Cultures of Witnessing: Law and the York Plays

By Emma Lipton

Like other compilations of medieval urban drama, the plays that were performed in the streets of York on the Feast of Corpus Christi from the late fourteenth century until the third quarter of the sixteenth have most frequently been discussed in the context of the devotional cultures and practices of the later Middle Ages. The pageants' preoccupation with law, and with witnessing in particular, has received much less attention, Emma Lipton observes, yet the cycle of forty-seven plays, which together tell the story of human history from the Creation through the Last Judgment, contains an extended sequence that stages the trials of Christ leading up to the Crucifixion, and legal discourse features prominently elsewhere as well. While the play collections associated with other cities also engage with legal concepts, the York Plays devote an unusual amount of attention to the law, Lipton contends. It is no coincidence that the plays themselves are preserved alongside a wide range of legal records in the York Memorandum Books, repositories of civic documents that were kept in the city's guildhall.

Engaging both theater and legal studies, Lipton is concerned in particular with the interfaces in the York Plays between dramatic practice and legal concepts of witnessing. In medieval English courts, witnesses were defined as neighbors; they spoke both to what they had seen and heard and also to common knowledge of events. At the same time, many legal theorists were concerned by how the temporal gap between initial experience and testimony might reshape the record of the past in light of the motives and emotions of individual witnesses and allied groups. With chapters focusing on space, speech, affect, and temporality, Cultures of Witnessing considers how civic performance and the legal theory and practice of witnessing promoted a shared sense of urban citizenship, and how this in turn provides a way to theorize late medieval religious drama, whose players performed on the streets and neighborhoods in which they conducted their daily lives.

• Language: English
• Publisher: University of Pennsylvania Press
• Release date: May 10, 2022
• ISBN: 9780812298468

Emma Lipton

Emma Lipton is assistant professor of English at the University of Missouri, Columbia.

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Cover Page for Cultures of Witnessing

Cultures of Witnessing

The Middle Ages Series

Ruth Mazo Karras, Series Editor

Edward Peters, Founding Editor

A complete list of books in the series is available from the publisher.

Cultures of Witnessing

Law and the York Plays

Emma Lipton

UNIVERSITY OF PENNSYLVANIA PRESS

PHILADELPHIA

Copyright © 2022 University of Pennsylvania Press

All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher.

Published by

University of Pennsylvania Press

Philadelphia, Pennsylvania 19104-4112

www.upenn.edu/pennpress

Printed in the United States of America on acid-free paper

10 9 8 7 6 5 4 3 2 1

Hardcover ISBN 978-0-8122-5385-6

EBook ISBN 978-0-8122-9846-8

Library of Congress Cataloging-in-Publication Data

Names: Lipton, Emma, author.

Title: Cultures of witnessing : law and the York plays / Emma Lipton.

Other titles: Middle Ages series.

Description: 1st edition. | Philadelphia : University of Pennsylvania Press, [2022] | Series: The Middle Ages series | Includes bibliographical references and index.

Identifiers: LCCN 2021042879 | ISBN 978-0-8122-5385-6 (hardcover)

Subjects: LCSH: York plays. | Mysteries and miracle-plays, English—England—York. | Theater—England—York—History—Medieval, 500–1500. | City and town life—England—York—History—To 1500. | Witnesses in literature. | Law in literature. | Witnesses—England—History—To 1500. | Law—England—History—To 1500. | Law and literature—England—History—To 1500. | English drama—To 1500—History and criticism.

Classification: LCC PR644.Y6 L57 2022 | DDC 822/.051609—dc23

LC record available at https://lccn.loc.gov/2021042879

For John Evelev

Contents

Introduction

Chapter 1. Space and the Cultures of Witnessing in the York Entry into Jerusalem

Chapter 2. Witnessing as Speech

Chapter 3. Witnessing and Legal Affect in the York Trial Plays

Chapter 4. Witnessing and Asynchronous Temporality

Notes

Bibliography

Index

Acknowledgments

Introduction

Christine Blasey Ford’s televised testimony on September 27, 2018, to her decades-old sexual assault by Brett Kavanaugh, at the hearings for his nomination to the Supreme Court, and the many public responses to it, highlighted the theatrical nature of witnessing. Her speech was understood as an embodied and affective performance that brought the past back to the present moment and private experience into a public forum. Her testimony reminded us that acts of public witnessing—even to the most personal experiences—can make history, shape politics, and potentially lead to social change, despite a persistent association of the legal system with hegemony. Commenting on her testimony, Blasey Ford later said she was simply doing my duty as a citizen . . . I thought anyone in my position would do the same thing.¹ Here, she characterizes witnessing as a practice of citizenship and identifies it as simultaneously legal, political, and theatrical.

