Cold-Blooded and High-Minded Murder: The “Case” of Othello

Richard Strier* and Richard H. McAdams**

FIRST DRAFT (2/2/14)

1: The Legal Framing of the Play

Legal terminology pervades Othello. Right at the beginning, when

Iago complains to Roderigo that Othello made Cassio his lieutenant, Iago

says that three of his men went to Othello “[i]n personal suit to make me

his lieutenant” (1.1.8), but Othello “Nonsuit[ed] my mediators” (1.1.15).

A nonsuit was a legal judgment against a plaintiff for failing to establish a

prima facie case. Iago tells Othello he should not be obligated to reveal

all his thoughts, arguing:

Who has a breast so pure

But some uncleanly apprehensions

Keep leets and law-days and in session sit

With meditations lawful? (3.3.141-44)

Leets were “special courts, held by some lords of the manor once or

twice a year.”1

* Frank L. Sulzberger Distinguished Service Professor Emeritus, University of Chicago Department of English and Divinity School.** Bernard D. Meltzer Professor and Aaron Director Research Professor, University of Chicago Law School.

Desdemona promises to present Cassio’s “suit” to Othello, saying:

“For thy solicitor shall rather die / Than give thy cause away”

(3.3.27–28). English lawyers are either barristers or “solicitors.” And

Desdemona tells Emilia that there is an innocent explanation for

Othello’s strange mood:

Arraigning his unkindness with my soul,

But now I find I had suborned the witness

And he’s indicted falsely. (3.4.153–55)

In addition to explicitly legal terms, other terms that can carry both

legal and non-legal meanings appear in context to invoke, at least in

part, their legal meaning. For example, in the quotation just given,

Desdemona uses “witness” in the legal sense of one whose false

testimony might be suborned; we observe another legalistic use of

“witness” below. Also as quoted above, when Iago refers to a nonsuit, he

refers to his supporters going “in personal suit” to make him a lieutenant,

while Desdemona refers to herself as Cassio’s lawyer (solicitor) for his

“suit” for reinstatement. A “suit” can refer to any kind of appeal, but

obviously includes a lawsuit; courts at the time would sometimes use

“suitors” to refer to those bringing the lawsuit.2 Combined, suit and suitor

appear fourteen times in the play; given the above uses, they can all be

read as invoking the legal sense of the term. “Proof” is obviously central

2

to legal cases and we discuss it below. Overall, the term appears ten

times. And then there is the crucial word “cause” and the related word

“action.” A cause of action was the basis of a valid lawsuit. Lawyers and

courts spoke of whether a plaintiff’s claim was or was not a valid cause of

action. Various characters in the play invoke this meaning, as we shall

see.

Beyond particular words, Othello draws our attention to law with

the contrast between two critical scenes, one in which something akin to

legal process allows Othello to refute a false charge (Act 1, Scene 3) and

the other in which the lack of process prevents Desdemona from refuting

a false charge (Act 5, Scene 2).3 When Branbantio brings Othello before

the Duke and council to accuse him of taking her from his possession by

the use of witchcraft or drugs – serious English crimes at the time – the

scene unfolds much like a legal proceeding. Initially, after Brabantio has

Othello (essentially) arrested, Othello asks “Where will you that I go / To

answer this your charge?” Brabantio answers: “To prison, till fit time / Of law

and course of direct session / Call thee to answer” 1.2.84-86. Brabantio expresses optimism

at the thought of presenting his charge to the Duke and council, saying, “mine’s not an idle

cause” (1.2.95, emphasis added). The Duke tells Brabantio that, if his charges

are true, he may “read in the letter” from “the bloody book of law,” and

that he may do so, “though our proper son / Stood in your action”

(1.3.70-71). Othello refers to himself as speaking poorly for “my cause”

(1.3.89). When Brabantio then gives a speech stating his charges against

3

Othello, the Duke says “To vouch this is no proof / without more certain

or more overt test” (1.3.107-108). At Othello’s request, the Duke sends

for Desdemona to serve as a “witness” (1.3.171) before he will pass “a

sentence” (1.3.120). This law-like process exonerates Othello from a false

charge.

In contrast, Desdemona receives no such process when she is

accused of adultery, a legal “cause” that was an ecclesiastical crime and

a basis for legal separation.4 In Act 3, Iago and Desdemona each refer to

Othello’s suspicion of Desdemona as a “cause,” (3.3.414, 3.4.158).

Elsewhere, the characters speak of adultery in legal terms. In Act 4,

Desdemona denies being a “strumpet” by telling Othello that she

preserved her “vessel” from any “hated foul unlawful touch” (4.2.86;

emphasis added). Again in act 5, when Othello charges her with being

“used” by Cassio, she clarifies by asking, “How? unlawfully?” and Othello

answers “Ay” (5.2.70). Even Rodrigo also refers to his “unlawful”

solicitation of Desdemona (4.2.201). Yet Othello denies Desdemona the

kind of process by which he refuted a false charge, not accusing her or

presenting the evidence until he is about to kill her, not having an

impartial tribunal weigh the evidence, and not letting her call a witness.

In short, Othello is not overtly a “legal” play, but it is permeated by

legal terminology and legal concerns. We shall therefore use law to

interpret some of the play’s central action.

4

2: The Anatomy of a Killing

Three out of Shakespeare’s four “mature” or “great” tragedies

involve murders. But it matters a great deal not only who commits them

but where, in the structure of the play, the murder occurs. In Hamlet, the

murderer is not the protagonist and the plot-determining murder (as

opposed to other killings) takes place before the play begins -- though

through the bizarre narrative supposedly by the victim, we have

something like a sense of having witnessed it.5 In Othello and Macbeth,

the protagonists are the murderers, but in Macbeth, the plot-determining

murder (there are many others) takes place early in the second Act, and

though we see a good deal of the preparation for it, and a great deal of

the aftermath of it, the murder itself is not directly dramatized. Only in

Othello is the crucial murder dramatized on stage, and only in Othello is it

the culmination of the action, occurring at the beginning of the final

scene of the play (Act 5, scene 2).6 This section of the paper examines

how the murder is discussed and then presented in the play.

