[(essay date 1996) In the following essay, Hodges discusses Nathaniel Hawthorne's interpretation of Puritan imagination in The Scarlet Letter, finding that the author's emphasis on ambiguity and resisting reductive interpretation creates "tension between the demands of structure and the force of experience," a tension that can also exist in the formation of legal structures.]
The short first chapter of The Scarlet Letter ends with talk of a wild rose-bush, covered with gem-like flowers, growing on one side of the door to the ugly, weather-stained prison--"the black flower of civilized society."1 This door, with its rusty, "ponderous" ironwork, "looked more antique than anything else in the new world ... it seemed never to have known a youthful era" (75). The rose-bush beside it, "by a strange chance," had been "kept alive in history," but how or why we are never told. Hawthorne will do no more than pluck one of its flowers and present it to the reader, as a symbol of "some sweet moral blossom" found along the way, or as relief to the dark tale of human sorrow.
We might wonder why Hawthorne roots his rose at the threshold of his story, merely to pluck it, to let its inexplicable force fade into a moral lesson. The rose-bush, like other central images in the novel--the letter "A" and the forest, for example--holds the potential for ambiguity. It not only grows next to the prison, the "black flower of society"; it grows out of the same soil. By linking these two different flowers, the prison and the rose-bush, Hawthorne is alerting us to the complexity of his fable. To "read" the rose as an emblem of youth or of love and its passing would be a kind of reduction, analogous to the moralistic or narrowly allegorical readings of fiction which Hawthorne's opening invites us to resist.
The figure of the rose introduces us to one of Hawthorne's essential concerns: the danger of reductive reading, or of judging too quickly. Most of the major and minor characters in the novel--the tormented lover and guilty minister, Arthur Dimmesdale; the cold, vengeful husband, Roger Chillingworth; the town gossips and magistrates--are guilty at one time or another of reducing the complex humanity of Hester Prynne to the fixed meaning associated with the letter she must wear on her breast for life, the "A" that identifies her, simply, with the single fact of adultery. In opposition to the culture-bound, formalizing impulse of the Puritan community, Hester and her spritely daughter Pearl appear to be in touch with the imaginative forces that resist reductive readings. Hester, in Hawthorne's words, "assume[s] a freedom of speculation ... our forefathers ... would have held to be a deadlier crime than that stigmatized by the scarlet letter" (183). Pearl, inheriting her mother's passionate nature and defying, as a "demon child," the very definition of the human, sports about with the "waywardness of an April breeze" (197). For Hawthorne, the speculative, the natural, and the demonic, perceived by the Puritans as transgressive, are essential elements of the human imagination which, subject to the shaping hand of art, challenges the traditional boundaries and cliches established by collective institutions.
Hawthorne's fiction thus presents us with a dilemma recognized by lawyer and poet alike; for in both legal and imaginative writing, some reduction is inevitable. If poems, in Marianne Moore's phrase, are "imaginary gardens with real toads in them," it is because the imagination has been disciplined into giving them shape. Likewise, when Oliver Wendell Holmes in one of his most quoted lines claims that "the life of the law has not been logic: it has been experience," he recognizes, like Moore, the tension between the demands of structure and the force of experience, or the real.2 The law for Holmes provides a form for channeling society's uncontrollable passions and putting an end to the interminable cycle of revenge. But boundaries, necessary as they are to the survival and the creation of forms, can at times inhibit or distort their growth. How to balance the conflicts inherent in this drama is the story of both law and literature, and of Hawthorne's Scarlet Letter.
Hawthorne as Bricoleur
Before turning to the workings of the Puritan imagination in Massachusetts in the 1640's, let us look at Hawthorne's method to illustrate the psychological and technical complexity that accompanies the act of reading and writing. His method is not unlike a lawyer's when he builds a case--juxtaposing past and present, precedent and context--but he is perhaps more wary than the lawyer of plucking the rose too quickly and effacing the signs of paradox and ambiguity.
In the prelude to The Scarlet Letter, Hawthorne takes an autobiographical detour to describe his experience working as a functionary at the Custom-House in Salem. Meditating on his own professional life, he dips back into his past, calling up images of two notorious ancestors: one a stern soldier, legislator, and judge; the other, the judge's son, Hawthorne's great-great grandfather, who "inherited the persecuting spirit" (41) and participated in the witchcraft trials of 1692. These "stern and black-browed Puritans" would have scorned as "worthless if not positively disgraceful" his work as a "writer of storybooks" (41-42).
As part of this meditation Hawthorne provides portraits of his fellow workers, devoting special attention to one old General, once strong and massive, "not yet crumbled to a ruin," a man who offered Hawthorne a "rare instance ... of a person thoroughly adapted [unlike Hawthorne] to the situation which he held" (55). Hawthorne describes this man in a way that anticipates the strategy he will use in telling the tale of Hester Prynne:
To observe and define his character ... was as difficult a task as to trace out and build up anew, in imagination, an old fortress, like Ticonderoga, from a view of its gray and broken ruins.
His job, as a writer, has been to reconstruct from the broken ruins--the remaining wall, the "shapeless mound ... overgrown with grass and alien weeds"--a portrait of the brave old General. The Scarlet Letter has been similarly reconstructed from a pile of "heaped up rubbish" (59) discovered "one idle and rainy day" in a deserted corner of the attic of the Custom-House. Within this rubbish Hawthorne has chanced upon a curious small package wrapped in ancient yellow parchment and tied with faded red tape. Within the packet he has discovered a "rag of scarlet cloth," moth-eaten, which, after some fiddling, takes on the shape of a capital "A"; and some "half dozen sheets of foolscap" containing various particulars of Hester Prynne's life as written down by a Mr. Surveyor Pue in the 1750's from the oral testimony of aged persons who in their youth had known Hester as a "very old, but not decrepit woman." These material relics and the testimonies and ghostly voice of Mr. Pue emerging from them provide the "groundwork" (65) from which Hawthorne builds and "dresses up" his tale.
Responding to his own professional crisis and uncertainty about his future as a writer (he was about to lose his job at the Custom-House, his only stable source of income), Hawthorne imagines that it is the ghost of Mr. Pue that serves as his "official ancestor," in place of his great-great grandfather, exhorting him to seize upon this occasion and "bring his mouldy and motheaten lucubrations before the public" (64). The passage reflects both the author's personal anxieties and his strategy as a writer, and suggests that the two are related. Unpacking layer after layer of potential meaning, the author discovers no final clarity but, rather, a solitary, ambiguous letter which tempts him to tackle the awesome task of imaginative reconstruction. At the same time the storyteller fears he has lost his power over "the tribe of unrealities" that now confront him (65). Anxiety about the source of that power is figured by his evocation of ancestors, both real and "official," neither of whom is simply discarded or displaced. His witch-hanging ancestor, whose profession and perspective he will ultimately renounce, gives voice, strident though it may be, to the formalizing impulse which has its part to play in structuring the material fragments of the past. Surveyor Pue invites him to exploit the full potential of his narrative gift.
It is striking that the stories his ancestral voices tell him have at their center a matter of law. The fragmented testimonies of Mr. Pue bring to life the old figures of the judge and his son, whose own efforts to structure the particulars of human behavior had such a different goal and followed such a different logic. For while the law pursues coherence with the aim of bringing structure and homogeneity to the community (by hanging witches, for instance), Hawthorne's fiction, by contrast, reminds us that such coherence is purchased at a cost. But it does more; it questions whether such coherence is even possible. Thus, if at the beginning of the novel Hester's "A," here preserved in the rag of cloth, seems to testify to the law's univocal efficacy, no one at the end of the novel, even after the dying Dimmesdale confesses his guilt, will be able to agree on what they actually saw on the minister's chest.
Myth, History, and Law
The Scarlet Letter dramatizes the struggle between form and experience by exposing the limitations of such seemingly definable categories as history and myth. Hawthorne's quarrel with his own past is played out in his novel among characters struggling to adapt their lives to a new context. He situates their story in a particular moment in real history--the decade of the 1640's in the Massachusetts Bay Colony in which first generation Puritans are building their community in the New World. Their town stands at the edge of the wilderness, a tiny rough-hewn settlement planted between a savage unknown and the civilization of an Old World, "a paternal home" all had left behind (85). Just as Hawthorne struggles to shape his story, so too will the characters of the novel struggle to piece and hold together the meaning of their lives.
What strikes one about this historical context is its instability. The story takes place at a transitional moment, between old and new. The settlers brought with them a rigid legal and moral code based on Mosaic law. They hoped to plant in this wilderness a new Eden, free from the political conflict and religious persecution experienced in England during the sixteenth and seventeenth centuries. Sustained by a strict, typological reading of the Old Testament, they sought to establish a new theocracy in which the covenant between God and his people demanded strict performance of his laws. As John Winthrop suggested in the spring of 1630 in a sermon delivered from the deck of the flagship Arbella, survival in the new land would depend on their keeping God's commandments:
... we are commanded this day ... to keep His commandments and His ordinances and His laws and the articles of our covenant with Him, that we may live and be multiplied, and that the Lord our God may bless us in the land whither we go to possess it: but if our hearts shall turn away so that we will not obey, but shall be seduced and worship ... other gods, our pleasures and profits, and serve them, it is propounded unto us this day, we shall surely perish out of the good land whither we pass over this vast sea to possess it.3
Winthrop's terms, which echo God's warning to the people of Israel, would have resonated on a literal as well as a spiritual level for settlers threatened not only with a perilous sea voyage but with cold, hunger, disease, and hostile attacks on land. The Puritans' belief in the covenant permeated every aspect of their physical and spiritual lives, binding the two spheres together. In Hawthorne's story Governor Bellingham and his fellow magistrates used this vision not only to unite the community but to control, by humiliation, banishment, or death, any wayward member. Hester's case forced them to test the ground of that vision. In violating one of God's original commandments, her act of adultery challenged the community's vision of itself, its past and its future.