This book argues that the York Plays, performed annually on the streets of York from around 1376 until the late 1500s, also called attention to the theatrical nature of witnessing and to the ways that medieval theater was shaped by that legal practice.² In medieval English courts, unlike modern American ones, individual witnesses spoke both to their personal acts of perception and to common knowledge of events. Witnesses and jurors were defined as neighbors, constructing their role in terms of local community. As in some people’s response to Blasey Ford’s testimony, medieval writers were concerned about the temporal gap between initial experience and subsequent testimony, and about how the process of memory might reshape the record of the past in light of the present concerns, motives, and emotions of individual witnesses and allied groups. This book argues that legal concepts of witnessing promoted urban citizenship and provide a way to theorize the dramatic practices of the late medieval religious drama in York.

The York Plays, like other compilations of medieval urban drama, have most frequently been discussed in the context of devotional culture and practice, but the pageants’ preoccupation with law, and with witnessing specifically, has received little attention.³ The plays contain an extended sequence of five pageants leading up to the Crucifixion, staging the trials of Christ; they also use the legal discourse of witnessing extensively in the Entry into Jerusalem and the Last Judgment. Although the play collections associated with other cities also engage with legal concepts, I have chosen the York Plays because they devote an unusual amount of attention to the law and to witnessing.⁴

Evidence for the relevance of legal concepts of witnessing to the York Plays can also be found in the York Memorandum Books, repositories of bound civic documents kept in York’s guildhall, which contain both dramatic and legal records.⁵ At least since the publication of the York volume by the Records of Early English Drama (REED) in 1979, study of the civic records has been central to a wide range of arguments for medieval drama’s engagement with urban culture. The York Memorandum Books and other civic records have frequently been enlisted in discussions of the relationship of the York Plays to the guilds that staged and sponsored individual pageants, to civic government and labor politics, and to drama’s engagement with rituals such as the civic processions on the feast of Corpus Christi, but the implications of the preponderance of legal records in the York Memorandum Books have been largely overlooked.⁶ In addition to ordinances of the city’s craft guilds and government, these volumes included legal records, trade legislation, and records from the Sheriff’s and Admiralty courts. The York Memorandum Books testify to the ways in which both dramatic and legal records promoted York’s civic authority rather than the centralized authority of the realm. In contrast to modern notions of citizenship tied to the nation, the idea of the citizen was expressed primarily, if not exclusively, in urban documents, in the late Middle Ages. A June 7, 1417, ordinance from the York Memorandum Book, for example, states that "all the pageants of the play called Corpus Christi should be maintained and brought forth in their order by the crafts of the said city for the benefit of the citizens of the same city . . . and for the profit of the said citizens" (my emphasis).⁷ This ordinance directly ties the plays to an ideal of citizenship located in the city. The concept of citizenship expressed in the York civic records differs from civic humanism and from recent scholarly views of the medieval city as defined by community, oligarchy, or populism.⁸ The York Memorandum Books also contain the charters that gave the city jurisdiction over the courts within its boundaries and made the testimony of neighbors a local expression of citizenship. The definition of the witness as neighbor provides a new way to consider the space of the medieval city, and gives an alternative to both the classicizing tradition of citizenship found in the Italian republicanism often featured by historians and to the corporate eucharistic imagery that has long been at the center of scholarly theorizations of drama’s relationship to the city.⁹