The decision as to how the murder of Desdemona was going to be

presented was clearly a major one for Shakespeare, and one that he

lavished a great deal of effort on. His decision about this, as we shall

see, was quite remarkable. But what must have been clear to him from

the outset is that he could not follow his source text with regard to this.

The narrative source for the play is story 7 of the Third Decade of Giraldi

5

Cinthio’s Hecatommithi [A Hundred-ten Stories] (1565; French

translation, 1584). Up until the murder of Disdemona/Desdemona,

Shakespeare follows the Cinthio tale fairly closely, but the murders in the

two works are utterly different. In Cinthio, the (unnamed) Moor and the

(unnamed) Ensign have some discussion about how to kill Disdemona

(poison or dagger), but the Ensign comes up with a plan that, as he tells 1NOTES

? Ibid., 217n.2 See, e.g., The Earl of Lincoln v. Fysher, 78 E.R. 824 (1594); Pill v.

Towers, 78 E.R. 1021 (1599).3 See Richard McAdams, ”Vengeance, Complicity, and Criminal Law in

Othello,” in Shakespeare and the Law: A Conversation among Disciplines

and Professions, 133-139.4 See Richard Cosin, Apologie for Sundrie Proceedings by Jurisdiction

Ecclesiastical (London,

1593), part 1, chap. 2, p. 20; B. J. Sokol and Mary Sokol, Shakespeare,

Law, and Marriage (Cambridge: Cambridge University Press, 2003), 141–

42. Adultery made possible divorce a mensa et thoro, which was not a

complete legal termination of the marriage as the parties were not free

to remarry.5 Critics have been oddly unwilling to acknowledge the narratological

weirdness of the supposed ghost of Hamlet Senior’s narrative of his

death. How does one make sense of an account someone gives of what

happened (other than his dreams) when he was sound asleep? The

6

the Moor, “will satisfy you and that nobody will suspect.”7 The idea is to

“beat Disdemona with a stocking filled with sand” and then arrange for

the ceiling of the bedroom to fall on her, so that it looks as if she was

killed by a falling rafter. This is the plan that is executed, though the

Ensign does all the actual dirty work; he is the one who beats her to

death with the stuffed stocking. The plan succeeds; the murder is never

discovered, though in the final pages of the story both the Moor and

finally the Ensign come to bad ends (the Moor, after being exiled, is killed

by Disdemona’s relatives [“as he richly deserved”] and the Ensign is

“tortured so fiercely that his inner organs were ruptured” and dies

miserably shortly thereafter (252).

Clearly this will not do. But it leaves Shakespeare with the problem

of how he wants to present the murder. Until the moment when it

happens, we are not sure how it will. But that it will is never in doubt;

forgiving Desdemona is never imagined as an option, though a assumption seems to be that the “ghost” somehow has retrospective

access to this. For the view that the thing in question here is in fact a

demon, see the comments by Richard Strier in the “Roundtable” that

concludes Shakespeare and the Law: A Conversation among Disciplines

and Professions, ed. Bradin Cormack, Martha C. Nussbaum, and Richard

Strier (Chicago: U of Chicago Press, 2013), 304.6 The first Folio gives act and scene divisions.7 Geoffrey Bullough, ed., Narrative and Dramatic Sources of Shakespeare

(New York: Columbia U press, 1978), VII: 250.

7

contemporary play – Thomas Heywood’s A Woman Killed with Kindness

(1603) – dramatizes a version of this.8 When, after Iago finally succeeds

in injecting his “poison” (3.3.328) into Othello’s psycho-social system,

and uses the vividly imagined narratio of how Cassio, when Iago lay with

him, enacted on Iago’s body his sexual relation with Desdemona

(3.3.416-28), to “thicken other proofs,” Othello reacts in hot blood – “I’ll

tear her all to pieces” (3.3.434).9 When he hears about the handkerchief

– again “with the other proofs” – Othello seems to have fixed on his role

as that of a revenger, using typical Senecan rant (“Arise, black

vengeance, from the hollow hell” [3.3.450]), with Cassio as his main

object (though when he says, typically beautifully, “Yield up, O love, thy

crown and hearted throne,” he is probably referring to Desdemona). He

calls for “blood, blood, blood” (3.3.454) – though it is not clear whether

he says this in a “hot” or “cold” mode. His focus now seems to be on his

resoluteness, and he shifts into grand and controlled rhetoric. He can

easily adopt the idea of relentlessness to his normal rhetorical role as

wide-ranging military adventurer. 10 He uses an epic simile for his

resolution, drawing on his exotic world travels (“Like to the Pontic sea,”

etc.). And he sees his resolution to “swallow them up” in his revenge as

“a sacred vow” to be guaranteed by a strangely solid “marble heaven”

(connected to the solidity and “hardness” that he imagines in himself).

We are now in the world of planning. Iago, always the brilliant

improviser, picks up the high cosmological mode (“Witness, you ever-

8

burning lights above”), and agrees to carry out, with great

conscientiousness and devotion, any order that Othello gives him. So he

is immediately commanded to kill Cassio –not that hour but “Within these

three days.” Iago has to remind Othello to think about Desdemona –

saying, with typical “humanity,” “But let her live.” Othello says that he

will “withdraw” to figure out “some swift means of death / For the fair

devil” – so the how is still undetermined, though poison seems to be the

implied solution. We are no longer in the world of hot blood.

The next scene is mainly devoted to Iago’s success with the

handkerchief. When Othello had tried, sensibly, to demand “ocular

proof” of Desdemona’s infidelity, Iago had to convince him that such was

first of all “impossible” (and that Othello didn’t really want to see this),

and second, that seeing Cassio and Bianca with the handkerchief was

exactly equivalent to such. Again, Cassio is the focus, and Othello’s

fantasy is of physically marking the face of the malefactor, symbolically

castrating him and associating his genitalia with an unclean animal – “I

see that nose of yours, but not that dog I shall throw it to.”11 Again, Iago

has to work to get Othello to focus on Desdemona as well as Cassio – or

rather, he has to work to get Othello to think murderously about her.

With Cassio, Othello has no problem – “I would have him nine years a-

killing” (4.1.175) – but in the next sentence, Othello finds himself thinking

of Desdemona with admiration and erotic appreciation – “A fine woman, a

fair woman, a sweet woman!” Iago admonishes him to “forget that.”