Although we speak here as if history referred to a stable, definable reality, we must also understand the Puritan community as a rhetorical construct precariously bound together by myth and desire. Winthrop's theocratic vision relies on ancient and sacred myths which come, after years, to behave like history. This sacred tradition legitimates his argument in the ears of his listeners; it provides the unchallenged framework through which the Puritans understand their history and the future that will flow from it. But it does so partly by denying or effacing other aspects of that history--collective as well as personal, objective as well as fictive or unconscious.
In his essay Nomos and Narrative Robert Cover makes a similar point about the law, suggesting that law, like history, has an inevitable entanglement with myth, or, as he calls it, narrative: "no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning. For every constitution there is an epic, for each decalogue a scripture. Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live."4 Cover is suggesting that although the law desires to stake out a claim about its fairness, objectivity, or neutrality, such a claim is misguided because laws originate, not in an all-knowing, clairvoyant mind, like that of God or of Plato's philosopher king, but rather in the contextual narratives of a given society--in its particular language, history, and myth. The law, in other words, does not speak clearly and univocally, as God is supposed to have done on Mt. Sinai. It grows out of and is constructed from multiple voices within a particular community. One wants, in Cover's view, to base one's interpretation of law on an understanding of those voices rather than to impose what may appear from one's own perspective to be a more correct, more universal principle of justice: "each 'community of interpretation' that has achieved 'law' has its own nomos--narratives, experiences, and visions to which the norm articulated is the right response ... different interpretive communities will almost certainly exist and will generate distinctive responses to any normative problem of substantial complexity."5 For Cover the laws of each community should be read in light of the norms of its particular culture. Ideally, lawyers and judges would provide the "right response," "right" that is, not in terms of some universal or objective sense of right, but "right" from the community's perspective.
The communitarian response to the limits of legal formalism allows us to recognize, if we have failed to before, that the rhetoric of precedent, handed down for generations, can, like history, deafen our ears to other voices, most often of those who are powerless or who are discriminated against. But determining how and if Cover's "right" and particular response is in fact right remains the constant burden of legal interpretation. Lawyers and judges repeatedly ask whether it is best for a cobbler to fit a shoe to each foot or for a factory to mass produce the shoe, knowing that it will fit most feet well enough to wear. In inviting us to think about the perspective of a cobbler's world, Cover is asking us to recognize the extent to which all law is constituted by the complex mythology of particular people and thus to resist picking the rose too soon.6 The history of the laws against adultery illustrates the extent to which law can grow out of the particular narratives or communal nomos of its society. Both the laws and the narratives underlying them vary so that an historical summary is impossible, but they seem to fall into two principal categories. Looking at old Babylonian, Hebraic, or Hindu law, for instance, or at later laws influenced by the Church, we find a tendency to consider adultery a moral transgression. Looking at early English and Germanic law, however, we see adultery treated rather as a threat to the family line or as a violation of property rights. To complicate matters, the laws within any given community may evolve over time to reflect some combination of these two approaches.7 Moreover, supporting the various social arguments there is often a psychological argument implying that adultery is "a blow to a man's pride" which he has a need--and so a right--to avenge.8 If the specific reasons for the laws are, as one writer put it, "as numerous and ancient as the races of man," so too are the remedies.9 An aggrieved husband may kill the rival or a member of the latter's kinship group, or he may call for a regulated fight or public humiliation of the interloper. Alternatively, the adulterer himself may voluntarily submit to physical punishment, or offer some form of payment, including a new wife for the husband.
The literary fortunes of adultery are as various as its historical description. Indeed among legal themes it is unquestionably the most prominent, providing the principal motivation for narrative fiction from Homer's Iliad down to the latest best seller. In Adultery in the Novel Tony Tanner goes so far as to see sexual transgression as the key to the development of the novel. We have the Iliad, he says, because Paris--the guest and outsider--broke the taboo against sleeping with his host's wife. After citing further instances (Tristan, Lancelot, La Nouvelle Heloise, Madame Bovary, and many others) he goes on to argue that adultery becomes the obsession of the bourgeois novel because of the central importance of marriage in bourgeois society.10 The breaking of one bond (by adultery) portends the dissolution of all bonds; individual transgression leads to social disintegration. Tanner's point here is that the force that disrupts the social order is the force that drives on the narrative.
This figurative extension of the notion of adultery attests to the breadth and depth of society's vulnerability: sexual transgression touches on the deepest questions of self definition and social stability. The final act of Shakespeare's Merchant of Venice, a play concerned ostensibly with questions of legal and social justice, shows us how pervasive the anxiety about sexual transgression can be.11 Following the trial and banishment of Shylock, the reunited lovers slide into mutual accusations of infidelity, even as they recall the night of their betrothal (V.1.17-22). The fantasy of a perfect harmony between lovers and citizens ("a concord of sweet sounds"), spun out in Portia's moonlit garden, is undermined by Jessica's repudiation of music (V.1.69) and by the subsequent arguments over lost rings and broken oaths that end the play. Shylock may have been judged, social harmony inaugurated, but a pervasive worry over transgression and betrayal nonetheless remains. The fear of sexual infidelity can no more be banished than a pound of flesh can be cut from a living body. Infidelity and oath-breaking are too close to the social heart.12
What is at stake in the breaking of marital bonds is ultimately the integrity of society itself. Infidelity and oath-breaking in the private sphere anticipate treason in the public sphere so that, as Lorenzo warns, "The man that hath no music in himself ... [i]s fit for treasons, stratagems, and spoils" (V.1.83-85). The transgressions at the core of festive comedy thus reflect a fear, which finds expression in the laws a society develops to preserve its integrity. These laws, Cover has suggested, arise from the particular nomos of a community, but the argument also works in reverse. The laws can, over time, become part of that nomos, helping to structure the myths and language by which the society defines itself. The history of the laws against adultery illustrates this reciprocal work of self definition.
Adultery: Private or Public Wrong?
From earliest times adultery, like homicide, was considered a private wrong against the victim and his kingship group, and most primitive societies left the punishment of adultery in the hands of the injured person and his kin. The retaliation against the person who had committed the offense gave rise to long-lasting blood feuds between different clans or tribes. Belief in the principle of retaliation seems to lie at the source of the earliest law codes and, as we shall see, plays a prominent role in the laws prohibiting adultery. Steeped in the epics that document these feuds, Holmes has argued that "the early forms of legal procedure were grounded in vengeance."13 Thus if a beast kills a man, the beast is slain and cast out; if a slave kills a man, the slave is given up to the relatives to use him as they please; if an inanimate thing causes death, it is cast out beyond the borders. The liability in early times, in Holmes's view, "seems to have been regarded as attached to the body doing the damage, in an almost physical sense. ... [T]he hatred for anything giving us pain ... leads civilized man to kick a door when it pinches his finger."14
We find this principle at work in the earliest laws that seek to redress the violation associated with adultery. The Code of Hammurabi, dating from about 2250 B.C., punishes both adulterer and adulteress (unless the husband or king decides otherwise):
If the wife of a seignior has been caught while lying with another man, they shall bind them and throw them into the water. If the husband [lit., "owner," "master"] of the woman wishes to spare his wife, then the king in turn may spare his subject [lit., "his slave"].15
Permission to kill an adulterer or adulteress was actually contained in the written codes of many ancient societies. This sort of redress--directed against the actual body of the aggressor--gradually gave way to various legal substitutions which, by averting the blood feud, sought to maintain social order. Regulated fights or public humiliation of the offender would sometimes satisfy the victim's thirst for revenge. In certain societies the offender might agree to allow the victim to throw spears at him or hack his body with knives.16
Building on Holmes's view, Jeremy Weinstein argues that the most significant change in the development of primitive law occurred when the responsibility for righting a wrong shifted from the individual to the state. To insure social control the state sought to "assert a monopoly of force prohibiting its use by any other than itself."17 What were once considered private wrongs against an individual "came to be seen as a public wrong against the domestic order and therefore against the state."18 The system of private settlement between warring parties was gradually suppressed as the state increasingly asserted its own right to punish wrongs.19 By taking responsibility for punishing the crime, the state hoped to co-opt private vengeance; rather than allow the husband to kill his wife or her lover, and thus initiate a blood feud, the state attempted to settle the dispute according to its own laws. This plan, however, did not always work. It often failed to satisfy the victim's psychological need for revenge. And rather than force its point, the state would often look the other way when an aggrieved husband exercised his vengeance on his own.
