, as ‘the greatest wrong that can be committed upon a human being’ (Opening, 4). And, Graham insists, this cannot be better expressed than by the words of Othello ‘over the supposed discovery of the inconstancy of his Desdemona’ (Opening, 4; Othello, iii.3.423–25). It does not matter to Graham that Desdemona was innocent any more than it matters to jealous Othello that she might have been, for mere suspicion is enough to threaten a husband’s honour. Neither Othello, nor Gutierre, nor Daniel E. Sickles saw their wives committing adultery; they did not catch them in flagrante. Each of them imagined or inferred it from particular circumstances and a combination of artificial and inartificial proofs: Othello from a narrated dream and a strawberry-spotted handkerchief, Gutierre from a dagger found in his chamber and an unanswered question, and Sickles from an anonymous accusatory note and a waving handkerchief. Graham tells the jury how the contents of the anonymous letter ‘gave Sickles such an inkling of facts as satisfied him there was something requiring investigation’, before enumerating the proofs that satisfied his client to show how, in a formulation adapted from Iago, ‘the proof thickened too strong against’ Sickles’s wife (Opening, 63–65). The underlying problem is that, despite his suspicions, it is impossible, or at the very least unlikely, for a husband to actually see an adulterous act. Thus, as Iago tells Othello, If imputation and strong circumstances Which lead directly to the door of truth Will give you satisfaction, you might ha’t. (Othello, iii.3.423–25) For what choice do husbands have? None, according to John Graham, who cites that very passage in support of his claim that ‘imputation and strong circumstances’ are ‘all that any husband can ever expect […] and if he is never invested with his right to kill until he has more than that, then it is denied him altogether’ (Opening, 36). What a husband must have to justify his actions, Graham suggests, is belief in his suspicions. I would like to turn here to the role of passion, another facet of this dynamic of suspicion, which seemingly both cuts across, and contributes to, believability and probability.43 ‘I see, sir, you are eaten up with passion’ (Othello, iii.3.408) Iago says to Othello, and it is, as we know, a suspicious passion that Iago feeds with his rhetoric and suggestion, much as Gutierre convinces himself of Mencía’s guilt. In each of these cases of adultery and murder, suspicion stimulates an enargeic imagining, and it almost does not matter whether or not the adultery is likely, or even possible. It is therefore useful here to recall Quintilian’s explanation that enargeic narrations ‘seem not so much to be talking about something as exhibiting it’, for then ‘Emotions will ensue just as if we were present at the event itself’ (Institutio, vi.2.32). Gutierre and Othello are ‘lovers’ who ‘cannot judge’ because ‘their feelings anticipate the perception of their eyes’ (Institutio, vi.2.6). Like Quintilian’s judge, the jealous husband ‘overcome by his emotions gives up any idea of inquiring into truth; he is swept along by the tide, as it were, and yields to the swift current’ (Institutio, vi.2.6–7). Othello and Gutierre saw the scenes of their wives’ infidelity with their ‘mind’s eye’ (Institutio, viii.3.62), and it is precisely this, I argue, which enables Graham’s defence of Daniel E. Sickles. For Sickles’s case to be successfully justified as a crime of passion, the seemingly impossible needed to be proved: that Sickles had in fact caught his wife and Philip Barton Key in the act. How else could his actions be deemed justifiable? His lawyers needed to bridge the epistemic gap of adultery, particularly given the perceptible lack of immediacy of action, a challenge to which there can arguably be no better solution than turning to the pages, or stages, of early modern drama and the exempla of Othello and El médico. For the answer again lies in enargeia. Sickles’s lawyers effectively insist that the