In a dramatic moment in her closing remarks in the Depp v. Heard defamation trial on 27 May 2022, Johnny Depp’s advocate Camille Vasquez offered an arresting evocation: ‘She [Amber Heard] came into this courtroom prepared to give the performance of her life. And she gave it. Miss Heard’s acting coach … testified that Miss Heard has difficulty crying when she is acting. You saw it. Miss Heard sobbing without tears.’Footnote ¹ This took me right back to the economy of bodily self-evidence and affect in the early modern English courtroom – the context I have engaged with most closely – and its mediation through drama, to the rhetoric of distinction between authenticity and performance that Renaissance plays both stage and trouble. It was a moment that reached back almost seamlessly to a context that opens into the prehistory of the legal focus on tears as an ultimate proof of essence against show, manifestation against mask. It also signalled the abiding embeddedness of ideas from classical forensic rhetoric in the popular evidential imaginary, not just in early modern England where rhetorical texts had been freshly revived and widely read, but all the way down to our own times. It vivified the way in which, as the editors write in Chapter 1, the digitisation of law in our times has brought the agon and the bodily performance of law back into view, in the public sphere, against what they see as the accretive masking of law’s theatre in the Western tradition. But that masking itself turns out to be less of a stable or continuous history if we know where to look for the dramaturgy of law, at what historical moments, and the epistemic and ontological stakes shared by judicial drama and the theatre of legal process. The emplotment of the affective body and its semiotics in the contemporary courtroom functioned as a window on how historically determined traditions reshape themselves at different junctures to animate something essential about the way we want the law to make our inward, inaccessible truths visible, whether ‘in camera’ or on camera, whether in a formal court of law or in human ‘scenes’ of adjudication or ascertainment.

But the moment sincerity is coded, it becomes performable. The freighting of signs with meaning comes with a risk. The authentication procedure undercuts authenticity. Lear, in Shakespeare’s The Tragedy of King Lear, asks incredulously at the moment of reunion with his daughter Cordelia: ‘Be your tears wet?’ He has seen too much hypocrisy – or indeed hypokrisis in the original classical forensic sense of judicial delivery – to believe that he has not only regained his long-lost child but also her forgiveness when he has only deserved judgement at her hands. ‘No cause, no cause’, Cordelia remonstrates – meaning that there is no cause for her to judge him for his wrongs or to deny him loveFootnote ² – while the audience hear a pun on legal cause or causa – and an echo of Othello’s ‘It is the cause, it is the cause my soul: […] It is the cause’, repeated with fervour three times (5.2.1–3) in Shakespeare’s Othello; or indeed Brabantio’s insistence in the same play that his allegation against Othello is ‘not an idle cause’ (1.2.95).Footnote ³ Lear’s question, however, does not just come out of a longing to ascertain that Cordelia is weeping, but, more specifically, to know that her tears are moist, and thus, genuine – intimating an awareness that even tears can be faked and performed as a persuasive device. Or perhaps that one can sob without tears. This induces a more radical sense of being adrift in a sea of semiotic incertitude.

Tears are, of course, a part and punctum of face and body, opening into the legal fixation with natural self-evidence – which focuses on a human need to bank on the irrepressible manifestation of the inward in the physical form. The textual hunger as well as frustration inscribed in legal performance is translated into literature’s depictions of the judicial imagination in moments of epistemic crisis. The narrator in Shakespeare’s Lucrece comments on Lucrece’s inability to read and thus judge the treacherous book that her rapist Tarquin’s face is – with ‘subtle shining secrets’ written in its ‘glassy margents’ (Lucrece, 99–102). Cicero’s Crassus says, ‘All delivery is an expression of the soul, and the face is the image of the soul, and the eyes are the pointers to it [Nam ut imago est animi voltus sic indices oculi].’Footnote ⁴ Quintilian, so familiar to the English Renaissance through the humanist curriculum, turns to tears as the most unmediated sign of feelings, when the face looks too much like a mask. Through early modern literature, not least drama, tears are the touchstone of authenticity, and their faking is cited as the worst kind of desecration: witness the distraught Imogen’s lament, in Shakespeare’s Cymbeline, at discovering Posthumus’ intemperate, murderous misjudgement which she compares to the false Sinon’s performance of grief: a blemish on the truest of men and on the sanctity of tears:

