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1. Cultivating Equity, Disciplining Race: The Fictional Method and the Origins of Law in Later Stuart England
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1 c h a p t e r o n e Cultivating Equity, Disciplining Race The Fictional Method and the Origins of Law in Later Stuart England Equity is justice that goes beyond the written law. —Aristotle, Rhetoric 1.13.13 What race once instructed in the most refined arts, but ceasing to cultivate the humanities, did not sink sometime into barbarity and savagery? —Jean Bodin, Method for the Easy Comprehension of History This is a book about the fictionalization of the origins of law in later Stuart England. My focus is on crucial literary texts such as John Milton’s Paradise Lost and John Dryden’s Indian Emperour, works devoted to demanding of their audience a set of structured interpretive deliberations about the first principles of government, the charismatic utterance of law, and the transition from savagery to civility. At the heart of such an intellectual program is the norm and practice of equity, that merciful inclination and “gentle art of particular perception.”1 Equity is a moral principle (equal justice,fairness),an interpretive method (summoning the original intention or spirit of a law in order to judge fully particular acts or events), and a gesture of sovereign mercy (relaxing the rigorous letter of the law in order to ensure justice). For the writers I study, equity is a habit of thought that may be cultivated through fictional methods. 1. This elegant phrase is Martha Nussbaum’s. See her wonderful essay “Equity and Mercy,” Philosophy and Public Affairs 22 (1993). 2 Lines of Equity It is an ethos of deliberative judgment rooted in classical and Christian moral philosophy and imagined as a first halting step forward out of the brutal traumas of the mid-century. This is not a book about the relation between literature and the seventeenth-century equity courts (Chancery, High Commission, Star Chamber), nor indeed is it in any meaningful way a study of the entanglement of literary texts with the professional judiciary. I take as a given the claim advanced by scholars such as Susan Staves, Nigel Smith, Steven Zwicker, and Victoria Kahn that in the later Stuart period, serious literary texts are a crucial language for the public constitution of the legal norms and conceptions of sovereignty, subjecthood, and political authority.2 Moreover, I share the view that literary texts are often the most effective and lasting language for explaining and legitimating legal regimes. As Robert Cover has written, “Law and narrative are inseparably related. Every prescription is insistent in its demand to be located in discourse—to be supplied with history and destiny.And every narrative is insistent in its demand for its prescriptive point, its moral. History and literature cannot escape their location in a normative universe, nor can prescription . . . escape its origin and its end in experience.”3 This book’s enterprise is to describe one historical moment of such powerful contextualization—I look not at the narratives attached to the unwritten English common law (although such a project deserves further attention) but instead at a cluster of Restoration-era texts that take part in what Michael McKeon has described recently as the process of political “explicitation.” In his view, the later Stuart period witnesses not just the skeptical demystification of jure divino absolute kingship,but more broadly the rise of a new“modern”epistemology in which political authority must be rendered explicit—justified and legitimated in public controversy rather than tacitly naturalized as an immanent aspect of a traditional order. For McKeon, the seventeenth century hosts the epistemological elevation of inner life—the separation of public from private in a “movement inward” and a progressive “detachment of the normatively absolute from its presumed locale in royal absolutism and its experimental relocation in ‘the people,’ the family, women, the individual, and the absolute subject.”4 In this powerful account, absolutism unmakes itself by revealing its secrets, by explicitly articulating the terms and qualities of sovereignty in response to the 2. Susan Staves, Players’ Scepters: Fictions of Authority in the Restoration (Lincoln: University of Nebraska Press, 1979); Nigel Smith, Literature and Revolution, 1640–1660 (New Haven:Yale University Press, 1994); Steven Zwicker, Lines of Authority: Politics and English Literary Culture, 1649–1689 (Ithaca: Cornell University Press, 1993);Victoria Kahn, Wayward Contracts:The Crisis of Political Obligation in England, 1640–1674 (Princeton: Princeton University Press, 2004). 3. Robert M. Cover,“Nomos and Narrative,” Harvard Law Review 97 (1983): 4–68. 4. Michael McKeon, The Secret History of Domesticity: Public, Private, and the Division...