adultery takes place when the husband first knows about it. Graham asks: If you caught the adulterer turning out of the bed in which your wife was, the coition would not then be taking place, but would you not then be pardoned for killing him? If you caught him coming out of a room where she was, in such a state as to indicate what he had been doing, would you not then be pardoned if you killed him? (Opening, 36) ‘You would have the same right as if you caught them in actual coition’ (Opening, 36), he insists. Crucially, he goes on, ‘The question is not as to how you catch them, but are the parties guilty, and are you satisfied and convinced of their guilt’ (Opening, 36). Graham here gradually distances us from the act of adultery while preserving the immediacy of its emotional impact. He proposes ‘that to catch the adulterer in the fact means to catch him so near the fact as to leave no doubt of his guilt’ (Opening, 36). Or, to recall Othello’s phrase, […] at the least, so prove it, That the probation bear no hinge nor loop To hang a doubt on. (Othello, iii.3.382–84) ‘Whether the fact actually takes place before the eyes of the husband, or he becomes satisfied of it by irrefragable proof,’ Graham proceeds, ‘is perfectly immaterial,’ because ‘It is the provocation that works on the human breast’ (Opening, 36). What he and Othello are arguing in effect is that the moment at which the husband is presented with, or constructs, and succumbs to an enargeic depiction of his wife’s adultery is equivalent to catching her in flagrante. ‘Let the knowledge of its existence be gained as it may,’ for it is the moment ‘when the proof strikes home, under the passion then excited’ that matters (Opening, 36). That is, seeing the act with the mind’s eye is believing. Suspicion becomes proof, just as it does in Othello and El médico, and this is driven by passion. * Is not the man who discovers some sign […] as much the victim of passion, as though he had surprised the adulterer in his guilt? Does it make any difference how the knowledge is gained? Is the spectacle more exciting than the belief? (Opening, 36) Each of these rhetorical questions that Graham posed during his opening speech in the case of United States v. Sickles might, as I hope to have shown in the course of this essay, equally be asked of Othello and El médico de su honra. And, arguably, these questions are asked in that courtroom as a result of the prominent roles they play in early modern drama, itself heavily influenced by Quintilian and the classical rhetoricians. Returning briefly to the question of what relation the Sickles case bears to early modern drama, we might equally and perhaps more productively rephrase it, and ask what might early modern drama tell us about the continued effects of rhetoric and literary citations in the courtroom. While emotional pleas of the kind advocated by Quintilian may be said to have no place in modern law, jurors and judges are ‘above all else, human beings’, susceptible to emotion and imagination.44 Psychological research into persuasion in the courtroom indicates what Quintilian, early modern dramatists and John Graham already knew: that vividly presented information, or enargeic representation, is more readily believed.45 One might therefore reasonably question whether the play of enargeia can ever be curtailed. ACKNOWLEDGEMENTS The research leading to this article has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP7/2007–2013) / ERC grant agreement no. 617849. I would also like to thank Toria Johnson, Alex Davis, Rebecca C. Tomlin, Elizabeth L. Swann and Tim Stuart-Buttle for their generous comments. Footnotes 1 [‘King: Gutierre, what is it that you saw? | Gutierre: Nothing: for men like me | don’t see, it’s enough that they imagine | that they suspect.’] Pedro Calderón de la Barca, El médico de su honra, ed. by Jesús Pérez Magallón (Madrid: Cátedra, 2012). All references to this work are from this edition and given parenthetically. The English translations are mine. 2 