But ‘weeping’, as Cornelius informs him, was one of the ‘shows’ of the wicked queen to convince King Cymbeline of her love while plotting to poison him; a ‘craft’ to secure her unworthy son’s royal adoption (5.5.52–6). Not even tears, any more than face and body, are free from inference. In Lucrece, ‘those round, clear pearls of [Sinon’s] move [Priam’s] pity’: how could they not (1553)? And ‘So Priam’s trust false Sinon’s tears doth flatter/That he finds means to burn his Troy with water’ (1560–1). It is the perjured Sinon’s face – graced with ‘outward honesty, but yet defiled/With inward vice’ (1545–6) – that Lucrece rips apart in the tapestry of the siege of Troy, having identified so much with Hecuba’s sorrow as to fail to distinguish between its immediate instrument, Sinon, and the agent of her own destruction, Tarquin.

In a comic key, the performability of tears is foreshadowed in Shakespeare by the Lord’s instruction on acting to his page Bartholomew in The Taming of the Shrew, to keep an onion in a napkin to ‘enforce a watery eye’, ‘if the boy have not a woman’s gift/To rain a shower of commanded tears’ (1.1.120–4). But the theatre is acutely alive to the generic scope and range of this recognition of radical performability. It can provide inventive delight at what Ben Jonson calls ‘quick comedy’ in Volpone (Prologue, 30), such as the feigned decrepitude of his own ceaselessly performative Volpone, for feigning is inseparable here from protean acting.Footnote ⁵ Volpone plays so long and so unstoppably that he sabotages his own legal victory over his virtuous and woefully wronged accusers across two trial scenes in Act IV. But as the ‘fox’ (vulpes) is caught in his own snare and led in shackles to prison, Volpone the dramatic character – mimetic creature and master of ingenious plot reversals – breaks free of his confinement, steps out of the reductive tool of the beast-fable and re-emerges to speak the Epilogue. And in doing so, he destabilises the judgment of the law court at the end of a final act that need not even have existed, if only he had been content to stop playing after the favourable legal outcome of the previous act.Footnote ⁶ Effecting the final peripeteia, he at once constructs and appeals to an alternative jurisdiction, enlisting the verdict of the jury of the audience as delight exceeds and floods the judicial ‘cause’ internal to the dramatic plot in the wider courtroom of the theatre, driving a provocative wedge between legal and aesthetic judgment:

Julie Stone Peters admires the orator in the equally admirable early fourth-century invective Against Alcibiades (attributed unreliably to Andocides) for demanding the judicial expulsion of the Athenian statesman Alcibiades who, bolstered by sycophantic judges and aspirant Athenian youths, has abused the law in mistreating and throwing offstage the non-Athenian Taureas in the midst of a theatrical competition. The orator sides instead with the theatre audiences who cheer the wronged Taureas and condemn the tyrannical act of Alcibiades (LP, 51–2). The radical provocation of Volpone is to blur the distinction between legally culpable ‘deed’ and courtroom actio, and to challenge the ‘democratic power of applause’ that Peters identifies as a motor of righteous judgement from the example of pre-Platonic speech (52). The role of performance is less feel-good than we would like: the collaborative participation it elicits does not safeguard accountability but complicates it. The innocuousness of the ‘salt’ that the Prologue promises to rub the audience’s cheeks with, leaving them ‘red, with laughter’ (Prologue, 33–6), proves deceptive; unlike the ‘entertainment’ that Peters sees as ‘spectacular diversion’ inseparable from the law (LP, 21, 25, 4, 6), it proves unassimilably subversive. This is a play where comedy is the medium of the anarchic potential of the performative that nestles at the heart of legal training and procedure. Volpone wins the first trial through consummate role-playing – the charismatic impersonations and dissimulations that Peters shows to be the substance of ‘Legal Performance Education in Early Modern England’ (LP, chapter 6); but because that is what turns him on – he ‘[glories]/More in the cunning purchase of [his] wealth/Than in the glad possession’ (I.i.30–2) – it overflows the institutional ends of legal performance, shaping an unsettling chiasmus between conscience and craft, punishment and pleasure, justice and jouissance.

