Milton's Jurisprudential Play


Review of Courts, Jurisdictions, and Law in John Milton and His Contemporaries, by Alison Chapman

Chicago & London: University of Chicago Press, 2020


The legal system of England in the seventeenth century is a misnomer. Rather, a dizzying array of jural systems, including common law, canon law, Civil law, equity, merchants’ law, forest law, and local and manorial laws, amongst others, operated in the period. Each had their own bodies of laws, jurisdictions, judicatures, procedures, standards, and customs. So too, they approached the critical questions of justice and the individual’s rights, interests, and freedoms from a different set of underlying histories and norms. The foundational role of Roman law and natural law precepts to these jurisdictions further complicates our appreciation both of the diversity of legal systems in England and the complex ways in which they adjudicated conflicts. The steady encroachment by the common law on other judicatures and efforts during the seventeenth century to reform the law offer added complexities.

Poets and dramatists weighed in on legal matters, including jurisdictional struggles, to a remarkable degree throughout the early modern English period, and jurisprudential themes in the works of John Donne, Edmund Spenser, William Shakespeare, and Ben Jonson, to name but a few, have received extensive critical treatment. The Oxford Handbook of English Law and Literature, 1500-1700, edited by Lorna Hutson, offers a rich sampling of recent insights and approaches. 

Yet, surprisingly, John Milton—political thinker, polemicist, and statesman as well as poet—has received less critical treatment. Notable contributions to our appreciation of Milton’s thinking on Roman, criminal, international, natural, and Mosaic law include the work of Martin Dzelzainis, Barbara Breasted, Christopher Brooks, Sharon Achinstein, Elizabeth Sauer, R. S. White, Joseph Jenkins, and Jason Rosenblatt, amongst others. Alison Chapman, in The Legal Epic: Paradise Lost and the Early Modern Law and a series of articles, joined these critics in opening up the field. 

Chapman’s new book, Courts, Jurisdictions, and Law in John Milton and His Contemporaries, extends her prior examinations and makes a significant contribution to our understanding of how Milton approached the existing patchwork of English legal systems, paying particular attention to civil law, common law, equity, and Roman law of the continent. Directed in its focus, the book concentrates on Milton’s treatment of civil, or private, rather than public law. In a more limited manner, the book extends its inquiry beyond Milton to offer brief comparative readings of works by George Herbert, John Donne, and Ben Jonson, and the trial of John Bunyan for violating the Conventicles Act. These discussions serve as juxtapositions, placing Milton’s ideas on juridical matters within their larger contemporaneous discussions.

Chapman argues that Milton, perhaps “more than any other major figure in the seventeenth century” (2), thought about the different legal systems and had an impressively intimate understanding of their intricacies. As his treatises’ numerous citations to legal treatises attest, his readings in comparative law were extensive. He also found himself in complex litigations in multiple jurisdictions throughout his adult life, particularly in proceedings in both common law and equity courts over the Forest Hill estate and for repayment of Sir John Cope’s bond, as Chapman notes. This was not an uncommon practice in the period. Savvy litigants often court-hopped in order to take advantage of different jurisdictions’ standards, enforcement tactics, and remedies.

Chapman carefully examines a corresponding approach to Milton’s legal reasoning that plays itself out over the course of his prose career. He jurisdiction-shopped, one could say, when a particular system afforded him an advantageous jurisprudential methodology. As she details, “Milton’s stance toward legal systems varies according to the subject at hand” (147). The particular value of this book is its foregrounding of how juridico-legal reasoning undergirds many of Milton’s prose treatises and how he cleverly chose and played with particular jurisdictions’ underlying precepts, terms, and procedures in order to ground particular arguments. Chapman scrupulously demonstrates how Milton’s privileges the common law’s approach to defamation in his antiprelatical tracts and Areopogitica, but then dramatically switches to civil law, the dominant system on the Continent, for its jurisprudence in his divorce tracts and its procedure in Pro See Defensio. Nevertheless, as she rightly points out, throughout his writings, Milton evinced an “implacable” hostility to canon law (147).

An underlying thread that weaves its way through the chapters is how Milton brought to bear his “exceptionally well-stocked jurisdictional toolkit” (3) in his prose writings to consider questions involving individual choice and personal freedom. Throughout the seven chapters, Chapman persuasively argues that “different systems of law provided Milton with highly flexible ways to think about different questions of liberty, a subject that occupied him intensely throughout his lifetime” (3). 