We find this curious tug of war between state and individual over the punishment of adultery vividly played out in the records of the earliest English kings. In their laws sexual offenses occupy a prominent place among other private wrongs--homicide, severe personal injury, theft, and the abduction of women and children--wrongs affecting a person's body or property. Aethelberht's Dooms (ca. 600 A.D.), the oldest surviving literary document in any Teutonic tongue and arguably the first in the "grand traditions of English law and English literature,"20 provides an unusually complete set of laws detailing the compensation a man would pay for violating any part of the body, from head to toe: for seizing the hair, breaking the outer cover of the skull, disabling a shoulder, destroying the hearing, striking off an ear, piercing an ear, lacerating an ear, knocking out an eye, piercing a nose, knocking out a tooth (a different price for each tooth), destroying a nail on the finger, or on the toe (a different price for each finger or toe), for destroying the generative organs, to name only a few; for each offense a man paid a fixed compensation.21
The adultery laws (and laws against illicit sex in general) were equally comprehensive. Underlying these laws was the institution of the bride-price marriage, the gift to the bride's father or next of kin to secure consent for the marriage. Any illicit sex upset the husband's and father's expectations regarding the bride-price and was felt as a wrong to the kinship group in which she lived.22 For lying with a king's maiden a man would pay 50 shillings (equal to about 50 cows); one would pay a different price for lying with a nobleman's serving maid, a commoner's serving maid, or a slave (and there were slaves of different classes).23 The compensation depended on the severity of the crime and on the social class of the person violated. Section 31 provides an interesting alternative for the freeman:
If [one] freeman lies with the wife of [another] freeman, he shall pay [the husband] his [or her] wergeld,24 and procure a second wife with his own money, and bring her to the other man's home.
The Dooms also tacitly allowed a husband to kill the man he found with his wife. The Code thus permitted several options for the offended husband. He could exact his vengeance, accept compensation, or accept a new wife. These options suggest a certain ambivalence, and perhaps a certain pragmatism, on the part of the lawmakers about just how to handle adultery and the feelings it aroused. Even though the Code sought to diffuse resentments arising from private wrongs--by setting a price on every conceivable wrong to the body--it also seemed to recognize the real difficulty in successfully containing the force of resentment. At some level compensation could never repair the loss or injury felt to one's sense of self.
This small section of English law concerning adultery shows that even within a single "culture" the law is not particularly stable.25 But despite the fact that various options were left open to the offended husband, the idea of protecting one's own integrity and pride remained constant. Alfred's Code, issued between 871 and 893, codified this principle, providing the first English example of a rule that explicitly permitted a husband to exercise his vengeance:
A man may fight, without becoming liable to vendetta, if he finds another [man] with his wedded wife, behind closed doors or under the same blanket; or [if he finds another man] with his daughter [or sister]; or with his mother, if she has been given in lawful wedlock to his father.26
This law points both to the distant past--to the code of Hammurabi, Mosaic law, and Roman law, which gave the husband the option of killing the man he had discovered lying with his wife--and to our own time--to state statutes which explicitly permitted the husband to exercise his vengeance well into the twentieth century. In Texas, for example, as recently as 1973, murder was permitted if the husband had discovered the parties in the act of adultery, before they had separated.27 And Georgia permitted a husband or father to kill the lover of his wife or child under limited circumstances until 1977.28 Such statutes reflect a psychological no less than a social motive. In taking over the punishment of the offense, the state could never fully succeed in suppressing the powerful resentment aroused by adultery. Thus, in certain clearly defined situations, the law endorsed murder, sometimes tacitly, sometimes explicitly.
What effect did Christianity have on the laws against adultery? Although England's conversion began with the mission of Augustine in 597, Christian ethical precepts did not begin to make themselves felt in the written laws until the tenth and eleventh centuries. With the spread of Christianity in the eighth and ninth centuries adultery had come to be seen as a sin, but this attitude did not noticeably affect the laws. Earlier law--Aethelberth's Dooms and its successors--had generally focused on the specific compensation required for particular offenses. Alfred's Code, issued between 871 and 893, continued to reflect the effort of these earlier codes both to regulate blood feuds by requiring payment to offended husbands29 and, at the same time, to allow the husband (or father) to exercise his vengeance without fear of retribution from the victim's family.30 By and large, adultery was treated during this period as a private wrong despite the presence of Christianity.
Beginning with the Central Codes, issued between 900 and 1100, adultery, prostitution, and other forms of illicit union were classified as sins and explicitly forbidden.31 This shift had an important ideological component: sexual offenses became moral wrongs against the state rather than private wrongs against the individual and, as a result, punishments sometimes assumed a new severity. The laws of Cnut, for example, sought to enforce monogamy, by mutilation if necessary.32 It remained true, however, that the main thrust of English law into the early twelfth century was to control the blood feud. Thus while new laws arose reflecting Biblical influence, the kings also retained the two approaches of older laws, the one urging compensation, the other regulating (which often meant permitting) revenge.33
The complex legal picture which emerges by the twelfth century reflects both the socio-political realities behind these earlier codes and, increasingly, the state's growing interest in consolidating political power. Adultery was now subject to severe punishment by the state, but the laws were not uniformly enforced. It could be regulated by compensation, but it remained the only wrong for which compensation had not become obligatory.34 During the rule of the Normans adultery continued to be a crime whose punishment escaped the full force of the state. Eager to solidify their authority, the Normans made extensive reforms in the law by repealing the death penalty for most crimes and instituting the lex talionis, or "eye for an eye" (Exodus 21:2-22:17, and Leviticus 24:20). Rather than be hung or flayed for a crime, an offender might have his eyes put out, or have his feet or his hands cut off, or be castrated, "so that the trunk remains alive as a sign of his treachery and wickedness; for the penalty inflicted on malefactors should be in proportion to the crime committed."35 Despite such efforts to take responsibility for all punishment, the state continued, however, to permit an exception in the case of adultery; under the Laws of William I, an aggrieved husband was permitted to slay the adulterer.36 Rather than transforming the legal codes, Christianity simply imposed its own ideology on pre-existing layers of older law.
Weinstein claims that it was in the twelfth century, that adultery was reclassified as a matter related to marriage and turned over to the ecclesiastical courts.37 Pollock and Maitland, in The History of English Law, have suggested that had the church "left the matter to laymen," state sanctions in matters of sexual morality would have been far sterner.38 But history does not show, in the case of adultery, a clear development from the ethos of revenge to the ethic of law. Husbands continued to act against their rivals; the state, in not punishing the retaliation, often granted tacit permission for it; the church, with the gradual decline of its authority, was ineffective; and personal, silently sanctioned, retribution persisted.39
Puritan law is a product of this complex past and brings together its dominant motifs: Christian morality, which labels adultery as a moral offense; Mosaic law, which punishes adultery with death; and early English law, which, as we have seen, never resolves its ambivalence over whether the punishment of adultery should be carried out by the state or left to the individual. Reflecting this ambivalence, The Scarlet Letter stands on a precarious line between primitive law, where private wrongs are righted by an individual act of revenge, and modern state law, where the state takes over the job of punishing the wrong. Hawthorne's tale invites us to look more closely at the interdependence of myth and law proposed by Robert Cover. Its narrative relies on bits and pieces drawn from the mythical, historical, legal, and theological past, and evokes the complexity of this legacy, from both a technical and a psychological point of view. It seems, in fact, to bring together the darker, more sinister aspects of both state and private law. The magistrates of the state, who are also the guardians of the soul, fall victim to the rigid formalism of its laws. The wronged husband, Roger Chillingworth, gives in to his insatiable desire for vengeance and subjects Dimmesdale to psychological torture. Only Hester and Pearl offer imaginative alternatives to both Puritan formalism and the excesses of personal vindictiveness.