9

Othello tries to harden his heart, but cannot keep from admiring and

prizing Desdemona (“the world hath not a sweeter creature; she might lie

by an emperor’s side…”). Again, Iago says, “that’s not your way.” But

Othello will not or cannot stop. He is deeply aware not only of her

physical beauty but also of her womanly accomplishments – her skill at

sewing, and at music – and her mental and verbal gifts – “of so high and

plenteous wit and invention.” She, as we (and he) would say, “has it all.”

But Iago has the answer. Othello had noted earlier of her qualities and

enjoyment of life, “Where virtue is, these are more virtuous” (3.3.189);

Iago now notes that since she is corrupt, “She’s the worse for all this” –

for the misuse of such gifts. Othello sees the destruction or corruption of

such a creature as profoundly sad – “O the pity of it,” he says (twice), but 8 The husband in Heywood’s play, though he actually does have “the

ocular proof,” is seen as a sort of saintly figure. I am not sure what the

audience was to think about his treatment of the adulterous wife, who is

banished from his household and dies of self-starvation in any case.9 In a number of works, Lorna Hutson has emphasized the importance of

narratio in legal proceedings, see, for instance, The Invention of

Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama

(Oxord: Oxford U Press, 2007), 121145.10 On the nature and importance of Othello’s grand style, see Reuben A.

Brower, Hero and Saint: Shakespeare and the Graeco-Roman Heroic

Tradition (New York: Oxford U Press, 1971), ch. 1; and Strier “Paleness

versus Eloquence: The Ideologies of Style in the English Renaissance” (forthcoming).

10

Iago reminds him of shame – if, he tells Othello, her iniquity “touch not

you it comes near nobody,” and this produces a predictably “hot-

blooded” response: “I will chop her into messes! Cuckold me!”

(4.1.197). But that is an exclamation, not a plan. Othello reverts to the

poison idea, and likes it because he can use it from a distance; he knows

himself well enough to be worried “lest her body and her beauty

unprovide my mind again.” But Iago comes up with a “better” plan –

“strangle her in her bed –even the bed she hath contaminated,” and

Othello sees the beauty of it – “the justice of it pleases” (4.1.206).12

So now we have a plan. After a scene in which Othello cannot

maintain his normal high level of decorum and strikes Desdemona in

public, Othello confronts Desdemona in private, though since her lady-in-

waiting, Iago’s wife, Emilia, is there (or just outside the door), he only

verbally abuses Desdemona. She defends herself in a sensible way,

demanding specifics of her supposed unfaithfulness, but her question

about what supposed sin she has committed leads Othello into an aria on

the word; he plays on the phrase “committing adultery,” as if by using

the word she is admitting to the act, and his cosmological mode becomes

oddly comic and prudish – “What committed! /Heaven stops the nose at it

and the moon winks, / The bawdy wind that kisses all it meets / Is hushed

within the hollow mine of earth / And will not hear it” (4.2.77-81). He

seems oddly unwilling to say what “it” is. He directly calls her a whore,

and reverts to Iago’s view of her accomplishments. Venice was famous

11

for its high-class courtesans, and so, with all her charms and skills, she

becomes “that cunning whore of Venice / That married with Othello”

(4.2.91).13

Othello leaves early in that scene (at line 4.2.96 of 246); he does

not appear in the next one; and he makes only a very small appearance

in the first scene of Act 5. That scene is mainly devoted to another

“brawl” arranged by Iago (the second one) in which Cassio is wounded by

Iago and, later in the scene, Roderigo killed by him (in “revenge” for the

wounding of Cassio). Othello enters only to hear Cassio crying out that 11 On marking the face of a sexual malefactor, see Peter Spierenberg, A

History of Murder: Personal; Violence in Europe from the Middle Ages to

the Present (Malden, MA: Polity, 2008), 119; on the nose as phallic, see

Spierenberg, ibid., and especially Peter Stallybrass, “Patriarchal

Territories: The Body Enclose,” in Rewriting the Renaissance: The

Discourses of Sexual Difference in Early Modern Europe, ed. Margaret

Ferguson, Maureen Quilligan, and Nancy J. Vickers (Chicago: U of

Chicago Press, 1986),138-9. Shakespeare’s general hatred of dogs (with

the occasional exception of hunting hounds) is well-known. This

culminates in the play, of course with Othello’s killing of himself as under

the bizarre image of a “circumcised dog” (on which, see Julia Lupton,

Citizen-Saints: Shakespeare and Political Theology [Chicago: U of

Chicago Press, 2005], 121-2).12 For a legal reason why Iago suggests strangulation rather than poison,

see McAdams, ”Vengeance, Complicity, and Criminal Law in Othello.”

12

he has been attacked, which leads Othello to praise Iago’s “noble”

service (5.1.22), and to focus him on his own task – the killing of

Desdemona. Othello is still aware of the erotic power she holds over him,

but he tries to turn it into a motive for his planned action – “Thy bed, lust-

stained, shall with lust’s blood be spotted” (5.1.36). I will refrain from

going into the matter of whose “lust” has “stained” the bed, but I do

want to indicate that I think that Stanley Cavell has this right, and that it

is Othello’s own sexual success that torments him.14 But that is another

paper. We are now ready to examine the actual murder.

The cosmological framework continues, but now without a hint of

humor. The final scene opens with Othello, carrying a torch, soliloquizing

over Desdemona’s sleeping, semi-nude body. We are both prepared and

unprepared for this speech. It is one of Shakespeare’s strangest and

most wonderful pieces of writing. It is just as abrupt, and just as

detached from its immediate context as Hamlet’s great central soliloquy

is. The first line is unintelligible – “It is the cause, it is the cause, my

soul!” What is the cause? All that we know is that Othello is claiming to 13 In what I imagine as an ideal production, Desdemona and Bianca

would be doubled, so that there would not necessarily be any obvious

way of telling them apart. I think that this would be a highly desirable

ambiguity. The difference between them is not on the surface. For a

study of a remarkable cortegiana and her context, see Margaret F.

Rosenthal, The Honest Courtesan: Veronica Franco, Citizen and Writer in

Sixteenth-Century Venice (Chicago: U of Chicago Press, 1992).