But the opposite affective markers of laughter and tears are equally productive – though distinct in their probative purchase – for a medium that finds in law not so much a model for judgment as a ground-plot for the relation between reality and representation, subjectivity and semiotics. For the theatre also knows how not only hypokrisis itself, but an awareness of it, can tragically undo us as it does Shakespeare’s over-integrated Othello when it faces us with the essential unknowability of the other as well as the impossibility of representing oneself to the world. For, as early modern drama, not least Shakespeare, repeatedly shows us, law shapes the imagination at moments of crisis because we feel that it meets a human need for justice and knowledge, vindication and certainty. But does it? And if not, what work does it do? And what do its failures speak to? This chapter shows how dramatists, at once inheritors of the rhetorical tradition – at the very least through the humanist curriculum of grammar schools, and familiar with the law – whether through Inns-of-Court education, or their own brushes with the legal system, mine law as an imaginative resource, both in its discernment and its obscurities, its hermeneutic success and its cognitive limits, its evocations and its obfuscations, its rigours and its risks. Un-anxious to find resolution or arrive at verdict, plays can, instead, probe the uses of the ludic content in law as well as use the ludic as their own method to question and complicate the veridical assumptions of judicial process. My use of a contemporary legal moment as an entry point into early modern drama’s mining of the complexities of hypokrisis at once draws on Peters’ excavation of theatrocracy and offers a provocation against her assumption of a fundamental difference between the fiction of the theatre and the truth and reality of the law court. When Lear, faced with the flagrant lack of justice in his world and its institutions, stages his own mock trial on the bare heath in the 1608 Quarto of Shakespeare’s King Lear, is the play merely presenting a fib, or is it tuning in to the fiction, construction and the affective realties underpinning ‘real’ trials?

As Lear choreographs his meagre company into a law court to try Goneril and Regan, the daughters who have kicked him out of doors and blinded his loyal retainer, Gloucester, the fantastic nature of the trial lays bare the performative insides of the legal machine, its fictive ontology: the ways in which any place could be shaped into a trial by the structure of the action, the ecology of relations, the blocking of characters in space and the psychic impulses and epistemic fantasy that call for ‘trial’ in human affairs, or for a mock trial in a Godless world where one must anatomise hearts on a heath because no court, human or divine, will do it. The theatre can mine this dimension of the ontology of law the more freely because it does not share institutional law’s investment in factual truth or its veridical telos. Remember Adorno: ‘Art is magic delivered from the lie of having to be truth.’Footnote ⁷ What might be the yield of replacing a hierarchy between ‘what real people did in real legal arenas’ and the ‘fiction’ of ‘literary texts’ that needs to be sifted from ‘fact’ (LP, 22) with a horizontal placement of legal and theatrical engagements in counterpoint with the role of the performative imagination in expressing, accessing and shaping truth?Footnote ⁸ Their dynamic tells us more about legal performance than either discipline can in isolation: it reveals it to be both an extractive agent of moral understanding and a tool of persuasive artifice, with all the representational and moral implications of that duality.