The depiction of legal witnessing as a practice of citizenship in the York Plays can be understood historically as an expression of the relative power of that great northern city in late medieval England, but it also reflects a broader preoccupation with witnessing in the period. The discrediting of the ordeal by the Fourth Lateran Council, better known in recent medieval scholarship for its requirement of annual confession, helped to produce a major shift in legal practice and theory toward the courtroom trial.¹⁰ Social and legal historians, such as Shannon McSheffrey and Majorie MacIntosh, have noted the participation of an increasingly broad section of society in both the ecclesiastical and common law courts of the late Middle Ages, ensuring that legal concepts of witnessing were not esoteric professional doctrine but diffused throughout society.¹¹ A variety of medieval texts show a widespread preoccupation with the subject of witnessing in the period that extended outside the courtroom and beyond legal documents and practice. In addition to dramatic texts, witnessing was featured in conduct books, confessional manuals, sermons, hagiography, and elsewhere.¹²

In these texts, witnessing was linked broadly to legal concepts, rather than to specific court practices, and is often mentioned briefly in discussions of the regulation of speech and emotions, and of proper behavior toward one’s neighbor. For example, The Book of Vices and Virtues cites the eighth commandment þou schalt seye no fals wittenesse aȝens þi neiȝebour, specifying that this applies in broad terms in iugement ne out of iugement, neither in nor out of a strictly legal context, warning that it can lead to the harme of good men, and then proceeding to warn against flattery and other problematic speech.¹³ A sermon on the same commandment also cautions against harming others and warns that a false witness incurs the danger of temporal and eternal punishment, referring broadly to the earthly courts as well as to the court of the Last Jugdment.¹⁴ A passage from Dan Michel’s Ayenbite of Inwit or the Remorse of Conscience warns against false witnesses in cristene cort or leawede cort, making a distinction rare in these texts between common law and canon law courts, but this discussion remains broadly construed: false witnessing is only one of many examples of false claims in a broader discussion of the sin of avarice.¹⁵ False witnessing surfaces again very briefly later in the same text, as one of many examples of lying in a larger consideration of sins of the tongue.¹⁶ Similarly, concerns about false witnessing and false oaths were folded into broader conversations about the need to regulate speech in conduct books and in poems that addressed behavior and manners. For example, The Young Children’s Book exhorts its readers to make no promys bot it be gode, going on to admonish God & þi neybores lufe all wey . . . so þou kepys All þe lawe.¹⁷ The narrator asserts that speaking truthfully will keep both earthly and heavenly laws, and that it is also neighborly, perhaps reflecting the association of neighbors with legal testimony. This passage resembles confessional texts in its presentation of false witnessing as a failure of the Christian imperative to love your neighbor. Conduct books and confessional handbooks showed that legal witnessing was seen to influence and be influenced by larger concerns about speech, emotions, and neighborliness. The fact that discussions of witnessing occurred frequently in texts that are not primarily legal is itself evidence of a wide-ranging interest in the topic in the period. The meanings of the term witness in the York Plays are informed as much by the popular reputation of witnessing expressed in confessional manuals, sermons, and conduct books as they are by specific legal texts and procedures. Like these texts, the York Plays often depict legal witnessing without clearly identifying canon or common law, borough or royal courts, or making other careful legal distinctions of interest to professional lawyers. For example, the plays often use the term witness in pageants featuring both canon lawyers and secular rulers but do not refer directly to the jury system of the common law courts. Instead, the plays synthesize and reformulate legal terms and concepts, reimagining them in the service of promoting civic values.

The meanings of witnessing in the York Plays are also shaped by the performative practices and forms of the plays themselves, which were staged in a series of pageants at stations along the streets of medieval York. At times, the plays directly signal the role of literary forms in constructing the meaning of witnessing. For example, the inset lyrics in York’s Crucifixio Christi and Doomsday pageants draw on lyric paradigms of affective practice and use the contrast between lyric and dramatic forms to implicitly comment on their own performative practices. Although several scholars have identified particular legal procedures they believe are referenced in individual York Plays, my book focuses instead on the reciprocal construction of law and literature, making a more theoretical argument for an imaginative interaction between concepts of legal witnessing and theatricality in the York Plays.¹⁸ The York Plays engage not only with literary and legal traditions but also with the discussions of witnessing in a range of contemporary texts—including conduct books, confessional texts, sermons—that collectively point to the existence of what I call the cultures of witnessing in the period.