13

be driven by some abstract reason, and that he is addressing his “soul” –

something about which he has been continuously concerned (one of his

first speeches concerns his “perfect soul” [1.2.31]). Again, a kind of

delicacy or prudery comes in, but the next line clarifies for us what the

“cause” is, namely, adultery – “Let me not name it to you, you chaste

stars.” So when he repeats “It is the cause” at the beginning of the third

line of the soliloquy, we now understand it. But it seems that the plan

has changed since his appearance in the previous scene. Blood is now to

be avoided rather than shed. He makes a great point of this—he will

preserve her bodily integrity:

I’ll not shed her blood

Nor scar that whiter skin of hers than snow

And smooth as monumental alabaster. (5.2.3-5)

It is as if she were dead already and has been transformed into a statue

of herself, the kind of statue that one might find on a grand family tomb.

But this is a fantasy, since she is still alive. He reminds himself that “she

must die,” though adds another “cause” – “lest she betray more men.”

As the Arden editor notes, this is completely absurd – Othello

cannot care about this.15 But the point, I think, is his odd and extreme 14 Cavell, “Othello and the Stake of the Other,” in Disowning Knowledge in

Six [Seven] Plays of Shakespeare (Cambridge: Cambridge U Press, 1987,

[2003]), 125-142, esp. 136.

14

unwillingness to make the matter personal; the fantasy here is that he

will be doing a sort of public service in killing Desdemona. He then

begins to think about what killing her will actually mean – that it cannot

be undone. He is being eloquent, witty, and philosophical – she is no

longer a (supposedly) sinning person but a kind of living archetype.

Instead of being a “cunning whore,” she is now “the cunning’st pattern of

excelling nature”; this is all very grand and fancy. He is using his whole

range of learned reference, classical and biblical – “Promethean heat,”

“flaming minister.” His Latinate vocabulary is on full display: he cannot

her “light relume.” It seems that he could not be calmer. He moves from

physics to biology in seeing her living being as a “rose” than can be

plucked and cannot be regrown rather than as a light that cannot be relit.

This leads him to the erotic realm, focusing on the function that signifies

life, and that he is planning on removing – he decides to smell “the rose,”

which means to smell her breath. He states that her “balmy breath”

almost dissuades him from the murder, but this is not put in personal

terms, and is clearly not a serious possibility – the “almost” looms very

large. Her breath, he says to her (or it) “dost almost persuade /Justice to

break her sword.” He is, of course, imagining himself as occupying the

position of Justice, but again this is bizarrely abstract, since Justice is

feminine here, and Othello does not have a sword. He is entranced by

this smell – “Once more, once more” – and says, “Be thus when thou are

dead and I will kill thee / And love thee after.” This is said in relation to

15

the sweetness of her breath; he seems to be imagining that, as in the

stories of various saints, she will continue to smell sweet after death. He

takes another whiff and then concludes by commending himself for the

purity of his motive – he is acting out of love, and therefore acting in like

the biblical God – “this sorrow’s heavenly, / It strikes where it doth love.”

There is still nothing personal in all this, except perhaps the olfactory

emphasis. The “I” mentioned here does not seem to have any

characteristics except care (“I’ll not scar”) and love. It is as if he is

viewing the whole scene from the outside.

But then Desdemona wakes up. He insists that he is playing a

priestly role, allowing her to confess her “sins” before she dies, but he is

thrown from his composure by the vehemence of her protestations of

innocence. He repeatedly calls her “perjured,” as if he were a judge as

well as a priest (a confessor was both, but “perjury” is special to courts).

He is disturbed by the idea that she is forcing him to commit a crime. He

has a clear idea of what constitutes “murder” and what does not. He

finds that her protestations of innocence – in the face of his “knowledge”

of her adultery – hardens his heart, and, he says, “makest me call what I

intend to do / A murder, which I thought a sacrifice” (5.2.64-5). So what’s

the difference? The idea seems to be that he is giving up something in

killing her, that he is making a sacrifice of the woman he loves; or (and?)

the idea seems to be that she is a sacrifice to Justice, and he is obliged to

carry it out despite his love for her. He does not want to imagine himself 15 Honigmann, ed., 306.

16

as stony-hearted – that is, as not loving her in doing this act. It seems

that that would be murder. He resorts to urging his proofs against her,

seeing her distress over Cassio’s (apparent) death as proof of her status

as a “strumpet.” Her resistance just seems to infuriate him (he was

much happier when she was asleep). Finally, he does smother her, and

commends himself for doing so quickly so that she does not “linger in her

pain.”

For many more lines, Othello continues to believe that he

proceeded – another term suggesting a trial – “upon just grounds”

(5.2.136). When the truth about Iago’s role in the whole series of events

is finally revealed, a Venetian nobleman says to Othello in genuine

puzzlement: “O thou Othello that was once so good, / Fallen in the

practice of a cursed slave, / What shall be said to thee?” Othello at first

refuses to answer, saying, “Why, anything,” but then specifies:

An honorable murderer, if you will,

For nought I did in hate, but all in honour (5.2.291-2).

This is the position that he clings to. His motive was pure. He acted out

of honor, and even out of love. When he is insisting on getting his story

told objectively – he wishes that the reporter “Nothing extenuate / Nor

set down aught in malice” – he insists that the reporter “must speak” –

cannot do otherwise than describe him as – “one that loved not wisely,

17

but too well” (5.2.342). He insists on is basically good character; he was

“wrought” – like a piece of metal by a craftsman. But the important point

to him is “nought I did in hate.” Othello’s killing of Desdemona was, in

his eyes, an honor-killing, and even more so in that he insists – probably

in some sense rightly – that he continued to love her throughout. The

essential feature of an honor-killing is the (theoretical) purity of its

motive. It is not a matter of hatred but of restoring a previous state of

wholeness or purity though a necessary act of violence. In Othello’s

case, his focus seems to be more on restoring Desdemona’s purity

through the murder, rather than his own – her corpse will be perfect. He

seems less concerned with his own “shame” than with the project of

restoring her to “purity” (monumental alabaster). Othello seems to have

committed what the French in the nineteenth century would have called

a crime passionel, which one scholar sees as a “spiritualized” version of

honor-killing; Othello seems to know that “the act itself did not restore a

man’s honor; his good reputation, according to spiritualized notions of

honor, along with proof that he had shown loyalty, devotion, or romantic

attachment to his partner beforehand, were preconditions” for the crime

to fall under this rubric.16 In societies in which honor-killings have legal

standing, “the commission of an offence with honorable motives” was

considered mitigating or even exculpatory (see the Iraqui Penal Code);