The Letter of the Law
Turning directly to the Puritan laws of colonial Massachusetts, we find that lawmakers in October 1631, soon after their arrival on American soil, passed the first law punishing by death both parties guilty of adultery.40 For technical reasons this law was abrogated and a new version substituted in 1637/38. In December 1641 the Court adopted the Body of Liberties. Section 94, entitled "The Capitall Lawes of New-England," lists fifteen capital offenses, all of them taken directly from Mosaic law.41 These fifteen laws seem to give shape to the Puritan vision, especially if we consider their order. The first law forbids worshipping false gods, and the third protects God's name from blasphemy. Between them, in second place, is the prohibition against witchcraft.42 Together these three laws concern commerce with the supernatural. The fifteenth law, by contrast, prohibits conspiracy and any form of rebellion against or subversion of the Commonwealth. God and the state thus provide the frame for the body of social regulations which prohibit, in order, premeditated murder, flaying another in passion or through guile, bestiality, sodomy, adultery, copulation with a woman-child under ten, rape, theft, and bearing false witness. Hester's act of adultery belongs to a group of crimes which defy social norms and threaten to defile what the community holds sacred--on the one hand God's name, and, on the other, the security of the commonwealth.43
The 1641 law remained the same for the 1660 and 1672 editions of the law, and on May 20, 1694 the General Court in Boston passed an Act against Adultery and Polygamy, in which adultery was no longer a capital offense.44 The new law introduced the letter penalty, partly in response to the fact that the death penalty was rarely enforced.45 The Colonial Laws of Massachusetts report that in March 1644 a couple was condemned to death.46 The Massachusetts Colony Records report only five cases of adultery between 1636 and 1654, and no one was sentenced to death.47 The Plymouth Colony Records are not clear about whether adultery was a capital offense, but they do provide what appears to be the earliest evidence of the use of the letter penalty. In 1639 and 1641 adulterers were carted through the street or whipped and required to wear the letter "A" or "A D" cut out in cloth and sewn upon the arm or upper back.48 In 1658 the Court passed a law codifying the practice of whipping and wearing letters sewn on the upper garment.49
Although death was the legal punishment for adultery, courts hesitated to act with such harshness, often relying on, and applying at their discretion, traditional English punishments for non-capital offenses, including the stocks, the whipping post, the pillory, and the cleft stick.50 Such public displays served to keep before the community's eyes the constant image of human error and its consequences. Thus citizens guilty of such theoretically capital offenses as adultery, incest, and blasphemy might have found themselves standing on the pillory or by the whipping post, or sitting in the gallows with a halter around their neck. And last but not least, they could have been wearing a label stuck in their hats or a letter pinned on their sleeve. Letters, badges, or labels existed for scores of offenses in the seventeenth-century colonies, including whoredom, incest, drunkenness, profane swearing, unclean and lascivious behavior, and thieving. Temporary exposure of an offender with a label or letter indicating the nature of the offense was common, and was incorporated in several of the penal statutes.51 The letters were cut from cloth or written on paper, and were worn around the neck, on the hat, or on the garment. Occasionally an offender accepted a placard "in pride and pleasure" as a protest against ecclesiastical tyranny--"A WANTON GOSPELLER," for example.52
The letter penalty is related not only to the general tradition of public humiliation but to such intimate forms of bodily punishment as branding, stigmatizing, and mutilation which were common in the early-modern period. In her discussion of scolding and other crimes uniquely associated with women in sixteenth-and seventeenth-century England, Lynda Boose shows how shaming rituals were used against women in order to limit the perceived challenge to patriarchal authority. She notes, in particular, an "upsurge in witchcraft trials and other court accusations against women," including scolding, brawling, and dominating one's husband.53 The scold, defined legally as a "troublesome and angry woman, who by her brawling and wrangling amongst her Neighbors, doth break the publick Peace and beget, cherish, and increase publick Discord,"54 was punished publicly by being placed in a pillory or submerged in water on a cucking stool. This ritual form of disgrace was designed to shame the scold into forsaking the devil and giving up her "devilish tongue."55 Paraded through town in a cart to the accompaniment of carnivalesque music and indecent gestures and sounds, she was subject to physical as well as moral humiliation.56 The harsh public exposure degraded, at the same time as it disoriented and discomforted, the malefactor. Woman was dethroned and reduced to a joke--for having been too outspoken.
Scolding may be linked to blasphemy and even to adultery by way of the figure of the "devilish tongue." As Boose and others have pointed out, a talkative woman was frequently associated with a sexually available woman; excess in either area was perceived as a threat to social stability.57 Mosaic Law implies a similar relation: speaking against God, committing adultery, and practicing witchcraft are all presented as "defilements," "abominations," and "perversions." In other words, they are all understood as negations of God's authority or profanations of his holy name. Leviticus 20, for example, illustrates the close connection between sexual, verbal, and political misconduct on the one hand and witchcraft on the other. In the opening verses, child sacrifice is described as "giving one's seed to Molech," and worship of foreign gods is condemned under the familiar figure of "whoredom." This condemnation provides the introduction to a long list of sexual offenses, beginning with adultery: "And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death" (20.10).58 The law against witchcraft occurs only in the last verse of the chapter (20.27): "A man also or woman that hath a familiar spirit, or that is a wizard, shall surely be put to death."59 It seems tagged on to the list of sexual offenses, but the fact that it appears in this context at all suggests an intuition about the link between different orders of transgression--a link that becomes fully conscious in seventeenth-century New England.60 In the new theocratic community, sexual offenses, together with other "defilements," were likewise transformed from private into public wrongs. Disobeying any one of the commandments was evidence of a "devilish tongue" and became tantamount to an act of treason against God and State--an example of linguistic and legal transference which Hawthorne so masterfully recreates in The Scarlet Letter.
Underlying the textual force of the Puritan laws against illicit sexuality are deep-seated myths that link sexuality with defilement. These would explain not only the content of God's capital laws, but his repeated references to words and acts that profane or defile. In his major study on the relationship between sexuality, violence, and ritual sacrifice, René Girard suggests that this association is fueled by sexuality's connection to menstrual blood and by men's fear of it.61 Most primitive people, Girard argues, sought to avoid contact with blood; their experience suggested that whenever violence was unleashed, blood flowed, stained, and contaminated whatever it touched. Once unleashed it became contagious, like a disease, and one act of violence bred another. This is the old story of the blood feud, and when a sexual violation is at the core of the violence--like Paris's abduction of Helen, which launches the Trojan war, or Jason's betrayal of Medea, which triggeres her unspeakable rage against her children--the psychological link between sexuality and violence is reaffirmed. Once a community feels threatened with contamination, it seeks to purify itself--by banishing or killing the source of pollution.
The alternative, and this is Girard's main point, is for the community to rid itself of impurity by ritual sacrifice. A sacrificial victim (animal or human) is chosen and serves to absorb the internal tensions, feuds, and rivalries pent up within the society. When the victim is sacrificed, the elements of dissension, and thus the social violence, are, for a time, eliminated. The purpose of the sacrifice, Girard explains, is "to restore harmony to the community, to reinforce the social fabric."62 One could argue that the kinds of punishment we have been looking at serve a similar function. The community, by branding a person, either literally or with a letter, inscribes on that person his or her status as victim. And even though that victim may not be literally sacrificed, he or she becomes the repository of the community's ills. Thus Hester Prynne bears her society's displaced fears of sexuality, demons, and witches--in short, of its own impurity and potential violence.
The Scarlet Letter
When Hester stands on the scaffold, with the scarlet letter on her breast, and Pearl in her arms, she becomes the target of society's desire to purify itself and in so doing to reconfirm its social and moral boundaries. As an adulteress, she could have been legally condemned to death, but in the magistrates' "great mercy and tenderness of heart" (89) she is spared and allowed to stand three hours on the platform of the pillory and to wear, for life, "a mark of shame upon her bosom" (89). Some in the community lament this "great mercy." The gossips standing close by, reminiscent of a Greek chorus, respond variously to Hester's plight, but the harshest suggests that Hester has contaminated them all: "This woman has brought shame upon us all, and ought to die. Is there not law for it? Truly there is, both in the Scripture and the statute-book" (79). Even though adultery was rarely punished by death, the voice of this pitiless dame resonates in a community whose members pride themselves on the fact that their "godly New England" is a place where "iniquity is searched out, and punished in the sight of rulers and people" (88). The stranger in town, the as yet unnamed Roger Chillingworth, comments that "she will be a living sermon against sin, until the ignominious letter be engraved upon her tombstone" (90). And the narrator, reflecting on the inner trials that Hester would undergo day after day, summarizes the social view of Hester:
Giving up her individuality, she would become the general symbol at which the preacher and moralist might point, and in which they might vivify and embody their images of woman's frailty and sinful passion. Thus the young and pure would be taught to look at her, with the scarlet letter flaming on her breast,--at her, the child of honorable parents,--at her, the mother of a babe, that would hereafter be a woman,--at her, who had once been innocent,--as the figure, the body, the reality of sin. And over her grave, the infamy that she must carry thither would be her only monument.
To reassert its own innocence the community banishes Hester, allowing her to live in an abandoned cottage, on the outskirts of the town, on the shore, away from any other habitation, "shut out" from the sphere of social activity. Like its new inhabitant, this remote spot draws to itself the fantasies associated with the symbol Hester herself has become: "a mystic shadow of suspicion immediately attached itself to the spot" (106). Children would creep to the window and upon "discerning the scarlet letter on her breast, would scamper off, with a strange contagious fear" (106).
Hester's isolation is brought on and intensified by the mark society places upon her, a mark "more intolerable to a woman's heart than that which branded the brow of Cain" (108). For a while everyone reviles her--rich and poor, men and women, children and nature: "Every gesture, every word, and even the silence of those with whom she came in contact, implied, and often expressed, that she was banished and as much alone as if she inhabited another sphere ..." (108). Children shun her and throw stones; clergymen stop in the street to warn others against her sin; in their sermons they point to her as an example. The extreme literalists (the "vulgar" Hawthorne calls them) see the letter not as mere cloth, but rather, as a "terrific legend": "red-hot with infernal fire [which] ... could be seen glowing all alight, whenever Hester Prynne walked abroad in the night-time" (112).
All these different facets of the community read and understand Hester only in terms of the letter on her breast. Literally and figuratively, the letter becomes a simple badge of exclusion: "Man had marked this woman's sin by a scarlet letter, which had such potent and disastrous efficacy that no human sympathy could reach her, save it were sinful like herself" (113). Marked off from society by this univocal sign, Hester becomes an object of aversion and fascination, in which the community can contemplate without danger the evil that it fears. The letter functions like another instrument of discipline, the pillory, which so graphically announces its purpose: "to confine the human head in its tight grasp, and thus hold it up to the public gaze" (83). Hester's complex humanity--her beauty, her imagination, her sexuality, her intelligence--is reduced to a "badge of shame," a label whose message is easy for readers to seize--a plucked rose.