If Vasquez and her historical predecessors in Elizabethan or Jacobean London or the Athenian or Roman law court are unerring at unmasking the supposed performance of defendants and accusers, the plays that stage the composite drama of the legal scene are canny at piercing the performativity of advocacy itself. Peters uncovers the legal terrain in granular detail through the sixteenth-century French lawyer Etienne Pasquier’s masterly translation of the rhetorical precepts of advocacy (LP, 244–50). Pasquier is shown to recast the tears of Bobie – his client Jean d’Arconville’s opponent – as a manipulative mask, and Arconville’s own dry eyes as a sign of masculine, stoic integrity, while also, at the same time, emplotting Arconville’s wife’s tears as an unmediated sign of distress and a trigger for judicial pathos. It is as if the self-reflexive impersonations written into legal practice (not to speak of the mise-en-abyme of legal training so brilliantly reconstructed by Peters) unmoor the very touchstones of sincerity. Is Cicero weeping the tears that his client Milo cannot – a suggestive moment for Peters (LP, 19) – an example of a lawyer manipulating emotion by performing its coded proof? After all, Cicero emplots Milo’s tearlessness as manly stoicism, much as Pasquier emplots Arconville’s. Or is this rather an instance of what Quintilian presents as suasorial empathy, becoming one with the subject he speaks for, embracing mimesis as an act that stirs the self itself:

Curiously, the idea of temporary identification is similar to the passionate plain style of affective preaching that seventeenth-century Protestant preachers such as William Perkins advocated – the paradox of the preacher being a mere vehicle for the Holy Spirit but needing to be transformed by it in order to be an effective medium and move his congregation.Footnote ⁹ Quintilian’s reassuring distinction between an orator and an actor is as unsustainable in the courtroom practice of arousing emotion as the paradoxical precepts of English Reformed preaching style, whose demand of dispassionate passion is complicated by its own tripartite interpersonal economy between ‘1. God, 2. the Preacher, and the Hearer’.Footnote ¹⁰ One remembers Herbert too, a priest and poet who feels a wrench every time he renounces artifice in his poetry, but who makes a firm distinction between holiness and eloquence in characterising sermons.Footnote ¹¹ The inter-discursive location of the fractured facts of legal performance is nowhere so clear as in the syncretic fictions of imaginative literature. But that is another chapter of the story.

Early modern plays reflect on both sides of the equation. They are sharply aware of how lawyers can play to – and indeed play – the affective needs of the audience. But they also understand what performance and being, artifice and nature, can do for each other, and how sometimes one slides into the other in a juridical context. In the mock trial of Q Lear – the theatre staging the theatricality of law – legal roles shift and coalesce like aspects of the judicial impulse. As Lear slides from judge to accuser to plaintiff, Edgar says in an aside: ‘My tears begin to take his part so much/They mar my counterfeiting’ (Q55/F18–19). In an extraordinary semantic glide, Edgar’s tears are at once the irrepressible sign of authenticity piercing his theatrical ‘part’ as ‘poor Tom’, and Lear’s advocate, defending him through affective representation, in a trial where Lear has none to take his ‘part’. After all, Quintilian argued that the parts of a forensic speech – or partitio – was a vital part of an individual question and an aspect of proof.Footnote ¹² The transference of emotion that Peters locates in Quintilian’s idea of effective legal representation haunts the moment: the sense that legal role-play is an extractive form of art, not just histrionics is almost inextricable from genuine empathy as a disruptor of performance. Tears in this play are nothing if not fluid.

The stakes of self-representation in court are of course different from those of advocacy – or people speaking for others, staging others’ bodies for ethos and pathos. In a necessarily indicative rather than exhaustive discussion, I will glance at a selection of early modern texts, either dramatic or folding drama into the narrative, to show how literature gets into the ethical and affective crevices of the forms of representation that law demands as well as makes available. I also intuit and suggest that literature uses the structure of interpersonal encounter to address these implications. Lucrece laments her rape copiously for some 2,000 lines, but when it comes to writing to her husband, Collatinus, about it, she ends up tearing all her drafts and writing a one-liner, choosing instead to ‘hoard’ ‘the life and feeling of her passion’ (1317)