the (convincing) allegation of an honorable motive “fully exempts or

further mitigates the penalty of killers” (under Syrian law).17

18

The Italian story that served as the primary source for Othello –

story 7 of Cinthio’s Third Decade – is preceded by a story in which a man

“discovers his wife committing adultery and revenges himself in

arranging her ‘accidental’ death.” Story 7 begins by describing the

reaction of Italian ladies constituting the fictional audience to the prior

story. These ladies expressed the view that the adulterous wife

“appear[ed] worthy of the severest punishment” and “that it would be

hard to find any other man who, discovering his wife in such a

compromising situation, would not have slain both of the sinners

outright.” Indeed, “[t]he more they thought about it, the more prudently

they considered him [the cuckolded husband] to have behaved.” The

storyteller then moves to the story of the Moorish Captain who slays his

wife out of jealousy though she is without fault. Long after that killing,

the story ends with the report of another morally approved revenge

killing, here motivated by the injustice of the first killing: The Captain

“was finally slain by Disdemona’s relatives, as he richly deserved.”18

The Spanish theater contemporary with Shakespeare treated the

issue of honor-killings repeatedly, but may have only seemed to support 16 Spierenberg, A History of Murder, 188.17 Diana Y. Vitoshka, “The Modern Face of Honor Killing: Factors, Legal

Issues, and Policy Recommendations,” Berkeley Undergraduate Journal

22 (2010): 17, 22.18 [Appendix 3 of the Arden Othello, pp. 370-386, specifically p.370 and

385.]

19

the logic of them; Othello may have been a clearer instance of a true

honor-killing than any of the comedia, since, as Melveena McKendrick

states, there is very little sense in the Spanish plays that the outraged

husbands actually did love their supposedly erring wives.19 Would the

early modern English audience have thought that Othello’s sentence on

himself (execution as a traitor) was too harsh?

Near the end of the play, when Othello has fully admitted that he

killed Desdemona (and conspired to kill Cassio), the Venetian leader

Lodovico is oddly vague about what Othello has done. He tells Othello

that he is to be detained “Until the nature of your fault be known / To the

Venetian state” (5.2.334). Lodovico does not say until “your murder,” or

“the nature of your murder,” or even “the nature of your crime” is known

to the state, but the less judgmental “nature of your fault.” Perhaps it

was still not clear to those present that what occurred was a murder.

What could possibly account for this uncertainty?

3: Desdemona’s Killing and The English Law of Homicide

England did not formally recognize a legal defense for an honor

killing. There is nothing in the judicial opinions or legal commentary that

describes any such defense. We get something close to an explicit denial 19 See Melveena McKendrick, Identities in Crisis: Essays on Honour,

Gender and Women in the Comedia (Kassel: Edition Reichenberger,

2002), passim; for the contrast with Othello, see 109. I owe my

awareness of this important book to my student, Kathryn Swanton.

20

in a 19th century English case, Regina v. Fisher,20 where a father had

killed a man who took “unnatural liberties” with his son, some form of

sodomy. The court states:

There would be exceedingly wild work taking place in the

world if every man were to be allowed to judge in his own

case. The law of England has laid it down positively and

clearly, that every killing of another is itself murder, unless

the party killing can shew by evidence that it is a less

offence; or unless circumstances arise in the case which will

either reduce the killing to manslaughter, or reduce it to no

crime at all.

The court here refers to grounds like self-defense and mistake, which

might fully exonerate the defendant or lower the crime to one of

manslaughter. In Shakespeare’s time, a manslaughter conviction left the

convict eligible for the benefit of clergy and therefore a sentence less

severe than death, sometimes just a branding on the thumb.

Despite the absence of a formal recognition of honor killings leaves,

the play engages some legal doctrines that might excuse Othello’s killing

or render it a less severe form of homicide.

3a: Taking Literally Othello’s Claim to Justice 20 173 E.R. 452 (1837).

21

We should briefly consider the unlikely possibility that Othello

possesses the legal authority to carry out the execution of Desdemona.

At least, we should not overlook the fact that Othello exercises some

genuine governmental powers on Cyprus. He has a "commission."

1.3.282. He is apparently the “governor” of Cyprus, as Cassio is

recognized as such after replacing Othello. See 1.3.224 and explanatory

note and 5.2.365. He feels free to threaten to kill anyone who moves or

continues to fight when he discovers the Cassio/Roderigo brawl. See

2.3.161 and 170. Those men are under his command, of course, but

apparently there is no separate Venetian civilian authority in Cyprus at

this time. As the highest governmental authority, Othello may imagine

himself as being authorized to hand out death sentences.

In the English legal commentary attributed to Bracton, written in

the thirteenth century, there is this discussion of killing by the

administration of justice:

[I]t is homicide if done out of malice or from pleasure in the

shedding of human blood [and] though the accused is

lawfully slain, he who does the act commits a mortal sin

because of his evil purpose. But if it is done from a love of

justice, the judge does not sin in condemning him to death,

nor in ordering an officer to slay him, nor does the officer sin

if when sent by the judge he kills the condemned man. But

22

both sin if they act in this way when proper legal procedures

have not been observed.21

The commentator Lambard, circa 1581, states the same idea in

Latin: "Not everie Manslaughter deserveth punishment (saith M.

Bracton) for in expressing that Homicidium corporale facto

committitur quatuor modis s. Iusticia, necessitate, casu vel

voluntate, therewithall he addeth that the firste of these is no sin at

all, if it been done sincerely, and without delight in shedding of

bloud."

From Othello’s point of view, he is the judge; he is Justice. He has

considered the evidence, determined her guilt, and passed sentence. The

murder scene amply demonstrates that he takes no delight in killing

Desdemona. Although “the shedding of blood” is merely a metaphor for

killing, at least as a literal matter he is utterly opposed to the shedding of

her blood, wishing to avoid marring her body in any manner. He acts

instead from what he takes to be a “love of justice.”