My argument that the York Plays use legal concepts of witnessing to promote civic values also differs from scholars who claim that the depiction of the law in late medieval religious drama reflects the logic of sermons and confessional manuals by showing the corruption of the earthly courts. Indeed, contemporary sermons and religious writings often comment on the corruption of lawyers and use biblical stories, such as the trials of Christ, to criticize contemporary trial practices as unjust and corrupt.¹⁹ For example, a sermon by Bishop Brunton of Rochester compares contemporary English law to that of the Jews who condemned Christ: The Justice of the English [is] as it was with the Justice of the Jews at the time of Christ’s Passion. For just as Christ has manifold testimony of his own justice from his opponents, namely from Pilate, Pilate’s wife, Judas the Betrayer, the thief and the centurion, yet contrary to all justice was betrayed to death, and Barabbas, the famous thief and murderer, was freed from death which he deserved.²⁰ Establishing a broad contrast between the failures of earthly law and the higher truths of divine justice, this passage claims that late medieval law’s dependence on witnessing led to injustice. As is common in confessional texts, Jacob’s Well levels its ire against legal professionals, including dishonest solicitors, secretaries, and judges, as well as against false witnesses, defendants, and jurors.²¹ The penultimate chapter of G. R. Owst’s classic, but still influential, study of sermons includes a chapter on medieval religious drama that depicts it as out of the pulpit satires of preachers.²² More recently, medieval drama critics have taken a similar view, arguing that the plays illustrate the corruption of earthly law in comparison with divine justice.²³ The York Plays, too, acknowledge the corruption of the legal professionals who condemned Christ, and, like contemporary vernacular religious writing, they present biblical history, and the Passion story in particular, as relevant to legal practices in their own present moment. They also, however, depict God, Christ, and other figures as virtuous witnesses, using them and other legalisms to promote local civic values and authority. The actions of Christ and other virtuous witnesses are often contrasted in the plays with the bad behavior of the canon lawyers, Annas and Caiaphas. From this perspective, the bad reputation of law and lawyers in vernacular religious texts and sermons might be seen to evince competition between the institutions of church and law in the regulation of moral behavior and in the practice of citizenship. A similar contrast is drawn between virtuous witnesses allied with civic authority and the secular rulers, Pilate and Herod in the plays. Ultimately, the York Plays portray legal testimony and dramatic performance as allied ways to practice moral citizenship and shape the history of York.

Local Legal Culture in York

Evidence for this view of the plays as using legal culture to promote local civic interests can be found in the York Memorandum Books, which, like the plays themselves, functioned as local history. As Ralph Hanna has shown in his study of medieval London, legal texts were often owned by city officials or were the property of civic associations; these tomes interpolated local materials into larger legal compilations in an effort to produce a legal memory and preserve the city’s ancient custom of legal rights from encroachments by monarchical authority.²⁴ Like these London compilations, in addition to legal materials such as guild ordinances, trade legislation, and local court records, the York Memorandum Books contained in full Richard II’s city charters of 1393 and 1396, and they mentioned multiple earlier charters, including a charter granted by Richard I on March 25, 1200, and three charters of Henry III.²⁵ The inclusion of so many charters in the York Memorandum Books, along with other civic records, suggests that urban officials of York saw them—-and their construction of the city as defined by local legal rights—-as crucial to civic identity. The history of the York charters is tied to a larger history of negotiations between York and medieval monarchs, which provides a crucial context for the depiction of legal witnessing in the York Plays.

Richard II’s charter of May 18, 1396, significantly extended the liberties granted to York in earlier charters to hold courts in the guildhall and to exercise jurisdiction in all the main areas of the secular law, and generally granted extensive acquittances, privileges, franchises, liberties, and immunities to the city.²⁶ These included making the town of York a county in its own right and prohibiting the sheriff of York from exercising his authority within city walls, effectively giving York’s citizens full internal self-government, independent of county or realm.²⁷ The charter linked practical legal privileges to the symbolic political capital of the city and specifically amplified the authority of the city in relationship to king and realm.²⁸