To restrict imagination and limit the possibilities of narrative--to create, in other words, a formal structure through which society could define and shape itself--was a principal aim of the Puritan codes. The power of this ideal, and its danger, are best depicted in the character of Dimmesdale, who is as revered by society as Hester is reviled. Learned, eloquent, handsome, and childlike, he displays a "freshness and fragrance, and dewy purity of thought, which ... affected people like the speech of an angel" (93). They perceive him as a paragon of holiness, a saint on earth. Hawthorne goes behind this adulation, however, and describes his limitations in terms that recall his own Puritan ancestors: Dimmesdale has "an order of mind that impelled itself powerfully along the track of a creed, and wore its passage continually deeper with the lapse of time. In no state of society would he have been what is called a man of liberal views; it would always be essential to his peace to feel the pressure of a faith about him, supporting, while it confined him within its iron framework" (145). Reliance on this framework ultimately prevents Dimmesdale from reading or stepping beyond the literalism that is, in its own way, as firmly inscribed in his heart as the letter "A" is on Hester's breast. To escape with Hester, Hawthorne notes, would have been to "escap[e] from the dungeon of his own heart--[to] breath[e] the wild, free atmosphere of an unredeemed, an unchristianized, lawless region" (245).
In the eyes of the community, Dimmesdale's limitation is a major source of strength. His eloquent and rational articulations reaffirm the creed his listeners want to hear and sustain the myths on which they depend for a sense of security. Two scenes effectively illustrate the exact parameters of his thought. In the first, the magistrates have threatened to remove Pearl from Hester's care, "for her temporal and eternal welfare" (133), after her childish response to a theological question--that she had not been made at all but had been "plucked by her mother off the bush of wild roses, that grew by the prison door" (134)--revealed the depravity of her three-year-old soul. Dimmesdale, rather than challenging the magistrates' logic, reconfigures it, suggesting that God has sent the child to Hester to work upon her heart. Intended as a blessing, a retribution, a torture, a pang, a sting, an ever recurring agony in the midst of joy, the child, he argues, would remind Hester of her fall and save her from further sin. "Let us leave them," he concludes, "as Providence hath seen fit to place them" (137).
In the second scene Chillingworth has responded to Dimmesdale's query about the origins of the black leafy herbs he has collected from the top of a grave, suggesting that they have "sprung out of a buried heart, to make manifest an unspoken crime" (152). Parrying the allusion to his secret guilt and shrinking from the invitation to reveal his soul, Dimmesdale counters that one can only know the secrets of the heart at the end of judgment day. Dimmesdale retreats, as before, to the abstractions of his "stifled study," evading the different, more complex truth of the here and now.
Dimmesdale passes on to his parishioners the same logic, the same defenses, and the same fears that characterize the community at large and allow them to judge and condemn Hester. But Dimmesdale also reveals the personal torment of a man who knows that the system is vulnerable. In his case, the personal conviction and the body politic which he represents as minister are threatened not from the outside but from within--by his own unorthodox urgings. Insofar as he hearkens to those urgings, Dimmesdale also hears the terrifying voice of the law. And rather than admit his own failure before the law, he, like the members of his community, projects that failure onto something outside the self--the witch Mistress Hibbins, who seems to materialize in response to his internal anxiety. Dimmesdale gives voice to this extreme anxiety after the meeting in the forest where Hester convinces him to leave with her. On his way back to town he wonders if, in fact, he has contracted with the Devil, feeling at one and the same time tempted by dreams of happiness and fearful of the "infectious poison" (237) of sin that has been "rapidly diffused throughout his moral system." In his moment of psychological crisis, he actually encounters Mistress Hibbins, the shadowy presence who haunts the entire community and serves as the repository of fears which it knows but will not acknowledge. Dimmesdale rushes to take refuge in his study, with the letter of God's word--with his Bible and its "rich old Hebrew, with Moses and the Prophets speaking to him, and God's voice through all" (238). Dimmesdale may return from the forest a less naive and wiser man, but he never gives up the structure of his orthodoxy. He is, finally, as committed to the letter of the law as are the magistrates and town gossips.
Hester, Pearl, and Mistress Hibbins are figures onto which society projects its own inner fears. Like words, like penalty letters even, these women becomes signs which gather to themselves extrinsic meanings. Thus to Hester are transferred the community's fears of its own transgression and violence. As the polluted enemy who will contaminate the rest, she must be isolated. By banishing her to its borders rather than destroying her as it would a sacrificial victim, the community hides from itself the knowledge of its own inherent violence. Each member's belief in the purity of the community, sustained by his faith in its system of law and morality, provides the security necessary to point his finger in accusation at the guilty one; but the reverse is also true--accusation sustains one's faith in the integrity of the system. Once one discovers, as young Goodman Brown does, that transgression no less than accusation is integral to the community, the sustaining structure of faith begins to crumble, and one has to come to terms with a different sort of self-knowledge. Rather than take this step, however, society tends to fix on its scapegoats to save the structure. One marks the Hester Prynnes of the world, and their children, like Pearl, grow up in the shadow of the letter, imagining that one day they will inherit the "A" themselves. The symbol that Hester is compelled to wear on her outer garment risks being internalized by the next generation and experienced as natural.
Counter-Spirits of the Law
Every judicial reading of the law is grounded, as Hawthorne's fiction illustrates, in a community's circumstances--in its myths, history, laws, and hopes for the future. The law, however, tends to conceal that fact, as Portia does in the Merchant of Venice, when she disguises herself in legal robes to decide Shylock's fate. Rather than reveal the individuality or bias of the judge who dons the robe, the law seeks to create an image of an impersonal, objective, principled arbiter, immune to personal preferences. The sign of the robe helps sustain the illusion of professional neutrality. To keep this image intact the Court also relies, as Dimmesdale does, on rhetorical forms which, like the robes that conceal the person, function as a rational and principled cover for the complex origins--both rational and irrational--of the law. Once constituted on the basis of past myths that have found their way into legal discourse, these forms can assume in time a mythic power which society uses to bolster its political and moral order.
Traces of this kind of mythic genesis are particularly evident in debates over constitutional interpretation. Criticizing the way the 1985 Supreme Court read the Constitution, Edwin Meese, for example, argued that the opinions of the Court were, "on the whole, more policy choices than articulations of constitutional principle."63 Rather than defer to the text and intention of the Constitution, the Court, he claimed, "inaccurate[ly] read the text of the Constitution" and "disregarded ... the Framers' intention that the state and local governments be a buffer against the centralizing tendencies of the national Leviathan" (Meese, 3). He argued for a return to principled reading which "could avoid ... the charge of incoherence" and "would not be tainted by ideological predilection" (Meese, 9). Through certain word choices Meese also evoked the sanctity of the Constitution: "We will endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgement ... Our guide will be the sanctity of the rule of law ... Only the sense in which the laws were drafted and passed provide a solid foundation for adjudication."
What is at stake here is a dream of continuity that relies on the rhetoric of first causes, forefathers, roots, foundations, and the sacred. Meese imagines an ongoing tradition traceable back to an original seed--a kind of textual Eden whose boundaries are clearly set: no "pouring of new meaning into old words" where the activist reader mutilates the integrity of the text. To speak of interpreting the Constitution "without departing from the literal import of the words" (Meese quoting Joseph Story) is to envision a world in which words have fixed beginnings and meanings that remain stable over time (10). The questionable premise is that there is such a thing as a complete, coherent text whose intentions we have access to.
This dream of coherence, continuity, and stability informs in different ways the thinking of many judges and operates on the reader in much the same way that the letter "A" operates on members of the Puritan community. To refer to the sanctity of law, to roots, to Judeo-Christian principles, to "liberties deeply rooted," "fundamental rights embedded," or "bedrock principle underlying" is to call up traces of a national and moral past which appears to lend impersonal force to partisan convictions.64 Consciously or unconsciously minds are opened or closed by such references.
Both law and fiction, however, give strong voice to the impulses that resist reification. Judges like Blackmun, Douglas, and Brennan rely on "principle" and "history" to support their readings of the Constitution, but they tend to ask, as Brennan does, what do the words mean in our time? In his opinion in Griswold v. Connecticut Justice Douglas justifies a reading that extends the reach of the first amendment to include rights (relating to birth control) not expressly stated in the Constitution. The Bill of Rights, he argues, includes "penumbral" or "peripheral" rights which create a "zone of privacy"--a "sacred" area protected from invasion by the government.65 In his dissent in Bowers v. Hardwick Justice Blackmun resists blind imitation of the past, arguing that "it is revolting to have no better reason for a rule than that it was laid down in the time of Henry IV."66 He invests "principles" and "underlying values" with a cultural and legal history that allows him to shift the issue away from homosexuality to privacy, thus creating a new conceptual framework for subsequent thinking about this issue. The "principle" that his Constitution embodies, he explains, is a "promise," that "a certain private sphere of individual liberty will be kept beyond the reach of government."67 Brennan's dissents often describe the Constitution as a living, evolving entity whose full meaning cannot be revealed either by doctrinal precedent or by evidence of original intent: "The Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers."68 Douglas, Blackmun, and Brennan, unlike Meese, see the Constitution as an open rather than a closed text and emphasize its transformative purpose.