She has mentally constructed the scene of disclosure as a trial where she has to clear herself from the world’s ‘suspicion’ by choosing the theatrical over the textual, relying on embodied presence. Her resolve taps into the intersection of a physiognomic idea with a legal one. A fragment from De Pace Regis et Regni (1609) by Ferdinand Pulton of Lincoln’s Inn throws light on the thinking behind this: in a criminal trial, ‘the defendant must answer [the indictment] in proper person, and not by Atturney’ – because then ‘his countenance, or gesture will shew some tokens therof, or by his simple speeches somewhat may be drawne from him to bolt out the veritie of the cause’.Footnote ¹³ Raleigh famously was denied benefit of counsel in his treason trial. Yet when he demanded to meet the witness against him ‘face to face’, the crown prosecutors denied his request – a landmark in the historical development of the right of confrontation in criminal cases which became the norm in English common law courts by the later seventeenth century. The model of encounter as a sifter of truth was a gift of the law, yet its place in the ecology of law itself was uneasy to start with.

In Arden of Faversham (1592), an obviously judicial play, two men travel together with ‘a pretty tale’ told by Franklin to Arden to ‘[beguile] the weary way’.Footnote ¹⁴ It is an account of the trial of a woman taken in adultery, now repentant, being interrogated by her husband – whether in a formal or domestic court. ‘I wonder how she looked,’ Arden interjects. Franklin replies:

The gendered fantasy of the expressive body becomes here a prettifying aesthetic code for authentic demonstration. The mise-en-abyme of this moment encases encounter within response. The woman is speaking for herself, but Franklin is offering a commentary. That interface marks a space where access is lost even as it is scripted in reception. By contrast, the trial of the guilty but compelling Vittoria Corombona in Webster’s The White Devil stages an attempt at scripting so that the audience witness both the defendant’s self-representation and the prosecutor Monticelso’s attempt at reading and reducing her. Peters dwells on how the classical tradition placed attention to ‘character’ at the heart of oratorical prosopopoeia (78). In their courtroom collision, M vents his frustration with her wayward body which, in its very fairness, fashions a false semiotic, and calls her a whore. She retorts, ‘Whore? Ha – what’s that?’ Here’s Monticelso’s reply.

And he proceeds to present a twenty-four-line exercise in the aphoristic Inns-of-Court genre of character-writing which sketched deeds to make intent quickly legible. It falls flat against Vittoria’s protean performance and her shrewd counter-images. Quick to recognise Monticelso’s formal strategy, Vittoria retaliates: ‘This character ’scapes me’ (l. 101). Webster himself had written thirty-two character sketches. But here, he flamboyantly sets apart the deep play of dramatic characterisation from the naïve fantasy of indexical demonstration. Associating the latter with both physiognomy and providentialism, he shows how law co-opts both through the factually correct but representationally naïve lawyer Monticelso whose attempt to demonstrate Vittoria’s corruption falls on its face in this densely rhetorical play. ‘I will but touch her and/Straight you will see she will fall too soot and ashes,’ he says (ll. 66–7), almost quoting from his own ‘character’ of the ‘Ordinary Widow’ – but she does not.Footnote ¹⁶ The theatrical conditions – the boy in a frock impersonating the complex woman flaunting her femininity on the dock – only align the playhouse ‘auditory’ (whom she co-opts as the common man’s jury) with the superior aesthetics of her action (l. 15). Ironically, while striking at legal procedure, she is a creature formed out of the ethically insouciant logic and craft of impersonation in moots: thus almost embodying the ancient and paradoxical combination of affinity and rivalry between law and drama that Peter Goodrich has unearthed.Footnote ¹⁷ The white devil of the play ‘characterises’ the inscrutable face, and the illegible defendant haunting the legal imagination, but she also signals that aspect of the play-texts which is defiantly pensive, like Roland Barthes’s classic text, holding back ‘some ultimate meaning … whose place it keeps free and signifying’ (S/Z).Footnote ¹⁸ An example of how law’s subjects turn subjection around into irreducible subjecthood, ‘acutest at its vanishing’.Footnote ¹⁹