William Shakespeare, Othello: The Moor of Venice, ed. by Kim F. Hall (Bedford: St Martin’s, 2007). All references to this work are from this edition and given parenthetically, unless otherwise stated. Although I am not discussing race here, the dynamics of suspicion within Othello are racialized, as is the critical context of the play. For excellent work on Shakespeare and race, start with Kim F. Hall’s edition, and see: Shakespeare Quarterly, 67.1, ed. by Peter Erickson and Kim F. Hall (2016). Especially pertinent pieces therein for a consideration of Othello are: Vanessa Corredera, ‘“Not a Moor exactly”: Shakespeare, Serial, and Modern Constructions of Race’, 30–50; Kyle Grady, ‘Othello, Colin Powell, and Post-Racial Anachronisms’, 68–83; Ian Smith, ‘We Are Othello: Speaking of Race in Early Modern Studies’, 104–24. 3 Barbara Shapiro, A Culture of Fact: England, 1550–1720 (Ithaca, NY: Cornell University Press, 2000), p. 11. 4 Ibid. 5 Sir Edward Coke, Fasciculus Florum. Or A Handfull of Flowers (London: 1618), sig. C1r. Accessed at Cambridge University Library. 6 Sir Edward Coke, ‘Shelleys Case’, in Les Reports de Edward Coke (London: 1601), fol. 99b. Accessed at Early English Books Online (EEBO), <http://eebo.chadwyck.com/> [last accessed 4 October 2017]. 7 Stanley Cavell frames Othello’s tragedy, and by extension Desdemona’s alleged adultery, as what he terms an ‘epistemological problem’, but his discussion is invested in the skeptical debate about self-knowledge rather than proof and legal processes of knowing. ‘Othello and the Stake of the Other’, in Disowning Knowledge in Seven Plays of Shakespeare (Cambridge: Cambridge University Press, 1987), pp. 125–42 (p. 126). 8 For comparative readings of the two plays, see: Jesús López-Peláez Casellas, Honourable Murderers: El concepto del honor en Othello de Shakespeare y en los dramas del honor de Calderón (Bern: Peter Lang, 2009); Edward M. Wilson, ‘A Hispanist Looks at Othello’, in Spanish and English Literature of the Sixteenth and Seventeenth Centuries (Cambridge: Cambridge University Press, 1980), pp. 201–19. 9 Matthew D. Stroud, Fatal Union: A Pluralistic Approach to the Spanish Wife-Murder Comedias (Lewisburg, PA: Bucknell University Press, 1990), p. 13. 10 To clarify my terms, I am using transnational here to describe concerns that seemingly traverse national bounds while being expressed in culturally contingent ways. I, like many scholars, use ‘passions’, ‘emotions’, ‘feelings’ and ‘sentiments’ interchangeably. However, following Brian Massumi, I consider affect to be distinct. When I use the term ‘affective rhetoric’, therefore, I am drawing on Massumi’s figuration of ‘affect’ as ‘intensity’ and suggesting a non-specific intensity of response to vivid rhetoric. Brian Massumi, Parables for the Virtual: Movement, Affect, Sensation (Durham, NC and London: Duke University Press, 2002), p. 28. For a succinct overview of the relationship between these terms, see Ravit Reichman, ‘Law’s Affective Thickets’, in New Directions in Law and Literature, ed. by Elizabeth S. Anker and Bernadette Meyler (Oxford: Oxford University Press, 2017), pp. 109–22 (p. 111). 11 I am thinking in particular here of Lorna Hutson, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford: Oxford University Press, 2007), pp. 104–45, and Joel Altman, The Improbability of Othello: Rhetorical Anthropology and Shakespearean Selfhood (Chicago, IL: University of Chicago Press, 2010), pp. 183–206. 12 Quintilian, The Orator’s Education, ed. & trans. by Donald A. Russell, 5 vols, Loeb Classical Library (Cambridge, MA: Harvard University Press, 2001). All references to the Institutio oratoria are taken from this edition and given parenthetically. 13 Kathy Eden, Poetic and Legal Fiction in the Aristotelian Tradition (Princeton, NJ: Princeton University Press, 1986), p. 72. 