Of course, Othello does not follow the proper legal procedures, at

least not by English standards. There is no judge no judicial process

ordering the execution of Desdemona. Indeed, any modicum of judicial

process would undoubtedly have discovered her innocence.

21

http://bracton.law.harvard.edu/Unframed/English/v2/340.htm#TITLE298.

23

3b: The Mitigation to Manslaughter for Provoked, Hot-

Blooded Killings

The closest the law came to a defense for honor killing was one of

the grounds for reducing the grade of a homicide from murder to

manslaughter: “provocation.” Some background here is necessary. The

broader distinction between murder and manslaughter, in Elizabethan

England, involved killing by malice prepensed or forethought (murder)

and killing without such malice (manslaughter). The law would frequently

imply malice from the circumstances of the killing, but one case where it

would not imply malice was when the killing occurred on a sudden

quarrel or chance medley.22 A prominent example is where A assaults B

or a member of B’s family in such a way that B is not legally justified in

responding with deadly force (because the attack is not serious or it has

clearly ended and A is leaving the scene), but B nonetheless immediately

kills A. Another possibility is that A and B “fall out” and simultaneously

engage in mutual combat, each delivering blows before B kills A. These

situations might qualify for manslaughter. By contrast, if A provokes B

merely with words, however insulting, B’s killing A is murder.23

Note how the distinction would matter had two instances of near-

violence in the play become lethal. When Iago speaks insincerely to

Othello about how he wanted to kill Brabantio because he “spoke such

scurvy and provoking terms / against your honour” (1.2.7-8). It would

have legally been “contrived murder” (1.2.3) to kill Brabantio for

24

“prat[ing] (1.2.6), no matter how insulting it had been to Iago or Othello.

Later, Othello tells Iago that he must provide proof of the adultery he

alleges “Or by the worth of man’s eternal soul / Thou hadst been better

have been born a dog” (3.3.364-365) and “woe upon thy life!” (3.3.369).

Here too, had Othello killed Iago for the insult to Desdemona and himself,

the mere words would not have been sufficient provocation to lower the

crime of murder to manslaughter.

Yet an assault was only one type of legally adequate provocation.

Another, possibly helpful to Othello, was the discovery of adultery. In

1706, the Court in Mawgridge’s Case described the rule:

Where a man is taken in adultery with another man's wife, if

the husband shall stab the adulterer, or knock out his brains,

this is bare manslaughter; for adultery is the highest invasion

of property, and there cannot be a greater provocation: and

jealousy is the rage of a man.24

As an aside, one of the legal ironies of the play is that, had Othello

discovered Desdemona committing adultery with Iago (one version of

Iago’s “wife for wife,” 2.1.297), Othello’s immediate killing of Iago would

be manslaughter. But because Iago does not copulate with Desdemona

nor physically strike or threaten to strike Othello, the law would recognize

no mitigation for his killing. In addition to the example in the prior

25

paragraph, the audience must contemplate the possibility of Othello

killing Iago when he wounds him near the play’s end (Iago: “I bleed, sir,

but not killed,” 5.2.285). Yet, even here, after the depths of Iago’s villainy

are fully exposed and Desdemona lies dead (as well as Emilia and

Roderigo), there would be no recognized basis in English law for treating

Othello’s killing of Iago as manslaughter. McAdams previously argued

that Othello exposes one absurdity in the period law, which is its 22 See Raven’s Case, 84 E.R. 1065 (1661)(“manslaughter . . . in law is

properly chance-medley, that is where one man upon a suddain occasion

kills another without malice in fact, or malice implied by law;” also: “if

one man kill another, and no sudden quarrel appeareth, this is murder”);

John Royley’s Case, 79 E.R. 254 (1611)(killing in a fight upon “sudden

occasion” is manslaughter); Rex v. Keate, 90 E.R. 557 (1702)(killing upon

a “sudden affray” is manslaughter).23 This point was established no later than 1661 in Raven’s case, 84 E.R.

1065:

No words, be they what they will, were such a provocation in law,

as, if upon them one kills another, would diminish or lessen the

offence from being murder, to be but manslaughter. As if one called

another son of a whore, and giveth him the lie, and upon those

words the other kill him that gave the words, this not-withstanding

those words, is murder; . . . [S]uch a provocation as must take off

the killing of a man from murder to be but manslaughter, must be

some open violence, or actual striving with, or striking one another.

26

considering Iago’s crime for methodically inducing Othello to kill

Desdemona to be categorically less serious (murder or no crime) than the

one he would commit by killing Desdemona himself (petty treason).25

Now we see that the play may be read to identify a second absurdity:

that Othello’s killing of Iago would have been more serious crime under

the facts of the play (murder) than if Othello had killed him after

discovering him in an adulterous act with Desdemona (manslaughter).26

To return to our main analysis, note that the first published

expression of the adultery-as-provocation rule (that we have located)

comes in a 1670 opinion. When John Manning “found [a man] committing

adultery with his wife in the very act,” and immediately beat him to

death with a stool, it was held to be manslaughter rather than murder.27

The penalty was a branding on the hand and the trial court “directed the

executioner to burn him gently, because there could not be greater

provocation than this.” There are strong grounds to believe the rule

existed well before 1670 because (a) only a small percentage of criminal

cases produced a published opinion and (b) the opinion here does not

consider the issue to be novel or difficult. If the court felt comfortable

stating “there could not be greater provocation than this,” then it seems

likely that prior courts had reached the same result in the inevitable

cases where men had killed after discovering their wives committing

adultery.

24 90 E.R. 1167.