A similar inwardness is forged in a 1590s play with an almost opposite evidentiary semiotic – the anonymous A Warning for Fair Women which, like Arden, was based on a real-life adultery and murder story. The guilty wife, Mistress Sanders, comes into court with a white rose ‘in token of her spotless innocence’, but the rose changes colour (presumably as she turns and squeezes a sheep’s heart or some such). Her attempt to fashion her own semiotic is hijacked by the theatre of God’s judgement in this providentialist play, where insides are already always visible because God is the ultimate spectator as well as dramaturge. But when she is in prison and actively repentant, the generic shift to pathos, almost tragedy, is an effect of the very rhetoricity built into theatrical presence:

The lack of devices to make the inward visible becomes a mimetic index of the invisible theatre of the heart. Law becomes a seam at which tears, faces, bodies, selves and texts are shown to play and play out their games of knowledges, intimating a live, intractable, inexpressible core.

In a secular context, this takes a slightly different form – one that can be peculiarly poignant in cultural encounters. Once the performability of sincerity is understood, can genuineness make itself legible? Consider Othello the ‘hypocrite’. Summoned to answer Brabantio’s ‘cause’ (1.2.95) ‘in [his] own part’ (1.3.74), alleging Othello’s use of witchcraft to seduce Desdemona, he begins by protesting his lack of eloquence – ‘Rude am I in speech’ – only to proceed to a vivid re-enactment of his persuasion of her through recountings of the ‘moving accidents’ that brought him from Africa to Venice, slavery to military decoration. ‘This only is the witchcraft I have used,’ he rests his case. So magnificent is his oratory that the critical reception has been cynical of his ‘round unvarnished tale’ – the ‘credibility problem’ Peters refers to when one is too good an orator. The Duke responds, ‘This tale would win my daughter too’ (1.3.170). Is this conviction to be uttered admiringly, ruefully or cynically? ‘Tale’ evokes a story that might be invented and incredible. Yet perhaps Othello’s ‘story’ is also his ‘history’ (words he uses interchangeably, as did the period); when Desdemona responds to its ‘[strangeness]’, perhaps she registers the source of its force in a radically other, unified and simpler world, though liable to be swiftly reconstructed in hyper-civic Venice where performance is sharply distinct from being. Where the semblance of racial tolerance proves a dissemblance, the black but un-obscure Othello becomes judicially opaque, and over-read. The poetics of hypokrisis that Peters says Plato left incomplete is drawn out by playwrights in this legally obsessed culture into a poetics – and a politics – of relation. The theatre also challenges legal theory’s tendency to essentialise ‘performance’, and Peters’ implicit corroboration of it: ‘“performance” … may diagnose a universal ontological condition: the fact that what appears as natural is in fact produced and reproduced through performance on the stage of life’ (LP, 18). But the stages of life are plural, and the hermeneutics of performance as well as reception are culturally specific, often inflected not only by gender but also race, class or place.