14 Adele Scafuro terms the rhetorical and legal thrust of Roman New Comedy its ‘forensic disposition’, a conception influential in later work on early modern law and literature, given the influence of Terentian and Plautine New Comedy in particular on early modern drama by way of its role in the early modern curriculum. Adele Scafuro, The Forensic Stage: Settling Disputes in Graeco-Roman New Comedy (Cambridge: Cambridge University Press, 1997), p. 25. Cf. Hutson, The Invention of Suspicion, pp. 146–216. 15 For England, see Quentin Skinner, Forensic Shakespeare (Oxford: Oxford University Press, 2014). Lope de Vega famously alludes to Terence and Plautus in his El arte nuevo (ll. 40–46), where he insists that removing them from his study renounces their influence on his comedias. Calderón has, on occasion, been positioned at the endpoint of the influence of Roman New Comedy in shaping Spanish intrigue drama. See John Colin Dunlop, History of Roman Literature from its Earliest Period to the Augustan Age, 2 vols (Philadelphia, PA: 1823–24), ɪ (1823), p. 321. This is not to suggest that there is not a wealth of excellent work in hispanic law and literature, but rather that the two nodes of the field have developed in methodologically distinct ways. 16 Hutson, The Invention of Suspicion, p. 127. For more on Spain, see Sarah Nalle, ‘Literacy and Culture in Early Modern Castille’, Past and Present, 125 (1989), 65–96; Richard Kagan, Students and Society in Early Modern Spain (Baltimore, MD: Johns Hopkins University Press, 1974). 17 Eden, Poetic and Legal Fiction, pp. 12–13. Donald Russell’s edition uses ‘nontechnical’ and ‘technical’ to describe these categories of proof, but I prefer Eden’s notation. 18 Ruth Webb, Ekphrasis, Imagination and Persuasion in Ancient Rhetorical Theory and Practice (Burlington, VT: Ashgate, 2009), p. 89. 19 See Hutson, The Invention of Suspicion (2007), pp. 104–45, and Altman, The Improbability of Othello, pp. 183–206. 20 Hutson, The Invention of Suspicion, p. 127. 21 In this instance, Kim Hall, in line with the Oxford Shakespeare and the Norton Shakespeare prefers ‘freight’ (iii.3.465), glossed as ‘burden’. However, in both the quarto and folio (F1) texts of the play, we find ‘fraught’, which I here prefer. While this can mean ‘freight’, it also bore an emotional resonance of anguish that is obscured by the editorial intervention. William Shakespeare, ‘The Tragedie of Othello, the Moore of Venice’, in Mr William Shakespeares Comedies, Histories, and Tragedies (London: 1623), sig. Ss3v–Vv6r (sig. Tt5v), and The Tragoedy of Othello, the Moore of Venice (London: 1622), sig. H3v; both accessed at EEBO, <http://eebo.chadwyck.com/> [last accessed 23 November 2017]. 22 Robert Burton, The Anatomy of Melancholy (London: 1621). Accessed at EEBO, <http://eebo.chadwyck.com/ > [last accessed 17 September 2017]. All references to this work are from this edition and given parenthetically. 23 Juan Luís Vives, De institutione feminae christianae, ed. by C. Matheeussen and C. Fantazzi, trans. by C. Fantazzi, 2 vols (Leiden: Brill, 1996–98), ii (1998). All references to this work are from this edition and given parenthetically. 24 Stroud, Fatal Union, p. 13. 25 Georgina Dopico-Black, Perfect Wives, Other Women: Adultery and Inquisition in Early Modern Spain (Durham, NC: Duke University Press, 2001). 26 Ibid, p. 46. 27 Lorna Hutson, Circumstantial Shakespeare (Oxford: Oxford University Press, 2016). 28 Desiderius Erasmus, De copia, i. 6. 202–215, 218, 230. This passage from Erasmus is expounded by Lorna Hutson, who uses it to evidence Shakespeare’s use of circumstances in his dramatic practice. See Lorna Hutson, ‘The Shakespearean Unscene: Sexual Phantasies in A Midsummer Night’s Dream’, Journal of the British Academy, 4 (2017), 169–95 (p. 178). 29 [‘¿Qué ilusión, que vanidad | desta suerte de burló?’] 30 [‘Nada Enrique respondió | sin duda de convenció | de mi razón.’] 31 [‘Pero vengamos al caso; | quizá hallaremos respuesta.’] 32 [‘¿Qué testigo prueba | aquí que no pudo ser | un caso de contingencia?’] 