27

Nonetheless, it requires speculation to know how the law of

provocation would have applied to Othello, given that the rule is so

undeveloped in the formal materials at the time Shakespeare wrote the

play. We should also note that there is less than perfect consistency

between cases from the same time period. Intriguing, however, are two

apparent barriers to Othello’s use of the doctrine, judging by later judicial

precedent. First, Othello doesn’t kill Cassio and Desdemona after

discovering them in flagrante delicto. Mawgridge’s Case refers to the

decedent being “taken in adultery” and John Manning found the man he

killed “in the very act.” These defendants had the “ocular proof” that

Othello seeks but never obtains. We have discovered no English case

before 1800 where the discovery of adultery mitigated murder to

manslaughter except where the discovery was contemporaneous with

the copulation. In the Fisher case mentioned above, decided after 1800,

the defendant tried to rely on an analogy to the precedents involving the

discovery of adultery and the court rejected the provocation claim

stating: 25 See McAdams, ”Vengeance, Complicity, and Criminal Law in Othello.”26 Alternatively, the play raises for the lawyer the complex possibility that

Iago’s killing of Desdemona as an accomplice of Othello, gives Othello a

legally adequate provocation for the immediate killing of Iago. But what a

shocking thought that a person could be provoked by his own act of

violence!27 Anonymous, 83 E.R. 112

28

If this man had seen the thing happen, and had at that

moment inflicted the injury, I should have rather inclined to

think that it would have been within the [adultery-as-

provocation] rule in [the cited] case. . . . In all cases the party

must see the act done. What a state should we be in if a man,

on hearing that something had been done to his child, should

be at liberty to take the law into his own hands, and inflict

vengeance on the offender. In this case the father only heard

of what had been done from others.28

There is another, more fundamental doctrinal limitation (indeed,

from which the first may merely be derived): the necessity of hot-blooded

motivation, i.e., that one kills immediately after the provocation while in

the “transport of passion.”29 After the passage of “cooling time,” the

mitigation was lost and the killing would be murder, despite legally

adequate provocation. For example, if two individuals fell into an

argument and agreed to meet to fight the next day (or possibly even

hours later on the same day), any resulting death would be murder

rather than manslaughter because the court would not believe the

passions to remain sufficiently inflamed after the interval.30

This rule about “cooling time” might still conceivably allow the

mitigation even if one did not discover the adultery in progress. When 28 173 E.R. 452 (1837).

29

Fisher says “In all cases the party must see the act done,” this seems to

be an exaggeration of the case law, if nonetheless a useful rule of thumb.

Usually, if one is not close enough to the provoker to witness the act of

provocation, there is cooling time before one can find and kill the

provoker. But if this is the reason for what we might call Fisher’s ocular

rule, then it must admit of exceptions. There are cases of assault of a

family members where the killer doesn’t see the assault but acts quickly

enough to still be in the transport of passion, meriting manslaughter

instead of murder. In Royley’s Case, a father who killed a boy who

bloodied his son successfully argued provocation even though he had to

walk “about a mile” to find and kill the attacker. The court emphasized

that the defendant set out immediately from his home upon discovering

his son’s injuries, but the point is that the requirement of an immediate

response to the provocation permits as much as, say ten or fifteen

minutes. There are no early cases like this involving adultery but one

could imagine the courts granting someone a defense for killing within a

similar timespan after learning of the adultery, at least in the easier case

where the adultery was real. 29 See The King v. Oneby, 92 E.R. 465 (1727)(discussing “transport of

passion”).30 See Raven’s Case, 84 E.R. 1065 (1661)(the judges agreed “that if two

men fall out in the morning, and meet and fight in the afternoon, and one

of them is slain, this is murder, for there was time to allay the heat, and

their after-meeting is of malice.”).

30

Of course, the Fisher court might offer a different reason for

requiring ocular proof: to avoid mistake. But Royley’s Case also allows

the possibility of mistake – how could the father be certain his son had

told him the truth about who beat him? But perhaps the final point is that

the early cases involve provocations where there were no mistakes: the

decedent actually did commit assault or adultery.

In any event, even if we put the issue of mistake aside, if a jury

knew all that the audience of Othello knows, then Othello would have no

chance of claiming that his killing Desdemona was manslaughter. The

play has some notorious issues of timing, with one possibility being that

the events occur in a single day, which might shorten the time from

Othello’s “discovery” of adultery. But the argument still seems

implausible. First, he still believes in Desdemona’s adultery for at least as

long as it takes to act out the play from Act 3, scene 3, to Act 5, scene 2,

which is longer than half an hour. Second, as recounted above, he begins

Act 5, scene 2 with an unexpected calmness, the opposite of the

“transport of passion.” He has reflected on what he is about to do and

continues to delay while he smells Desdemona and offers her time to

pray.

Yet the audience knows that a real world jury would not know

all the facts. Lorna Hutson argues that Shakespeare and

contemporary writers elicited from legally conscious audiences the

dual perspectives of one who knows all that the play reveals and of

31

one who, like a jury, knows only what can be subsequently proved.

Had Othello not committed suicide, perhaps he would have told a

tale consistent with the provocation claim. The perspective of

Lodovico is informative here because he knows so little about the

events, even though he knows Othello confesses to murder. But one

who is distraught from having killed in the heat of passion might call

his killing “murder” (and himself a “murderer”) though it is legally

manslaughter. Thus, Lodovico, like a subsequent jury, expresses

doubts about “the nature of [Othello’s] fault.”

The one certainty for the jury is the means of killing. Where

poison quintessentially showed malice, the act of smothering does

not. Indeed, it seems like it might have been the instantaneous act

of a man whose wife just confessed her adultery. The jury would

know that Othello had recently struck Desdemona in public, which is

good evidence of malice, but a defense lawyer might explain away

that act as occurring for other reasons or because Othello suspected

her of adultery but was not fully enraged until she admitted it to

him, the moment before he acted. Depending on other events (e.g.,

if Rodrigo had killed Cassio and Emilia had not be in a position to

expose Iago), there might be no evidence to contradict the claim

that Desdemona had committed adultery. If so, then dual

perspectives of audience and jury create considerable cognitive

dissonance: it is easy to imagine the jury seeing Othello’s action as a

32

classic hot-blooded rage, while the audience has just experienced

the eerie calm of Othello’s eloquent, witty, and philosophical

soliloquy, his high-minded and cold-blooded murder.

Yet, if one is to press the point, there is no early case where

the confession of adultery, rather than its sight, mitigates murder to

manslaughter. At this point, what is particularly relevant for a

Shakespearean audience is the difference in the formal law and its

“on the ground” application. Despite the formal legal doctrine

reviewed above, the juries at the time of Shakespeare were

considerably more indulgent of provocation claims. We should first

reveal a pertinent fact about the Fisher case, discussed above. As

indicated, the court instructed the jury that “in all cases the

defendant must see the act done.” The defendant in that case had

not seen the decedent take “unnatural liberties” with his son, so the

case was a simple one. And yet the jury ignored the instruction and

convicted the defendant of manslaughter, not murder. The jury even

recommended leniency in the sentencing for the manslaughter.