But does prosopopoeia – as opposed to self-presentation – guarantee the ethics of emotion in the law court, as Peters suggests? If we take on trust Quintilian’s idea that when we speak for another we take on their pain, perhaps so. But if we look at what Renaissance plays do with Plato’s worry about theatrocracy’s ‘contamination’ of justice with pleasure and pain, how they disaggregate and counterpoint the two, and locate pleasure at the heart of law’s own performativity, we will see how an affective challenge of the ethics of representation is enabled by the twinning of law and performance. In Shakespeare’s Titus Andronicus, the immediate aftermath of an offstage crime is mediated to us by Marcus, who runs into his niece, the raped and mutilated Lavinia, arrests her mid-flight, and turns her into a still image as he makes her turn to face him and describes her in a vivid forty-seven-line testimonial address (2.4.11–57). ‘Shall I speak for thee? Shall I say ’tis so?’ he asks (l. 33), and then we see prosopopoeia going horribly wrong as it is infected by the pleasure of rhetorical ornamentation and the temptation of poetic decorum. The rhetorical coupling of enargeia as poetic resource and as forensic tool is ruptured as ravishing description converts the ravished Lavinia into a series of elegant tropes as we face her onstage, bleeding. Framing the scene as a chance meeting – one that inscribes Lavinia’s mute recoils – courts a deeper indecorum, to question the ethics of response and representation. The elocutionary asymmetry grants semiotic power to Lavinia and evokes the dialogue that can never happen. And finally, ekphrasis sharpens the judicial stakes of shaping enargeia into encounter. Lavinia’s onstage presence in the face of Marcus’ ekphrastic vividness brings the audience face to face with a perversely redundant mediation. Quintilian talks of (good) enargeia as a function that conjures up presence in absence. But Marcus’ enargeia, while we look at Lavinia, collapses presence into hideous absence – after its conversions of art, language perversely bodies forth the non-existent:

Not all instances of enargeia in Shakespeare make the objects of representation, or their scenes ‘present’. In Erasmus’ mimetic hierarchy, the richest kind of enargeic descriptions are messenger speeches in tragedies, ‘because they are presented instead of the spectacle and … report the things … impossible or inappropriate to present on the stage’.Footnote ²¹ Think of death by drowning – like sex and murder, impossible to stage. Gertrude, in Hamlet, is witness and messenger of Ophelia’s suicide. But listen to her enargeia:

In Aristotelian rhetoric, enargeia is the tool for both poet and orator to reimagine and then present absent things with ‘the vividness of an eye-witness’.Footnote ²² The later, Latin rhetorical tradition, immediately proximate to the English Renaissance, translates enargeia as evidentia.Footnote ²³ What kind of evidence does Gertrude’s aestheticising speech provide of Ophelia’s motive, agency or physical reality as she drowned? The phonetic gap between melodious and muddy is entirely elided in the poetic images – eikons? – it spawned, from the pre-Raphaelite necrophilia of John Everett Millais’ iconic painting Ophelia, to Hitchcock’s cinematic adoption in the scene in Vertigo where Kim Novak’s Madeleine drowns ‘mermaid-like’ with ‘her clothes spread wide’ in a pool of water strewn with flowers from her bouquet. But that gap is also the space of what Erasmus calls the ‘exercise or display of genius’ – when the whole evidentiary business ‘looks to pleasure’.Footnote ²⁴ Erasmus distinguishes between two kinds of objects of vivification that, together, contribute to enargeic copia: ‘living things’ and ‘woven things’.Footnote ²⁵ Gertrude’s account knits the living thing (which, here, is also the dying thing) into a woven thing with a liveliness that complicates both ethical insouciance and aesthetic enjoyment.

