- Rape's Hypothetical in Shakespeare's Measure for Measure
In a mostly faithful redux of the Ciceronian categories "who, what, where, with what help, why, how, when," Edward Coke's Institutes advise a plaintiff on how to make a credible complaint in a court of law.1 "[T]he count of the appellant," he declares, "must comprehend these seven things: 1. The fact, 2. the yeer, 3. the day, 4. the hour, 5. the time of the king, 6. the Town where the fact was done, and lastly, with what weapon."2 "[T]he fact" in this context is roughly synonymous to our modern word "crime," and the last things to come are the place, "the Town where the fact was done," and the "weapon." But before that are the temporal markers proceeding from biggest to smallest: the "yeer" to the "day" and, finally, the "hour." Coke's gentle modulation of Cicero's ordering suggests a subtle difference in priority—where Cicero places time last, Coke places it second only to the crime; where Cicero supplies only one time-related word, "when," Coke's formula gives four out of seven categories over to the identification and careful subdivision of time. Coke's gloss on "Le jour" goes on to specify it in terms of diurnal rhythms and a composite of smaller hours: "the naturall day, comprehending both the Solare day, and the night also, containing 24 hours."3 I take Coke's language to indicate the new ways that common law was encouraging people to consider crime as an irruptive action taking place in a bounded temporality. Specifically, I argue that crime was imagined as occurring in a special and constrained interval of time approximate to the occasion, which was represented as an interruption in time's "naturall" ongoingness in which "Solare day" predictably gives way to night.
During this period, an increasingly litigious culture began to refine its ideas of what counted as a crime, and how it could be recognized as such. The definition [End Page 270] of crime, as well as its causes and effects, was a principle project of the rising common law, which was animated by the empiricist principles of outward evidence and practical reason. Critics have established that the growing popularity of common law as a heuristic for thinking about social life had a profound impact on the literature of the early modern period, particularly drama.4 Much work has been done, for example, on the role of physical objects and witnessing as proof of past actions and intentions. Less attention, I contend, has been given to the function of time-telling as a legal instrument that was central to forensic rhetoric and types of contract-making, taking the forms of measuring, predicting, and anticipating.
In the Institutes, Coke did much to streamline the definition of rape, especially in his attempts to clarify the long-standing ambiguity between rape and ravishment.5 Coke's descriptions of rape need to be read in the context of his suggestions for reforming existing English rape laws based on his perception of their leniency and definitional inaccuracy. It is my sense that the lawyer mobilized newly precise conceptual definitions as a means of justifying and administrating more severe punishments, which he regarded as having been eroded by a culture of private restitution including subsequent offers of marriage or payments. As part of his commentaries on Westminster 1 (1375) and Westminster 2 (1385), which downgraded rape's customary penalty from death and castration to fines and imprisonment, Coke makes an urgent case for the full adjudication of sexual assault under the common law.6 Coke's definition of rape is innovative in its anatomical precision, comparable only to the definition elaborated in the later work of Matthew Hale: Coke argues explicitly for the occurrence of genital "penetration" and suggests there may be "emissio seminis" [seminal emission].7 In this essay I am particularly interested in how Coke supplements his definitional [End Page 271] project with a humoral theory of rape's causation, defining the proclivity to assault in terms implicitly recalling popular Galenic ideas about the relationship of temperature to action.8 In a...