Activist and non-activist judges often rely on the same rhetoric, but the activist's view of language, skeptical of first causes and responsive to change, leads to very different conclusions. In Hawthorne's world, Brennan's opponents might have argued that his readings were diabolical, contrary to revealed law and threatening to the fabric of society. In The Scarlet Letter itself, the vitalizing, transformative threat to orthodoxy is embodied in the figure of Pearl, who recalls Hawthorne's initial inspiration: the rose growing by the prison door. The fruit of a paradoxical love, Pearl is the flower that refuses to be plucked and reified. For some she is the thorn who, in Chillingworth's disparaging words, knows "no law, nor reverence for authority, no regard for human ordinances or opinions, right or wrong ..." (154). What Chillingworth cannot, or will not, see in Pearl is what the reader comes to admire most: her wild, native imagination which, like Hawthorne's, "communicated itself to a thousand objects, as a torch kindles a flame" (118). Without playmates she creates her own "visionary throng"; every object--sticks, rags, flowers--is transformed; solemn pine trees become Puritan elders, ugly weeds their children whom Pearl would smite and uproot. But the letter on her mother's breast, elaborately embroidered with flourishes of gold thread, is a particular source of fascination. Like all curious readers confronted with an enigmatic sign, she incessantly questions the letter. Untutored in the "correct" social reading of the letter, she weaves her own fantasy of meaning: "As the last touch to her mermaid's garb, Pearl took some eel grass, and imitated, as best she could, on her bosom the decoration with which she was so familiar on her mother's. A letter,--the letter A,--but freshly green, instead of scarlet" (195). For Pearl the letter is a kind of hieroglyphic, subject to her revisionary imagination. Hester allows the child to read on her own rather than impose on her daughter what society had imposed on her--a predigested formula for behavior. And Pearl's own behavior--the wild, capricious forms into which she throws herself--is a mystery to those around her--a "living hieroglyphic" (223) of the secret her parents sought to hide.
For judges too the law is a letter, a hieroglyphic, subject to revision and manipulation. A plain meaning theory functions to reduce the play of meaning for purposes of social control. A notion like Douglas's zone of privacy enlarges the frame for the play of meaning. The frame is still there, but subject to transformation (even as Pearl's "A" is still there, though woven with green leaves). When that frame threatens to disintegrate, readers can become anxious. When Hester removes her letter from her breast, Pearl is disconcerted. How far can one push the edges of the frame without dismantling something essential? How far can one protect private identity and keep in tact a sense of social order? These questions, if they can be answered at all, cannot be answered in the abstract. They can only be broached within the cultural contexts in which they occur. Fiction allows us to see multiple aspects of that context; the law compels us to see in it bits and pieces.
No one, however, has complete control over this process. Fictional narrators make us amply aware of this fact. Melville, in Billy Budd, for example, tells us explicitly that the story has no real end. Budd dies, but that is not the end. There are the "ragged edges"--the brief news report giving us the party line, and then the poem, and our own re-readings. In Hawthorne there is no single rose to be plucked. The reader is left to choose among various theories. The tale ends with Dimmesdale's final confession, the image of his body sinking down on the scaffold, his head held against Hester's breast. A multitude witnesses this deposition, watches Pearl kiss her father's lips and weep, hears Hester's final hope and Arthur's confirmation of the painful redemptive process, and his last farewell. "That final word came forth with the minister's expiring breath. The multitude, silent till then, broke out in a strange, deep voice of awe and wonder, which could not as yet find utterance, save in this murmur that rolled so heavily after the departed spirit" (269). The deep voice which could not yet find words points to the impossibility of a single message. The spectators can reach no agreement about what they have seen on Dimmesdale's breast. Those who claim to have seen a scarlet letter argue that the stigma was self-inflicted, or that it was produced by Chillingworth through the use of magic and poisonous drugs, or that it was an organic effect of the "ever active tooth of remorse gnawing from the inmost heart outward" (270). Others swear there was no mark at all and that he never acknowledged in his last words any connection with Hester's guilt.
Despite the sense of an ending, the reader is left, like the characters at the end, seeking answers or choosing among possible accounts of what had been seen on the scaffold. The tale gathers itself for a moment into a coherent image of Dimmesdale dying on the scaffold, in Hester's arms, a multitude standing by in awe. But this picture dissolves into fragments, ambiguities, discrete letters, waiting to be discovered in the dark corner of the attic. And we might argue that this disintegration is motivated by the force of violation which constantly threatens to destabilize any myth. Fiction is constantly dissolving its frames so that we do not become too comfortable with the plucked rose. The law needs to keep the frame in tact. And how it does so is the burden of all constitutional interpretation.
1. Nathaniel Hawthorne, The Scarlet Letter (New York: Penguin Books, 1983), 76. All subsequent citations are taken from this edition.
2. Oliver Wendell Holmes, The Common Law (Boston: Little Brown and Company, 1946), 1.
3. John Winthrop, "A Model of Christian Charity," in The American Puritans: Their Prose and Poetry, ed. Perry Miller (New York: Anchor Books, 1956) p. 84.
4. Robert Cover, "Nomos and Narrative," Harvard Law Review 97 (1983): 4-5.
5. Ibid., p. 42.
6. See also Robert Cover, "Folktales of Justice: Tales of Jurisdiction," Capital University Law Review, 14 (1985): 179.
7. In addition to the legal codes from individual societies, two studies are particularly useful: Daniel Murray, "Ancient Laws on Adultery--A Synopsis," Journal of Family Law, 1 (1961). Murray's summary includes a brief look at the early laws in the Middle East, the Far East, Greece, Rome, the British Isles, and Germany. Jeremy D. Weinstein, "Adultery, Law, and the State: A History" Hastings Law Journal, 38 (1986) focuses primarily on English and American law, beginning with early English law just before 600 A.D. and continuing through early common law in the thirteenth century to developments that have influenced current treatment of adultery statutes in the United States.
8. Murray, "Ancient Laws on Adultery," 89; Weinstein, "Adultery, Law, and the State," 195-96.
9. Ibid, 89.
10. Tony Tanner, Adultery in the Novel (1979), 16.
11. As Richard Weisberg points out in Poethics And Other Strategies of Law and Literature (New York: Columbia University Press, 1992), manipulation of bonds is at the center of the judicial and social plot: all bonds in the play are implicitly on trial, including those between young lovers, man and wife, parent and child, lenders and borrowers, master and servant, man and his religion. One might also argue that violation of certain bonds is a necessary component of psychological growth; that Portia and Jessica, for instance, have to learn how to violate their fathers in order to remake themselves in a new union with their prospective bridegrooms; that in the final act Shakespeare brings together the new generation to establish a new society in which marriages are celebrated and the festival spirit of comedy reigns. But Shakespeare's text is haunted by a sense of love's fragility and the dangers of transgression. I would agree in part with Weisberg's view that Portia "reinvigorates Shylock's Jewish ethics" by standing firm on commitments and promises (94); that Bassanio and his friends are equivocal towards verbal obligations; that Shylock remains unequivocally committed to his race, his marriage, and his bond. But I would hesitate to draw so stark a line between oath keepers and oath breakers. Verbal wit and slippage of language are the essence of comedy and one might argue that rather than "replace" comedy on the island of Belmont (102), commitment operates through it.
12. In suggesting that "Shylock is gone but not forgotten" (Weisberg, 104)--that his legalistic mode lives on--Weisberg invites us to ponder "whether his values are not somehow better, more direct, more forceful" than those looser and easier values of the Venetians. This legalistic mode, present throughout the play, is, as we know, the one Portia uses against Shylock in the trial. One might also argue that it is just this sort of exaggerated formalism--together with its rhetorical limitations so ironically dramatized, for example, by Aragon's and Morocco's suit to Portia--that Shakespeare and Portia turn against the character who epitomizes it.
13. Oliver Wendell Holmes, The Common Law (Cambridge: Belknap Press of Harvard University Press, 1963), 6.
14. Ibid., 13.
15. Hammurabi, The Code of Hammurabi, Section 129, trans. Theophile J. Meek. In James B. Pritchard, ed., Ancient Near Eastern Texts Relating to the Old Testament, 3d ed., (Princeton: Princeton University Press, 1969), 171.
16. See Weinstein, 198. This sort of "peaceful solution," called "composition," flourished, according to Weinstein, in primitive and later archaic law. The wrongdoer voluntarily offered himself up or agreed to accept some form of public humiliation.
17. Weinstein, 195. Weinstein is building on an argument put forth by E. Adamson Hoebel in The Law of Primitive Man: A Study in Comparative Legal Dynamics (Cambridge: Harvard University Press, 1954): "The really significant shift ... in the development of primitive law is [that] ... [p]rivilege-rights and responsibility for the maintenance of the legal norms are transferred from the individual and his kinship group to the agents of the body politic as a social entity" (329).
18. Weinstein, 199.
19. In The Law of Primitive Man Hoebel warns against setting up too stark a contrast between a primitive society, supposedly marked by retaliation and blood revenge, and modern societies which have substituted damages for vengeance: "there is an error in the conventional evolutionary idea. It lies in the notion that there ever was a time when torts were not emendable or a time when blood feud prevailed unchecked ... the societies of man have from the outset wrestled with the problem of maintaining internal peace and harmony" (329).
20. See A. S. Diamond, Primitive Law Past and Present (1971), 57.
21. These laws can be found in F. L. Attenborough, The Laws of the Earliest English Kings (New York: Russell & Russell, Inc., 1922). See especially sections 33ff.