Milton himself provided a libertarian frame for considering the different subjects of his polemical writings in his 1654 Second Defence of the English People. As he writes, “I observed that there are, in all, three varieties of liberty without which civilized life is scarcely possible, namely ecclesiastical liberty, domestic or personal liberty, and civil liberty” (Complete Prose Works of John Milton, IV: 625). Thus, Milton insisted, we may consider his prose writings as divided consciously and deliberately into these three arenas. Chapman’s study charts a similar course, as the chapters move from a consideration of ecclesiastical liberty in his antiprelatical works, through personal questions of liberty in his free speech and divorce tracts, to his later political treatises that advise the wholesale re-envisioning of the structure of England’s judicial systems. 

Two contrasting tendencies oscillate in Milton’s approach to civil law. Milton’s distrust of man-made law is patent. He saw uniform bodies of law, strictly construed, as having the potential to infringe upon the free will and liberty of the individual. David Quint observes in Epic and Empire that Milton’s writings suggest his “resistance to statism, to centralizing projects that intruded on individual and local authority” (324). Chapman develops this observation to argue that central to Milton’s juridical positions is the idea that “the enforcement of civil order should not simply be in the hands of state officials and that the people themselves should be involved in regulating the societies they live in” (51). Yet, Milton was no antinomian. While retaining skepticism towards, and often offering overt criticism of, each of the existing jural systems, he saw the need for the rule of law, equitably applied, to foster and maintain social order. Imbued with reason, attentive to natural and divine law precepts, mankind, in Milton’s mind, had the potential to articulate laws that promote justice. Chapman’s analysis throughout is sensitive to these competing motions in Milton’s juridico-legal thinking. By attending to the legal rhetoric of Milton’s prose, Chapman thereby offers a new lens by which to consider Milton’s libertarian ideals, one that augments Quentin Skinner’s and David Norbrook’s magisterial works on the classical republican ideas and rhetoric of Milton’s prose. 

A second sub-theme of Chapman’s analysis is Milton’s concern with free speech and its limits, to which she devotes three separate chapters. Several interrelated questions ground these chapters: “When should one speak up in one’s defense? Can true words be defamatory? What makes certain words legally actionable?” (19) In chapter 2, Chapman considers two of his early antiprelatical treatises, Animadversions upon the Remonstrants Defense against Smectymnuus and An Apology against a Pamphlet Called a Modest Confutation of the Animadversions upon the Remonstrant against Smectymnuus, in which Milton interrogates the nature of injurious speech by contrasting its two dominant legal constructions in England: the civil crime of seditious libel and the common law tort of defamation. In these treatises, Milton privileges common law jurisdiction, as Chapman astutely demonstrates, because of its private nature, offering individuals protection against personal abuse through their own prosecutions. In defamation suits, the individually aggrieved party brought the suit, therefore litigated and even settled it, and personally obtained damages for the injury. Chapman, in emphasizing that Milton’s primary focus was on controlling insulting words, rather than governmental efforts to censor speech, deviates from the majority of critics who have approached his thinking on free speech from a political perspective, treating the issue of free speech predominantly as a question of governmental control. 

In chapter 3 Chapman extends her discussion by turning to Areopogitica, in which Milton again ponders the limits of speech, this time in the context of book licensing and censorship. Her focus on legal, rather than political, valences serves to clarify a persistent difficulty that critics have faced in the seeming inconsistencies of Areopogitica. While a stirring call for the fundamental right of free speech, the treatise also tolerates post-publication censorship. Chapman insists that Milton‘s concern again is to protect individuals from injurious speech. Rather than endorsing state apparatuses that have the power to censor political and religious speech, Milton sought to provide protection to individuals from untrue and damaging attacks. One of the implications of Chapman’s analysis worth underscoring is that efforts to analyze the political and rhetorical aspects of Areopogitica (in particular, Annabel Patterson’s discussion of the treatise in her work on censorship) are incomplete without careful attention to the material and legal aspects of Milton’s argument. 

Similarly, Chapman’s analysis of Milton’s Doctrine and Discipline of Divorce and Tetrachordon throws into sharp relief the incompleteness of prior readings of his divorce tracts, which have productively unearthed their theological, marital, and sociocultural views but have largely failed to consider their legal underpinnings. She examines how Milton borrowed from the civil law of the Continent, and in particular Roman jurists’ application of the principle of internal equity. Their methods of equitable interpretation permitted statutes to be “read not in a restrictive way for the letter of the law but rather in a more accommodating way for their perceived intent” (80). Rather than transcending the legal realm, Milton’s arguments, as Chapman concludes, reflect civil juristic thinking and assumptions in “foundational” ways (79).

Chapman’s precise definitions of legal terms and the clarity and readability of her style make this work digestible to readers who do not have a grounding in legal history and of interest to scholars and students of early modern history, political theory, law, and literature. The beginning of her book provides succinct and helpful introductions to many of the jural systems of import to her book, and throughout her discussions she provides careful descriptions of causes of actions, standards, and procedures. 

