The Law Whistles: A Case Study of the Trials of Hermione and Perdita in The Winter's Tale

Abstract

The trial scenes at the heart of The Winter’s Tale present powerful metatheatrical episodes that also serve as legal exemplars in the use (or misuse) of evidence and argument. Legal analysis of this text yields surprising riches amazing to both legal and Shakespearean studies. The type of forum, whether public or private; the nature of the audience, whether peers or the public; and the type of evidence, whether of pattern or practice, admissions against interest, demonstrative or character, inform the analysis. The Winter’s Tale builds legal texts of circumstantial evidence, weighted both wrongly and rightly, into a morally transformative, redemptive drama. In the play, the evidence adduced in three consecutive tribunals rationally, although erroneously, builds from Leontes’ suspicions to the jailing of Hermione on charges of adultery with Polixenes, to his conviction and consignment to the flames of his infant daughter Perdita, and then to a formal capital indictment for high treason that includes Hermione’s conspiracy with Polixenes and Camillo to murder the King. Fittingly, as the dramatic and legal tension mounts, trials begun in private spaces (a Queen’s sitting room and a King’s bedchamber) move to the climatic public forum. This shift of venue from private to public spaces does not obscure or alter the nature of the evidence. The textual evidence proffered on all charges is both purely circumstantial and cumulatively ambiguous. Circumstantial evidence is indirect in nature, consisting of inferences arising from facts woven into a chain of events offered to support a conclusion. The weight of the circumstantial evidence at trial must therefore support Leontes’ charges against Polixenes and Hermione but, at the same time, serve as a basis for something other than a revenge tragedy. The King cannot begin this case as a ii madman if the full force of the tragedy, or the ultimate comic redemption, of the play is to work. There must be some logical, textual basis for his version of the events as crimes. The cogency, completeness, and strength of the evidence become crucial in this regard, especially when facing the Delphic scale of moral certainty. Arguments by both prosecution and defense establish the requisite legal, but ultimately tragic, tension. Leontes’ arrangement of the chain of events into the “facts” of adultery and conspiracy, though plausible, is wrong. When circumstantial evidence is at issue and is, as here, the sole basis supporting guilt, the quality of the evidence must be stringently tested. Conviction on “pure surmises” (3.2.119) is, as Hermione argues, “rigor, not law” (121). The facts and inferences underlying circumstantial evidence should be carefully sifted and evaluated in light of the standard of the burden of proof. Leontes argues temporal and pattern or practice evidence; testimony and actions as admissions against interest; in order to support his surmises from the evidence to proof of Hermione’s, Polixenes, and Camillo’s guilt. Paulina and Hermione respond with demonstrative evidence of physical appearance and character evidence to rebut his charges. The oracle, the ultimate truth-teller, renders the verdict -- testing Leontes’ case and finding it wanting. Tragedy immediately ensues, although the seeds of comic redemption are sown in the previous forums. Shifting texts with narratives supporting innocence or guilt are familiar to both literary scholars and lawyers. Applicable of legal analytical principles to the trial scenes in The Winter’s Tale yields results of benefit to both fields. Untwisting one strand of scholarship provides surprising results. This being done, “let the law [and literature] go whistle, I warrant you.” (4.4.23)