22. Weinstein, 203-5.
23. See sections 10-16 in the Dooms.
24. "Wergeld" means the value set on a freeman's life. It literally means "man's price." See Weinstein, footnote 71, and F. Pollock & F. Maitland, The History of English Law (2d ed. 1898), 47.
25. I can only suggest a few reasons here. The culture itself may not have been particularly stable. In 597 Augustine, under a mission from Pope Gregory the Great, arrived in England and converted the country to Christianity. It is not clear whether the Dooms, which codified pre-existing law and added fresh legislation, were promulgated by a pagan or a Christian king. Some argue that they were written after Aethelberht converted to Christianity in the first years of the seventh century, others that they were written over several years, beginning as early as 565 when Aethelberht became king. (See Weinstein, 204 and accompanying notes.)
Looking at the laws of different cultures as well as those of England, we find extraordinary variety in both the concept and treatment of adultery. With the Ashanti, for example, adultery with any of the wives of a chief was considered an offense against the royal ancestors. The offender was tampering with women sacred to the ancestors, and the penalty was death, in a hideous form: a dance of death in which the victim was dissected into small bits (see Hoebel, 240). The Eskimos, by contrast, were reputed to lend and exchange their wives with good will. But if a man had intercourse with a married woman without her husband's consent, it was viewed as a challenge to his position as a man. Outright appropriation of another man's wife could result in homicide (see Hoebel, 83).
26. See Attenborough, 62-93, for the text of Alfred's Code. The quoted passage is from cap. 42, section 7. See also Weinstein, 207-208, and Murray, 98-99. Murray notes that the Code of Hammurabi, Mosaic law, and Roman law also emphasized the importance of the husband's discovering the woman "within closed doors and under the same blanket."
27. Texas Penal Code, art. 1220 (Vernon 1925).
28. See Weinstein, 229ff., for a more extensive discussion of the scattered statutes that permitted husbands and fathers, in a variety of circumstances, to slay marital interlopers. A section of one opinion handed down in Georgia by J. Lumpkin in 1860 (Biggs v. State, 29 Ga. 723), is worth quoting: "Is it not their [the jury's] right to determine whether, in reason or justice, it is not as justifiable in the sight of Heaven and earth, to slay the murderer of the peace and respectability of a family, as one who forcibly attacks habitation and property? What is the annihilation of houses or chattels by fire and faggot, compared with the destruction of female innocence; robbing woman of that priceless jewel, which leaves her a blasted ruin, with the mournful motto inscribed upon its frontals, 'thy glory is departed'? Our sacked habitations may be rebuilt, but who shall repair this moral desolation?"
29. Alfred's Code, cap. 10.
30. Alfred's Code, cap. 42, section 7.
31. The Central Codes of Edward and Aethelstan can be found in F. L. Attenborough, The Laws of the Earliest English Kings, 114-17, 126-43. The Codes of Edgar, Aethelred, and Cnut may be found in A. Robertson, The Laws of the Kings of England From Edmund To Henry I , 16-19, 24-29, 52-71, 174-219.
32. II Cnut, cap. 53.
33. Thus the laws of William I and of Henry I in the late eleventh and early twelfth centuries echo the laws of Anglo-Saxon kings, which permitted a husband to kill his rival if the latter is found alone with his wife behind closed doors. See Leis Willelme, cap. 35 and Leges Henrici Primi, 82, section 8, in Robertson, The Laws of the Kings of England From Edmund to Henry I.
34. Weinstein, 210.
35. Willelmi Articuli Retracti, Sec. 17, found in Robertson, The Laws of the Kings of England, 251.
36. Murray, 100. See also the Laws of William I, Sec. 35, in Robertson, 269.
37. Weinstein, 211.
38. F. Pollock & F. Maitland, The History of English Law, 2d ed. (1898), 367.
39. Common law remedies gradually developed under the umbrella of such categories as trespassing, theft, breach of the king's peace, loss of consortium, criminal conversation, enticement, and alienation of affections. See Weinstein, 212-25.
40. The law punishing adultery with death was passed by the Court of Assistants in October 1631 (Massachusetts Colony Records, I., 91). The question of enforcement came up in Boston on June 6, 1637 (Ibid., 197): two men and one woman were jailed and in March 1638 they were sentenced to be whipped and banished (Ibid., 225).
41. "The Capitall Lawes of New-England, as they stand now in force in the Common-Wealth, 1641, 1642," in The Laws and Liberties of Massachusetts, 1641-1691, Vol. I, comp. John D. Cushing (Wilmington: Scholarly Resources Inc., 1976).
42. It is interesting to note that the Puritans have altered the order in the Decalogue by working in witchcraft between the first commandment, which forbids false gods, and the second, which forbids blasphemy. Compare Exodus 20.
43. In England before 1650 adultery was a violation of Mosaic Code but was not punished as a crime. This posed a problem for the colonists who based their civil and criminal code on the laws of England. Offenses easily recognized as violations of English law were relatively easy to deal with. Those, like adultery, which were violations of Mosaic law but not ranked as penal offenses in England were more troublesome. Despite its statutory silence on the question of adultery, however, Parliament, from Henry VIII to Charles I, continued to worry about it and, after a century of debate, passed the Act of 1650 classing adultery and incest as felonies. (This unpopular law was not renewed.) The same spirit which moved Parliament to pass the 1650 Act pushed colonial lawmakers to pass their own law against adultery in October 1631. In The Colonial Laws of Massachusetts (1672; repr., Boston, 1890), 4ff. William Whitmore gives an account of the tension between the people, who pressed for clear articulation of the laws, and the magistrates who resisted the passage of a law repugnant to the laws of England.
44. The second section of the Act of 1694 reads as follows: "And if any man shall commit adultery, the man and woman that shall be convicted of such crime before their Majesties' justices of assize and general gaol delivery, shall be set upon the gallows by the space of an hour, with a rope about their neck, and the other end cast over the gallows; and in the way from thence to the common gaol shall be severely whipped, not exceeding forty stripes each. Also every person and persons so offending shall forever after wear a capital A, of two inches long, and proportionate bigness, cut out in cloth of a contrary color to their clothes, and sewed upon their upper garments, on the outside of their arm, or on their back, in open view. And if any person or persons, having been convicted and sentenced for such offense, shall at any time be found without their letter so worn, during their abode in this province, they shall, by warrant from a justice of the peace, be forthwith apprehended, and ordered to be publicly whipped, not exceeding fifteen stripes, and so from time to time, toties quoties." Reproduced in the Ancient Charters, 1815.
45. Andrew McFarland Davis, The Law of Adultery and Ignominious Punishments (Worcester, Mass.: Press of Charles Hamilton, 1895). After coming across "certain papers connected with a criminal case, in which the culprit was, in 1743, sentenced to wear a letter sewed upon his outer garment," and taking account of "the great popularity of Hawthorne's Scarlet Letter." Davis became interested in finding out "how early in the history of the Colony, or how late in the days of the Province, sentences of this character were imposed" (2). His paper, delivered to the American Antiquarian Society on April 24, 1895, provides the best account I have found of the letter penalty in the colonies. It traces legislation in the Massachusetts Bay Colony relative to adultery, describes various kinds of letter penalties, and looks briefly at related forms of punishment in seventeenth century England. Davis was unable to confirm the origins of letter penalty, finding no mention of it in the statutes, in the form books used by Justices, in ecclesiastical law, or in books devoted to "curious punishments." He did find evidence, however, of the use of labels which were often placed in the hat of the offender (22-26).
46. See The Colonial Laws of Massachusetts (1672; repr., Boston, 1890): on March 5, 1644 a man and woman guilty of adultery were sentenced to death. In his Journal of 1644 Winthrop mentions the death of Mary Latham who had committed adultery with several young men.
47. On March 12, 1638, in Newton, two men and one woman were sentenced to be whipped and banished for adultery (Massachusetts Colony Records, I, 225); on September 7, 1641, a Quarter Court sentenced an adulterous man to be set on the gallows with a rope about his neck and then sent to prison (Ibid., I, 335); on September 8, 1642, in Boston, the Court received a message requesting that an Indian be punished for attempting to ravish a man's wife (Ibid., II, 23); in 1648 a woman was acquitted on two charges of adultery but whipped for "evil adulterous behavior and swearing" (Ibid., II, 243); in 1654 a woman was accused of adultery but not found guilty (Ibid., IV, pt. I, 193). See Davis, 8-9 and 14-15.
48. In 1639 a woman found guilty of adultery was sentenced to be whipped and to wear a badge on her left sleeve. If she was found abroad without it, she was to be burned in the face with a hot iron. See Plymouth Colony Records, Laws, 1623-1682, 132. In 1641 a man and a woman were sentenced to be whipped at the public post and to wear two letters, "A D," on the outside of their uppermost garment. Ibid., II, 28.