Historians have seen the extensive rights granted to York in this charter as an expression of the prosperity and influence of the city and its elite in the late fourteenth century.²⁹ York is referred to explicitly in a late fourteenth-century petition as the second city of the realm (la secounde cittee du roialme) and as a city of great repute (une cittee de graunde reputacion).³⁰ In comments from the late 1430s, which are included in the York Memorandum Books, Roger Burton, distinguished common clerk, casually described his city as the chief place of all the north.³¹ The famous mid-century anonymous Gough map of the British Isles marks only the cities of York and London by writing their names in gold leaf.³² Modern historians reference York’s constitutional position as regional capital of the north. Citing the claim by chronicler Ranulph Higden, repeated by his translator John Trevisa, that the language of the Northumbrians and especially the people of York was incomprehensible to the people of the south, medieval historian W. M. Ormrod suggests that York seemed so clearly the symbolic center of the north as to be almost synonymous with it.³³ The wealthy medieval mercantile elite saw the city’s exceptional constitutional status as an expression of the economic success reached around the time of the 1396 charter.³⁴ In the period leading up to the York Plays, under the first three Edwards, the offices of the central government were periodically moved to York, amplifying the city’s national importance. Specifically, five times between 1298 and 1338 the exchequer and the court of common pleas were moved to York, in turn increasing the frequency with which the peripatetic court of the king’s bench and parliamentary assemblies convened there.³⁵ Thus, the unusual power given to York in the 1396 charter correlates to the power of the city at that time and can be seen as an expression of its prestige.

Sarah Rees Jones’s study shows that throughout the Middle Ages the city of York maintained its local identity, despite periodic attempts on the part of the king to make it a northern bastion of royal authority. She argues that York, while an important administrative center for the crown, retained a strong and distinctive local character and a dynamic engagement with its rural hinterland, all of which enabled it to develop an economic and cultural autonomy that on occasion could foster resistance to the demands of royal governments based in the south.³⁶ Local uprisings in 1093, 1149, 1173–74, 1215–16, and 1319–22 testify to English kings’ ongoing struggles to maintain authority in the north, and to York’s ambivalent position as both independent and subject to the Crown.³⁷ Although the king’s extensive patronage of York Minster and the 1396 city charter testify to King Richard’s investment in the city, Jones cautions that we should not overemphasize the importance of the royal government in the development of York, arguing that the development of civic government and civic society was far from determined by the demands of royal government.³⁸ The York Plays should be seen in the context of the strength of York’s local political power at the time.

The charter’s role in negotiating the relationship between monarch and city is also evident when, only nine years after the victory of the 1396 charter, in a dramatic reversal of fortune, King Henry IV withdrew York’s liberties when the city supported its own archbishop, Richard Scrope, in rebellion against the king.³⁹ The Latin chronicles of York reported that when instructed by the king to pronounce a death sentence on the archbishop for being a traitor to the king, Sir William Gascoigne, then chief justice of England, replied: Neither you, your Royal Highness, nor any of your liege in your name, have the lawful power according to the justice of royal authority to judge any bishop to death, whereupon, the chronicle reports, the king ordered a knight to pronounce the death sentence instead.⁴⁰ Although Archbishop Scrope quickly became a local martyr, evoking considerable devotion after his death, Henry IV did not delay in allowing the city to buy back its liberties for a fine of two hundred pounds. Overall, Scrope’s trial provides a particularly dramatic example of the ways that civic charters and legal jurisdiction featured in contemporary tensions between city and Crown in late medieval York.

The York Memorandum Books record several test cases in which the city reasserted its legal jurisdiction after the restoration of liberties in 1406 that show that legal jurisdiction was continually negotiated. In a case from 1408, civic officials used the charter granted by Henry IV on November 28, 1399, to support their claim to be free from interference of royal officials and subsequently exercised their liberties by trying a case in court.⁴¹ This and other cases show the overlap in legal jurisdiction that was both cause and symptom of tensions between the king and the city of York. The fact that the York Memorandum Books include these cases of disputed jurisdiction points to the importance of the charter and the courts in the ongoing negotiation of the balance of power between city and Crown, providing particular examples of the law’s mediation of the relationship between local and national power. This brief history suggests that the city’s relatively strong local power potentially explains the York Plays’ preoccupation with law and their association of witnessing with urban power.