33 The case was covered in seemingly exhaustive detail in The New York Times, given its perceived national interest and salacious nature. This raises methodological challenges in terms of accuracy, mediation and bias. See: Jeremy Patrick, ‘Beyond Case Reporters: Using Newspapers to Supplement the Legal-Historical Record (A Case Study of Blasphemous Libel)’, Drexel Law Review, 3.2 (2011), 539–60; Judith Rowbotham and Kim Stevenson, ‘Editorial. Answering Baker: Utilizing ‘Best’ Evidence. The Challenge for Socio-Legal Studies’, Liverpool Law Review, 28 (2007), 319–26. I am grateful to Helen Pringle for drawing my attention to this online archive and this body of scholarship. 34 Special Correspondent, ‘The Sickles Tragedy’, The New York Times, 8.2353, 5 April 1859, p. 1. All issues of The New York Times were accessed at: New York Times Archive, <https://archive.org/stream/NYTimes-Apr-Jun-1859> [last accessed 19 June 2017]. 35 For other general accounts of this case, see: Marilyn and Robert Aitken, ‘Crime of Passion Defense’, in Fundamentals, ed. by Stephen G. Good (=Litigation, 36.1 (2009)), 51–54; Anon., ‘A National Morality Play: The Trial of Daniel Edgar Sickles for the Murder of Philip Barton Key’. Accessed at <http://www.assumption.edu/dept/history/Hi113net/sickles/default1.html> [last accessed 19 June 2017]. 36 ‘The Sickles Tragedy’, The New York Times, 8.2358, 11 April 1859, p. 1. 37 K. J. Kesselring, ‘No Greater Provocation? Adultery and the Mitigation of Murder in English Law’, Law and History Review, 34.1 (2016), 199–225. See also Keith Thomas, ‘The Puritans and Adultery: The Act of 1650 Reconsidered’, in Puritans and Revolutionaries, ed. by Donald Pennington and Keith Thomas (Oxford: Clarendon Press, 1978), pp. 257–83 (p. 268). The trend that Kesselring identifies is not confined to England; Hendrik Hartog situates the Sickles case as the start of a trend in nineteenth-century American law in which a series of husbands were acquitted after killing men suspected of committing adultery with their wives. ‘Lawyering, Husbands’ Rights, and “the Unwritten Law” in Nineteenth-Century America’, The Journal of American History, 84.1 (1997), 67–96 (p. 70). 38 Kesselring, ‘No Greater Provocation?’, p. 201. 39 ‘The Sickles Tragedy’, The New York Times, 8.2356, 8 April 1859, p. 1. 40 Kesselring, ‘No Greater Provocation?, p. 201. Scott K. Taylor gestures to the similarly mistaken understanding of cultural attitudes towards adultery in Golden Age Spain, and blames too rigid adherence to notions of the honour code and the popularity of wife-murder plays. See Scott K. Taylor, Honor and Violence in Golden Age Spain (New Haven, CT: Yale University Press, 2008), pp. 194–225. 41 John Graham, Opening Speech of John Graham, Esq. (New York: 1859). All references to this work are from this edition and given parenthetically. 42 Taylor, Honor and Violence, p. 9. 43 Both Altman’s (in The Improbability of Othello) and Hutson’s arguments (in The Invention of Suspicion) about (im)probability in Othello and its role in mimesis are brilliantly persuasive, and make a convincing case for the roles that likelihood and inference play in creating belief. 44 Richard A. Katula, ‘Emotion in the Courtroom: Quintilian’s Judge – Then and Now’, in Quintilian and the Law: The Art of Persuasion in Law and Politics, ed. by Olga Eveline Tellegen-Couperus (Leuven: Leuven University Press, 2003), pp. 145–68. Terry A. Maroney further raises very pertinent questions on ‘emotional regulation’ in ‘Emotional Regulation and Judicial Behaviour’, California Law Review, 99.6 (2011), 1485–555. 45 For a good summary of some of this work, see Robert J. Nemeth, ‘Enhanced Persuasion in the Courtroom: Visually Dynamic Demonstrative Evidence and Juror Decision Making’, in Handbook of Trial Consulting, ed. by Richard L. Wiener and Brian H. Bornstein (New York: Springer Science & Business Media, 2011), pp. 203–15, esp. pp. 210–12. © The Author 2017. Published by Oxford University Press for the Court of the University of St Andrews. All rights reserved. The University of St Andrews is a charity registered in Scotland: No. SC013532.
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