Different in specifics but comparable in kind is the displacement of erotic frisson into narrative jouissance in Iachimo’s evidential narratives in Shakespeare’s Cymbeline. Though Iachimo is not speaking for anyone but himself, his judicial reports take me back to the layering of performativity in the contemporary trial I started with, one that early modern culture was dense with, not just in the theatre of the courtroom, as Peters brilliantly unpacks, but in the courtroom of the theatre. Vasquez’s vivid conjuration and framing of a moment already watched by the court audience could have come straight out of Cymbeline, where the original scene of criminal action – Imogen’s bedroom – is first staged; then vividly reported in another space and time by the villain Iachimo as he tries to persuade her husband Posthumus of her supposed infidelity through false proofs consisting of a heady mix of material tokens and enargeic narrative; and then reported again in the final trial scene in Iachimo’s supposed confession speech which becomes a self-delighting bravura performance. The compositional aspect of rhetoric and the performance of law that Lorna Hutson distinguishes in Chapter 2 in this volume come together in Iachimo’s repeated efforts at persuasion. Ontologically, they are a variation on the crafted whimsy of Vittoria’s report of her ‘foolish, idle dream’ (White Devil, 1.2.232) to her lover Bracciano, insinuating her wish that he should get rid of her husband and his wife, which Bracciano rightly interprets as the first stage of a mutual composition, swearing to give her thoughts ‘the invention of delight/And the fruition’ (265–6). But the dramatic context of purported confession and revelation in the finale of Cymbeline embeds the rhetorical in the performative. As Iachimo launches into his evidential aria, ‘Once upon a time, unhappy was the clock … ’ (5.5.153), the dilations and delays of his narrative, his melodramatic ‘faint’, his leisurely, relishing embellishments, his self-congratulatory asides – ‘O cunning, how I got it!’ (205) – elicit anguished impatience from this onstage audience; witness Cymbeline’s outburst: ‘I stand on fire./Come to the matter’ (168–9). Rhetorical temptation overtakes legal necessity, as in Volpone. And like Volpone, Iachimo is not interested in the supposed legal purpose – or ‘profit’ – of this confession: disclosure, testimony and repentance. He is absorbed, instead, by the pleasure of his bravura performance, his Italianate aria evoking his earlier ingenuity of deception. Like his false, testimonial narrative to Posthumus, but unlike the fictional world of Volpone, the focus here is on affect and ethics, as narrative retardation sharpens anticipation and causes avoidable pain, in a context of interpersonal ecology. The painful and the comic, the poignant and the perverse, jostle in this tragicomic disclosure to uncover the generic components that make up the insides of the legal machine, which need the extractive work of the theatre to be realised in their fully affective dimensions.

But Gertrude’s speech, or Marcus’, can be played to draw on the affective scope of absence; their strange, dislocated pathos can be made to speak out of a longing that reaches across the gap between res and its representation. Interestingly, the context in which Erasmus conceives of enargeia as a vehicle of longing is a meditation on real presence – and indeed on mediation – in Convivium Religiosum (The Godly Feast) (1522). This is a dialogue structured around Eusebius’ guided tour of his house for his guests. His commentary preserves the opacity and enigma of certain forms in the garden, whether natural, artificial or textual: these becomes the loci of plenitude, precisely because they generate epistemic desire. Erasmus’ reflection on the deceptiveness of appearance, and on the elusiveness of the reality beyond it, is immediately followed by this comment: ‘the very appearance of the place invites one to pray’.Footnote ²⁶ The proto-Pauline figure of the transenna or lattice-window – ‘veluti per transennam vidisse’ – stands in at once for seeing through a glass, dimly, and the pursuit of seeing and knowing face to face.Footnote ²⁷ This throws light in turn on the slippage between energeia – the Aristotelian sense of motion, and enargeia – the evidential idea, in De Copia. Could we see the intrinsic elusiveness of Vittoria’s ‘character’ as theatre’s way of translating into a secular idiom the untranslatable copia of the self’s presence in the face of exegesis?

I end, then, with these intimations of how law’s disknowledge becomes the poetic condition for theatrical knowledge – an ironic variance that maps on to the chiasmus shaping the relation between Aristotle’s preference of probable proof and the English law courts’ privileging of direct and inartificial proofs for creating conviction.Footnote ²⁸ The vivid invisibilities in the performance of evidentiary practice, and the knowingness of drama’s deep play with the affordances and limits of energeia, underline the slippage between the two in legal thinking and action that allows playwrights to push as well as test the limits of empathy, and, paradoxically, forges personhood precisely as its invisibility is inscribed. Theatrical performance acknowledges and looks beyond the invisible object of representation – the truths of intention and emotion – at how their very elusiveness intensified the need for these signs, the desperation to map what is visible on to what is not, to make presence figure absence. The epistemic yearning structuring judicial encounters, the proficiency of legal representation at playing to it, the semiotic remit of subject-positions, and the pain and pleasure of the scaenius of law need the scaenius of the theatre to be fully explored: for the theatre is at home in hypokrisis.