Trial practices are poised between skepticism and anti-skepticism; they rest on the assumption that guilt and innocence can be discovered, and yet also assume that true certainty cannot be attained. Legal presumptions and legal fictions—for example, that the man married to a woman who bears a child is the child’s father—are used to fill in gaps where knowledge is uncertain. Prosecution of suspected crimes—or, for that matter, litigation of civil matters between individuals—could not take place in a climate of absolute
skepticism, where “nothing can be known and no decision be worthy of acceptance.”123 Instead, in the early seventeenth century, English law evinced an epistemology “of
probability . . . in which decision making could not be delayed indefinitely on the grounds of 123 Shapiro, Culture 31.
insufficiently certain knowledge.”124 The legal system operated—and had for centuries—on the belief that “ephemeral ‘facts’ of human action could be established with a high degree of certitude and that ordinary persons had sufficient ability to evaluate testimony for credibility . . . in order to arrive at impartial, truthful verdicts guided by their intelligence, reason, and conscience.”125 Further, skepticism is a recipe for acquittal, not conviction, and most felony defendants were convicted.
The standard of proof emphasizes how a juror should feel after the verdict. The satisfied conscience standard asks jurors to recognize that they are dealing with a person’s life, and to decide she is guilty only if they are confident that they will not be nagged by doubts about the correctness of their decision. (This standard contrasts with the modern American standard in civil cases, which merely asks jurors to make the best decision they can and then forget about it). Though it reached for a high degree of certainty, and was often depicted as reaching certainty, the standard of proof in early modern England incorporated probability in the analogizing that jurors did as they assessed credibility and plausibility.
The courtroom supplies a primary rhetorical image for the activity of knowledge- gathering. The plays discussed in this dissertation offer images of the judicial process complicated by perjured testimony and egregious misinterpretations of evidence, yet still always arriving at the correct and just verdict. The plays thus simultaneously assert and refute absolute skepticism and express some of the cultural attitudes and beliefs that would make constructive skepticism and objective probability possible later in the century.
124 Shapiro, Culture 31. 125 Shapiro, Culture 32.
Chapter Three
“It Being the Office of a Comic Poet to Imitate Justice:”1 Plot and Probability in Volpone
Broadly speaking, Quintilian’s injunction that orators must instill in their listeners an intensity of conviction that trumps more abstract issues regarding probability also applies to playwrights, who must convince their audiences to suspend disbelief and accept the plot as credible. To overcome an audience’s skepticism, the orator must, according to Cicero, make his narrative seem plausible by seeding it with details that usually appear in real life. By incorporating the necessary, the orator may achieve likeliness or verisimilitude, as Cicero did when he injected comments about the mundane (such as a husband’s patience in waiting for his wife to get ready to go out) in his model oration, Pro Milone.
While no one would accuse Ben Jonson’s plays of being wedded to “surface realism,”2in the trial scenes in Volpone he goes to some trouble to mimic actual court procedures, to evoke “a surrounding reality.”3He includes a “Notary” to certify that
witnesses have been sworn and depicts the Avocatori deciding which witnesses to believe via conventional tools actually used in real trials: considering the numbers of witnesses on each side; considering reputation; relying on assumptions and expectations about human
behavior—namely, that people do not act against their own self-interest. Jonson has a precise 1Ben Jonson, Epistle prefacing Volpone, Ed. Alvin B. Kernan (New Haven: Yale UP, 1962) 32. 2Alexander Leggatt, Ben Jonson: His Vision and His Art (New York: Methuen, 1981) 258-259. 3Leggatt 265.
interest in the workings of justice, as evidenced in the care he takes with the warrant and amnesty in Every Man In His Humour, the hue and cry and the consequences of its failure in A Tale of a Tub, and the trial scene in Volpone. But the mimicry of procedure is not Jonson’s object. Making the plot probable is his aim. And the incorporation of these patent practices in Volpone enables Jonson to achieve verisimilitude by exposing a latent feature of the English jury trial: the performativity involved in giving and receiving testimony which in turn illuminates some of the expectations that triers of fact (whether judge or jury) bring to their judgments.
The play shows two kinds of probability at work when the trier of fact receives and makes decisions about testimony: expectation and precedent. Both types, which are closely related, involve finding an equilibrium between the circumstances of an individual case and the commonplace. In the context of trials, expectation occurs before testimony begins; it is wrapped up in commonplace notions of what guilt and innocence look like, or should look like. Precedent is the flip side of the coin, occurring after testimony has been received, when the trier compares and contrasts the testimony with examples in mind from prior cases, experience, art, and history—every cultural practice and product by which the trier develops and maintains beliefs about human behavior. In receiving testimony-performances, the spectator-judge or spectator-juror makes decisions influenced by performativity’s relation to the epistemological link supposed to exist between testifying, truth-telling, and truth-
detecting.
In Volpone the judges employ expectation probability by which they compare the particular circumstances of this unique case—and each law case is unique—to their expectations about how guilty and innocent people act in court, how husbands treat wives
and fathers treat sons, how people act in their own self-interest. All these expectations hold true in most circumstances, most of the time, and recursively derive from precedent based on example from art and history, prior cases, popular culture, and surely the judges’ own
experience. In the absence of precedent, the judges are at a loss and can only resort to supernatural explanations for behavior they cannot interpret according to example.
The play complicates the presumption that there is any probable connection between truth and sworn testimony; between reputation and truthtelling; indeed, between testimony and truth at all, since all testimony is at heart a performance. Truth remains independent of law’s discourses and exists to be discovered, but the tools sanctioned by law may not get the job done. Thus, Jonson’s satire on greed also spoofs the anti-skeptical warrants that underlie law’s claim that jurors or judges can discern truth through the testimony-performances of accuser, accused, and witnesses. In mocking the tools which triers of fact use to gauge witness credibility, Volpone satirizes the expectations that jurors share about what guilt should look like and the “show” the accused should put on.
In this chapter I argue that Jonson exposes the hidden probabilistic reasoning at work when triers of fact evaluate witness credibility. Oathtaking and the communal judgment reflected in the witness’s reputation at best supply an inconsistent link to truth-telling and truth-detecting. Moreover, the judges’ expectations about what guilt looks like further invoke probabilities that are incongruent with the certainty of the judges’ (wrong) conclusions. Jonson’s treatment of the patent probabilities of oathtaking and reputation and the latent probabilities of performativity suggests some of the skepticism and distrust with which some members of the general public might have looked on the English jury system.