This approach serves her well. By revealing the “legal scaffolding” (9) of Milton’s arguments, she is able to offer readings that at times operate as correctives to prior critical analyses. In chapter 5, “Defending Pro Se Defensio,” she foregrounds how rhetorical approaches have focused on the treatise’s vituperative and ad hominem attacks on his opponent, Alexander More. Chapman demonstrates that, not a gratuitous character assassination as critics have generally concluded, the treatise functions rather as a carefully constructed case in which Milton accuses and then textually indicts and convicts More for libel under Roman law. She does a great service to readers by underscoring that our notions of authorship, hearsay evidence, character, and legal infamy differ dramatically from those of the early modern period. 

She offers a particularly useful comparison in this chapter juxtaposing Milton’s approach to libel in Pro Se Defensio and Jonson’s dramatization of a libel prosecution in his 1601 play Poetaster. Both works, sensitive to jurisdictional limits, rely on Roman law, as the injurious words at stake in both “cases” were not legally cognizable offenses in England. By expanding its discussion of libel to Jonson’s drama, Chapman’s book tacitly joins a rich body of critical scholarship that has explored depictions of slander trials in early modern drama. Studies by M. Lindsay Kaplan and Ina Habermann, in particular, offer apposite readings that complement Chapman’s own. 

Throughout the book, Chapman re-glosses terms of legal significance, often pointing out how prior translations of Milton’s Latin treatises and annotations by editors have obfuscated their technical juridico-legal meanings. There is a particular deftness, and even wit, in her careful attention to legal terminology. This skill is on full display in chapter 6, “The Tithes of War: Paying God Back in Paradise Lost.” The only chapter to discuss Milton’s poetry, it offers a welcome addition to her Legal Epic. She sees Milton’s critique of the canon law of tithes as leaving a “wider footprint” on the poem than critics have noticed, particularly in the “series of legal and financial allusions [that] weave through Satan’s puns both in Books 4 and 6 of the poem” (132). Here, her creative playing with these puns and homologies bears resemblance to Milton’s own. Thus, for example, she deconstructs Satan’s “discharge” of his cannons (Paradise Lost, 5.564; 4.57) by stressing its meanings in the language of debt and hearkens back to one of her central points that Milton is hostile to ecclesiastical law as its “ordinances can be turned into ordnance and its canons into cannons” (133).

While Chapman otherwise limits her discussions to Milton’s prose, her excavation of the legal language of debtor law in Paradise Lost lends itself to expansion. His frequent use of metaphors of debt and credit to consider humans’ relationship to God, for example, takes on new meaning in light of Chapman’s discussions of the jurisprudential implications of Satan’s “debt… of gratitude” (Paradise Lost, 4.50). Her analysis invites us to consider his autobiographical Sonnets VII, XIX, and Ad Patrem, and the seduction scene between the Lady and Comus in A Masque Presented at Ludlow Castle from this lens. 

So, too, Chapman offers a rich analysis of Milton’s derogatory references to principles of external equity in the divorce tracts, using such terms as “permissions,” “indulgences,” and “dispensations” (91). Samson Agonistes bears centrally on the question of God’s dispensations, and while this term has been considered theologically and morally in the context of the drama, it has yet to receive juridical treatment. The work’s stance toward comparative laws more centrally supports Chapman’s thesis, as it problematizes the relativity of both the Philistine and Hebraic jural systems.

The final chapter of Chapman’s book provides a much-needed survey of Milton’s late prose—those works written in a flurry on the eve of the Restoration in 1659-60 in which Milton made dramatic, but ultimately ineffectual, efforts to stave off the return of monarchical rule. She focuses on five of the six pamphlets that directly set out his visions for legal reform and reminds that they advocate “for a decentralized model of legal authority, in which local communities assume more of the work of making and applying laws” (151-52). She contextualizes his appeal within the larger legal reform movement to emphasize how much Milton differs from Sir Edward Coke and Matthew Hale, who were intent on institutionalizing common law primacy. 

In considering the span of Milton’s prose career, one is struck upon reading Chapman’s book by his consistent concern with liberating individuals from any one centralizing and uniform body of laws, whether legal or ecclesiastical. Chapman’s careful teasing out of the many ways that the treatises rely on and are indebted to the precepts, norms, and assumptions of multiple jural systems both in England and the Continent reveals the extent to which he models for his reader the intellectual practices and processes of free will itself. Sifting through the contrasting merits and attributes of different jurisdictions’ tenets offered Milton the liberty to pick those that aided his arguments. In his own words, “when God gave him reason, he gave him freedom to choose, for reason is but choosing” (Areopogitica, CPW, III: 526).



Posted on 6 May 2021

LYNNE GREENBERG is Associate Professor of Seventeenth-Century Literature at Hunter College, CUNY in New York. She writes on Milton, law, and gender. Her memoir The Body Broken was published by Random House in 2011.