Legal Concepts of Witnessing

In arguing that the depiction of witnessing in the York Plays promoted the performance of local civic values rather than a more centralized authority, my book’s argument diverges from that of historians who tie late medieval legal practice to the growth of central government. In addition, in contrast to a common narrative of the development of what has been called a more modern and rational proof in the later Middle Ages, I build on the work of other historians to show that concepts of witnessing and the jury trial relied as much on rumor or shared knowledge as they did on direct perception, and that medieval witness and jury trial theory, as expressed in both common law and canon law treatises, depicted even perception as simultaneously shared and individual. Complicating a now conventional case for the crucial role of law in the growth of documentary culture in the late Middle Ages, the growth of trials sustained a performative legal practice. Although testimony was recorded, witnessing was clearly defined as embodied speech, since witnesses and jurors were required to be present in court. Medieval legal theorists and other writers were concerned about how witnesses might be affected by the temporal gap between the moment in which they perceived events and the time when they subsequently testified to them in court and about how emotional states might influence testimony. These aspects of medieval witness theory and trial practices form the basis for this book’s argument about the ways that spatial, spoken, affective, and temporal aspects of witnessing interact in the York Plays.

Legal historians agree that a shift toward the witness trial was part of what historian R. H. Helmholz has called a genuine revolution in the law of proof in the late Middle Ages that shaped subsequent Western legal tradition up to the present day.⁴² In 1215, the Fourth Lateran Council effectively banned ordeals in canon 18, including both bilateral ordeals (judicial duels) and unilateral ordeals (tests by hot or cold water or by hot iron), arguing that members of the clergy should not participate in bloodshed and forbidding them to consecrate the elements.⁴³ Lateran IV’s canon 8 outlined the procedures of an inquest, "how and in what way (qualiter et quomodo) a prelate might enquire into and punish the offences of his subjects," recommending that the names of witnesses and their depositions be presented to the defendant in person.⁴⁴ These canons from Lateran IV set the stage for the development of the witness trial in the church courts and the jury trial in the common law courts, and helped to make inquisition, rather than accusation and denunciation, the most common kind of procedure.

Legal historians have argued that Lateran IV should be understood in the context of a growing number of other canon law texts that took a stand against ordeal, promoting the witness trial and empirical observation.⁴⁵ These included the influential text known as Gratian’s Decretum (c. 1140), which became the standard text of canon law by the late twelfth century.⁴⁶ Historians have shown that there was already an established interest in juridical procedure in Romano-canonical law in the years around 1215, exemplified by such texts as Tancred’s ordo iudiciarius. These ordines judiciarii, which outlined the entire course of a legal proceeding, had become a popular form of academic writing in twelfth-century Bologna, where what is known as the Romano-canonical procedural system was developed by both civilians and canonists using sources from both common law and canon law.⁴⁷ These kinds of treatises were commonly referred to by English ecclesiastical lawyers, and similar procedural works were produced in England in the late Middle Ages.⁴⁸ Twelfth-century Bolognese lawyers wrote on specific aspects of procedure, including short treatises on witnesses that were instrumental in the later development of the canonical witness and the secular jury both in England and on the Continent.⁴⁹ Short tracts with such titles as Those Things to Be Observed in the Examination of Witnesses were frequently placed in the notebooks of English canon law proctors and showed the influence of Romano-canonical writings on later English canon law practice.⁵⁰ These texts illustrate a growing interest in and deployment of trial procedures centered on the examination of witnesses in ecclesiastical courts and on the secular jury in England.

The focus on direct evidence emphasized in the Italian procedural treatises can also be found in the records of the late medieval ecclesiastical courts, including those in York, and the ordo iuris is also credited with giving rise to a common law of proof.⁵¹ A series of statutes in England, including the Statute of Gavelet of 1316, asserted that the truth of a matter was decided by witnesses who spoke of what they had seen and heard themselves (de plenu visu et auditu). In his discussion of the Grand Assize, in his twelfth-century Treatise on the Laws and Customs of the Realm of England, Ranulf de Glanvill describes a procedure in which jurors are summoned to testify. They must swear not to declare falsely, nor knowingly suppress the truth. The knowledge required from the jurors is that they shall know about the matter from what they have personally seen and heard.⁵² A similar set of phrases is used in the influential mid-thirteenth-century treatise De legibus et consuetudinibus Angliae, commonly known as Bracton, which argues that an appellor in a homicide case must be able to specify the year, the place, the day and the hour [de anno, de loco, de die, et hora], speak of his own sight and hearing, and be consistent in . . . all circumstantial details.⁵³ Both Glanvill and the authors of Bracton describe what