49. Plymouth Colony Records, Laws, 1623-1682, 95.
50. G. Harrison Orians in "Hawthorne and Puritan Punishments" (College English, 13 (May 1952): 424-32) provides a summary of these and other punishments, focusing on the ones Hawthorne refers to in his tales ("Endicott and the Red Cross," "Main Street," "The Mayppole of Merrymount," "The Gentle Boy," The Scarlet Letter). The two most common forms of punishment in the colonies were the stocks and the whipping post. Loiterers, tipplers, disorderly soldiers, and persons guilty of profane swearing, for example, were placed in the stocks; drunkards, fornicators, vagabonds, defamers of magistrates, blasphemers, and disobedient children were whipped; the pillory could be substituted for some of these offenses, including forgery and blasphemy, the cleft-stick for calumny, blasphemy, defamation of magistrates, railing and reviling. For more detailed information on the use of these punishments in the colonies one may consult the Massachusetts Colony Records; Colony Records for individual towns, including Boston, Plymouth, and Salem; Felt's Annals of Salem ; Cotton Mather's Magnalia Christi Americana and The Faithful Monitor (1704); Thomas Hutchinson's History of Massachusetts Bay (1764); John Winthrop's Journals; William Sewell's History of the Quakers ; and Ancient Charters and Colony Laws (1815). Hawthorne is known to have read widely in these and other sources, particularly during the period biographers call "the solitary years"--1835-47. In addition, he received from two friends, James T. Fields and W. D. Ticknor, a set of the State Trials which he acknowledged "held him spellbound" since 1832. Edmond Cahn, Professor of Law at New York University, reported in a letter to The Times Literary Supplement 7 (London: October 1955, 589) that he was the current owner of Hawthorne's set of the State Trials.
51. The Massachusetts Colony Records, I, Felt's Annals, Josselyn's Account of Two Voyages to New England , and the Plymouth Colony Records, III, provide numerous examples of the use of letters and placards in the colonies during the mid-seventeenth century. A selective list follows: on September 3, 1633, a man was sentenced to pay a fine and wear for a year a white sheet of paper on his back denouncing him as a "DRUNKARD" (Massachusetts Colony Records, I, 107); on March 4, 1634, Robert Coles was sentenced to wear around his neck the letter "D," cut from red cloth and set on white (Ibid., I, 112); on April 5, 1636, William Perkins was sentenced to wear for an hour a white sheet of paper marked with the letter "D" (Ibid., I, 172); on March 5, 1639, a man was whipped and required to wear the letter "V" on his garment, for lewdness (Ibid., I, 248); on September 3, 1639, a thief was sentenced to wear the letter "T" on his garment (Ibid., I, 268); on December 3, 1639, two women were sentenced to wear a paper indicating their offense (light behavior) (Ibid., I, 284); on March 29, 1681, two women were to be imprisoned a night for incest, whipped or fined, and sentenced to stand in the Salem Meeting House with a paper on their head indicating the crime (Felt's Annals, 270); in his Two Voyages Josselyn reports that an English woman, guilty of fornication with an Indian, was required to wear an Indian, cut out of red cloth, sewn on her right arm for a year (178). See also Davis, 18-21, who lists these and other instances. And see note 48 above for the account of the three adulterers sentenced in Plymouth Colony in 1639 and 1641 to wear letters for their offense; and note 45 for Davis's reference to Andrew Flemming who was convicted of incest in 1743 in Groton and sentenced to stand one hour on the gallows with a rope around his neck, to be whipped 40 stripes, and to wear the letter "I" for life.
52. Davis, 22.
53. Lynda E. Boose, "Scolding Brides and Bridling Scolds: Taming the Woman's Unruly Member," Shakespeare Quarterly 41 (1991): 184.
54. Ibid., 186, quoting from William Sheppard (or Shepherd), A Grand Abridgment of the Common and Statute Law of England (London, 1675).
55. Ibid., 186, quoting from Church of England, Certain Sermons or Homilies (London: Society for Promoting Christian Knowledge, 1908), 154.
56. Ibid., 189.
57. Drawing on recent historical scholarship, Boose notes a dramatic rise during the years 1560-1640 in those crimes labelled "interpersonal disputes," particularly in those involving sexual misconduct, scolding, slander, physical assault, defamation, and marital relations. An increased concern about social order gave rise, she suggests, to harsher criminal statutes "directed primarily against vagrants and female disorder" (195). She points out that during these years "an obsessive energy was invested in exerting control over the unruly woman--the woman who was exercising either her sexuality or her tongue under her own control rather than under the rule of a man. As illogical as it may initially seem, the two crimes--being a scold and being a so-called whore--were frequently conflated" (195). See also Patricia Parker, Literary Fat Ladies: Rhetoric, Gender, Property (London and New York: Methuen, 1987).
58. Compare the law forbidding a man to sleep with a married woman in Deuteronomy 22:22: "If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel." Verses 23-29 enumerate additional laws governing sexual behavior between men and woman.
59. The law against witchcraft, which figures so prominently among the capital laws of New England, is listed in the Old Testament among "divers laws" rather than among the offenses presented in the Decalogue. We find it mentioned for example in Exodus 22:18 ("Thou shalt not suffer a witch to live") and in Deuteronomy 18:10-11 among the abominations that God will drive out ("There shall not be found among you any one that maketh his son or his daughter to pass through the fire, or that useth divination, or an observer of times, or an enchanter, or a witch. Or a charmer, or a consulter with familiar spirits, or a wizard, or a necromancer").
60. It is not within the scope of this paper to explore evidence of these links in England, France, and Germany. Limiting ourselves to early New England, we find that the devil was more often, though not exclusively, associated with women, and that trials against witches ended up reinforcing existing social boundaries and traditional morals. See Carol F. Karlson, The Devil in the Shape of a Woman: Witchcraft in Colonial New England (New York: W. W. Norton & Company, 1987), which examines the rise and fall of witchcraft in seventeenth-century New England and includes a chapter on the role of witchcraft in shaping and maintaining the structure of Puritan society. For another study of witchcraft in New England at this time see also John Putnam Demos, Entertaining Satan: Witchcraft and the Culture of Early New England (New York: Oxford University Press, 1982).
61. Rene Girard, Violence and the Sacred, trans. Patrick Gregory (Baltimore and London: The Johns Hopkins University Press, 1977), 33-36.
62. Ibid ... 8. See also the chapter entitled "Oedipus and the Surrogate Victim," 68-88, for Girard's discussion of how the Thebans displaced their own violent impulses onto the person of Oedipus, who becomes the repository of the community's ills and, once sacrificed, the prime example of the human scapegoat.
63. Edwin Meese III, Speech to D.C. Chapter of the Federalist Society July 9, 1985, Washington D.C., reprinted in The Great Debate: Interpreting Our Written Constitution (Washington, D.C.: Federalist Soc., 1986), 9; Edwin Meese, "Address," in Sanford Levinson and Steven Mailloux, eds., Interpreting Law and Literature: A Hermeneutic Reader (Evanston, Ill.: Northwestern Univ. Press, 1988), 25.
64. For example, in Texas v. Johnson, Chief Justice Rehnquist defines the symbolic nature of the flag with reference to its role in particular moments in American history. He argues that the flag, because it has embodied more than 200 years of our history, "is not simply another 'idea' or 'point of view' competing for recognition in the market place of ideas." It is a unique symbol "embodying our nation," "a uniqueness that justifies a governmental prohibition against flagburning"; it is regarded "by millions and millions ... with an almost mystical reverence." The flag is to be revered as vigorously as Hester's letter is to be reviled, and Rehnquist's conclusion could apply to both: "Surely one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority of people--whether it be murder, embezzlement, pollution, or flag burning." See Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533 (1989).
Justice White in Bowers v. Hardwick argues that the liberties "deeply rooted in this nation's history" do not extend a fundamental right to homosexuals to engage in acts of consensual sodomy. "Proscriptions against that conduct have ancient roots." In his concurring opinion Chief Justice Burger expands this argument and, citing Roman, English, and American law, claims that homosexual conduct has been subject to state intervention "throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards." In his short one-paragraph statement he takes time to quote Blackstone's description of "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and a "crime not fit to be named" (4 W. Blackstone, Commentaries [1765-69], 215). Burger concludes: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." See Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841 (1986).
Burger, like Hawthorne's Puritan magistrates, is relying on the notion that sodomy represents a coherent, identifiable, and stable category of behavior which can be traced back to the beginnings of Western civilization. The Court refused to see beyond the letter "S" and to address Hardwick's larger concern that the statute violated his rights, not as a gay man, but as a person (See "Brief for Respondent in Bowers v. Hardwick," in Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law: 1985 Term Supplement, Philip B. Kurland and Gerhard Casper, eds. (Frederick, Md.: University Publications of America, 1987), 404, 411. A "person" cannot be defined in terms of a particular act; for as Michael Foucault has argued, every act implies "a past, a case history, a childhood, ... a type of life, a life form, ... a morphology, ... a species." (See Foucault, I The History of Sexuality, trans. Robert Hurley (New York: Vintage Books, 1980), 43.)
65. Griswold v. Connecticut, 381 U.S. 479 (1965), at 484.
66. Bowers v. Hardwick, 478 U.S. at 199. Blackmun was joined by Justices Brennan, Marshall, and Stevens.
67. Ibid., at 203.
68. Marsh v. Chambers, 463 U.S. 783 (1983) at 816. See also Brennan's speech at The Text and Teaching Symposium, held at Georgetown University, October 12, 1985, Washington, D.C. (reprinted in The Great Debate, and in Levinson and Mailloux): "[T]he genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." p. 17.