That was the 19th century, but juries in Shakespeare’s time were

also in conflict with judiciary about the murder/manslaughter divide,

which plausibly made these issues of common interest in London at the

time of the play. Honigmann dates the play’s creation as from mid-1601

to mid-1602, while other argue for a completion date as late as 1604.31

Two legal sources reveal the nature of this conflict just before and after 31 [Arden edition of Othello, 3d edition, appendix 1, pp.344-350]

33

the writing of Othello. The first source is the decision in Watts v. Brain,

from 1599.32The facts of the case begin with a fight between the

defendant Brain and the decedent Watts (whose wife later brings the

lawsuit), in which Brain was injured, but both sides survived. Had the

death occurred in this fight, it would likely be manslaughter because it

occurred on a sudden occasion. However, the fatal incident occurred

three days later, when Watts walked by Brain’s shop and, according to

Brain, “smiled upon him, and wryed his mouth at him.” “[F]or this

mocking of him,” Brain pursued Watts and “struck him upon the calf of

his leg, whereof he instantly died.”33

The court thought this killing was obviously murder, not

manslaughter, telling the jury that “a wry or distorted mouth, or the like

countenance upon another” is “such a slight provocation” that it “was not

sufficient ground or pretence for a quarrel.” The reporter’s abstract to the

opinion states the rule more definitively: “No words or gestures, however

provoking, will justify homicide from the crime of murder.” So the judges

instructed the jury (as English Courts were allowed to do) that the crime

was murder “although what the defendant pretended had been true.” Yet

the jury returned to the courtroom to deliver a verdict of acquittal. That

did not sit well with the judge. “The Court much mis-liking thereof, being 32 78 Eng. Rep. 1009.33 We see no significance to the similarity to Iago’s attack on Cassio

because the parallel attack in Shakespeare’s main source, the Cinthio

story, was also on the leg.

34

contrary to their direction, examined every one of them by the poll,

whether that was his verdict” and two jurors said they thought the

defendant was guilty, but, being outvoted, had agreed to report out an

acquittal. “[W]hereupon,” the jurors “were sent back again, and returned,

and found the defendant guilty.” For their misbehavior, several jurors

were then imprisoned and fined. The defendant Brain was sentenced to

be hanged.

The main point here is that juries sought to resist the limitations

the courts placed on the provocation doctrine. They were inclined to

apply the logic of mitigation even when the provocation was non-verbal

mockery. If a wryed mouth could so motivate a jury, imagine if Othello

were alive to testify at his trial that the alleged adulteress Desdemona

“weep’st . . . for [Cassio] to my face” just before he kills her.

Now for the second legal source. In 1604, immediately after the

writing of Othello, Parliament enacted 1 Jac. Ch. 8, what comes to be

known as the Statute of Stabbing, which says that, even if “malice

aforethought cannot be proved,” it is murder, not manslaughter, for a

person to “stabbe or thruste” a person who has not struck a prior blow

nor drawn a weapon.34 The statute declares its aim to be to restrain

“stabbinge and killinge men on the sudaine,” but it still seems redundant

with pre-existing law, which required some kind of mutual combat to

justify manslaughter. How would it not be murder to stab a person who

has not struck a blow nor even drawn a weapon? The answer is that the 34 4 Statutes of the Realm 1026.

35

law’s purpose was not to change the law, but to compel more effectively

the juries to follow it. Juries were resisting the law’s formulation, as in

Watts v. Brain, so the statute attempts to identify a common class of

cases – men with swords reacting to insults, not physical attacks – and

created a bright line rule: this is murder, without further proof of malice.

The statute was needed, in the eyes of Parliament, because the men who

sat on juries were too receptive to arguments in favor of honor killings.

We see this interpretation of the Statute of Stabbings sixty-one

years after its enactment from a distinguished group of twelve judges

prior to the trial of Lord Morley for murder. The Lord Chief Justice of the

King’s Bench stated: “we were all of opinion that the statute of 1 Jac. for

stabbing a man not having first struck, nor having any weapon drawn,

was only a declaration of the common law, and made to prevent the

inconveniencies of juries, who were apt to believe that to be a

provocation to extenuate a murder, which in law was not.”35 Thus, the

law of homicide generally and the law of provocation specifically was a

locus of conflict between the courts and juries, a topic likely to engage

those men in the original audiences who were the sort to serve on juries.

Despite the law, potential jurors were likely to have felt that Othello

would not have been guilty of murder, at least if he had been correct in

his belief that Desdemona had committed adultery.

Finally, if all this legal framing is correct, it directs our attention to

the play’s focus on Othello’s temper. The law of provocation imagines a 35 See Raven’s Case, 84 E.R. 1065, 1079-1080 (1661)(emphasis added).

36

simple dichotomy: hot blood and cold blood. When one is initially enraged

by some severe provocation, one is lost to “the transport of passion.” The

passion is “hot,” but with time, it “cools,” and one is again capable of

rational deliberation. If one knows only what a juror would know about

Othello’s killing of Desdemona, one might easily imagine that it occurs in

hot blood. But the audience knows that Othello’s blood has cooled. He

moves from great rage to the eerie calm that begins the final scene. As

scholars of criminal law have debated endlessly, however, there is reason

to doubt the simple hot-cold dichotomy for the reasons we see in Othello.

First, it is not obvious that Othello is more rational during his serene state

at the beginning of the murder scene than during his hot-blooded scenes.

We reviewed above the ways in which his thinking is unreasonable, as if

he has been driven not back from anger but to some strange point

beyond anger. Second, as the scene progresses, and Desdemona wakes

to deny the charges, Othello becomes angry again. It is obviously

artificial to think that rage dissipates and deliberation strengthens in a

linear fashion after the provocation. Instead, even if the long term

emotional change works this way, in the short run, rage ebbs and flows.

We see this in the Othello’s scenes with Iago, where he cannot sustain his

rage, and then again in the final scene with Desdemona, where he cannot

sustain his calm.

4: Conclusion

37

[To be written]

38