Ben Jonson was a younger contemporary of Shakespeare. He was a playwright and poet of the highest caliber. The distance of the four centuries blurs the sharp particulars of the trials all must go through to earn their stripes, especially the greatest. Jonson had to negotiate the rapids of political and social controversy, a task which, then as now, requires wisdom and courage.
Let our governments do what they are meant to do: protect the vulnerable.
Seeking wisdom, Jonson made a request of a young and brilliant friend of his, the scholarly lawyer and constitutionalist, John Selden. The time was just before Shakespeare passed away in 1616. It may seem strange to us now, but even in the heyday of greatest English dramatists, the staging of plays was increasingly controversial. The Puritan movement was coming into its own, and in that time and place, religion and politics were tightly intertwined.
The Puritans and their allies were critical of the rule of the Anglican bishops in the English church. They emphasized the primacy of Scripture over the church hierarchy, which they believed corrupt and even idolatrous. Among other things, they had issues with plays, which were to them frivolous at best, and often lewd and idolatrous. Here is William Prynne, writing in 1630:
That popular stage-playes … are sinfull, heathenish, lewde, ungodly spectacles, and most pernicious corruptions; condemned in all ages, as intolerable mischiefes to churches, to republickes, to the manners, mindes, and soules of men. And that the profession of play-poets, of stage-players; together with the penning, acting, and frequenting of stage-playes, are unlawfull, infamous and misbeseeming Christians.
The point of one biblical spear with which the Puritans attacked the theaters was cross-dressing. In the Globe and other theaters at that time, no women appeared on the stage. (The first time that happened was on the Restoration, in 1660.) One might think that this would be enough to acquit the stage of the charge of lewdness, but to the contrary, it was the cause of what the Puritans proclaimed a violation of divine law, since all the female parts were played by males wearing female dress. Cross-dressing was prohibited in Deuteronomy 22:5:
Male garb shall not be on a woman and a man shall not wear a feminine garment, for anyone who does so is an abomination of God.
Ben Jonson, therefore, wrote his learned friend Selden for insight: what was “the literall sense and historical of the holy text usually brought against the counterfeiting of sexes by apparel.”
Much later in his life, Selden would be quoted, holding forth at his dinner table on this very topic.
I never converted but two, the one was Mr. Crashaw [a preacher associated with Selden’s law school, the Inner Temple], from writing against plays, by telling him a way how to understand that place, of putting on woman’s apparel, which has nothing to do in the business, as neither has it, that the fathers speak against plays in their time, with reason enough, for they had real idolatries mixed with their plays, having three altars perpetually upon the stage.
That was towards the end of Selden’s life, but the reason he gives for dismissing the law’s applicability to the English stage was the same as the one he gave to Jonson in 1616 when he was still a young man, not yet come to his full powers.
To Jonson, Selden wrote that the biblical prohibition is very specialized, focused only on idolatrous rites common in the ancient Middle East in which various divinities would be served by crossdressing.
The problem, Selden wrote to his friend, is that drama in the ancient world was also associated with idolatry, altars to various deities being ever-present on Greek and Roman stages and throughout the Middle East. The church fathers therefore associated the theater with idolatry, inclining the pious away. But contemporary theater was no longer associated with the worship of those gods and therefore there was no violation of divine law.
Selden argued to Jonson in his letter that the ancient gods were often served by cross dressing as well. This, he claims, is what the biblical injunction was aimed against, not lewdness. The cross-dressing on the English stage has nothing to do with this.
Selden put together his argument from many sources. At this early time, Selden was already fluent in biblical Hebrew, though still unfamiliar with classic rabbinic literature. He was, however, familiar with the writings of Moses Maimonides, who had been widely read by the medieval Christian Scholastics and was therefore well-known to the well-educated of Selden’s time.
Maimonides was the most outstanding Jewish jurist and philosopher of the Middle Ages. He authored the only complete code of Jewish law and wrote a highly influential philosophical work as well, the Guide for the Perplexed, which, among other things, looked at Scripture and explored deep rationales for many of its laws. One of those laws was the law prohibiting cross dressing.
Maimonides there cited a book he believes was written by idolators. It is from that text from the Guide that Selden found his argument. Here is the crucial sentence:
You will find in the book of Tumtum the commandment that a man should put on a woman’s dyed garment when standing before [the planet] Venus and that a woman should put on a cuirass and arms when standing before Mars.
Selden goes on to argue that it was common in the pagan world to ascribe its deities as beyond sexual difference and thus requiring a blurring of the lines in their worship. In a book he wrote around the time of this letter, he says this was true of Baal as well as the Roman and Greek deities.
Much more remains to be said about Selden’s argument, but here we will follow out only the end result — his answer to Jonson as well as to the cleric he mentioned many years later, was to say to them that the Scriptural prohibition did not apply to the theater as it had developed in England, since it no longer was intertwined with worship of the pagan deities.
Decades later, Selden brought his mature scholarship to bear against overlarge claims made for the divine in law in British life. The conflicting claims of the Puritans for a divine republic and that of the Cavaliers for the divine right of kings led to a vicious and prolonged civil war. Selden sought for a constitutional concept of law in which religion would no longer drive conflict, but help resolve it.
His study of rabbinic sources, begun when imprisoned in the Tower of London for standing for Parliament’s privileges in the face of a tyrannical king, led him to teach that the only divine law binding all nations other than Israel was the Noahide covenant — everything else was fair game for the nation to decide for itself under the Noahide mandate to set up a system of laws and courts.
Selden therefore would teach that only the most basic political issues could be settled by appeal to divine law, and the rest would be settled by the laws of the people.
The Puritans went in another direction. In England, they fought the king, executed him and set a military dictator in his place. They applied their version of Scriptural law to all facets of British life, believing true piety essential to the state, which must be holy just like ancient Israel. The country rejoiced wildly when their rule ended and the monarchy was restored. King Charles II’s court led the way in fleeing from the grim disciplines of Puritan sainthood.
Give them their due. The Puritans gave us the blessings of heroic resistance to religious compulsion in England and the works of John Milton. In America, the Puritans were the Pilgrims who were instrumental in the American founding by those seeking their own freedom of religion. But in Massachusetts, they also burned citizens as witches and hanged Quakers for religious deviance. By the time of the eve of the Revolution, Massachusetts had left Puritanism behind to advocate for liberty for more than just themselves.
It was that broader vision of liberty that Selden saw at work in the English constitution he so profoundly influenced and in the American Constitution, written as it was by those who were often trained in law by the works of Selden’s disciple, Matthew Hale.
Conservatives by creed look to our history for insight into contemporary problems. Our cherished American liberty allows us considerable leeway to live our lives as we choose so long as that does not impinge unduly on others. We may believe, as many Jewish and Christian sources teach, that maintaining the distinctness of the sexes in dress (among other things) is important. Only a minority, though, think that such a view should be enforced by American laws.
What does have widest popular support is shielding people from injury caused by the militant advocates of blurring the boundaries between the sexes. The great majority don’t want to use laws to stop adults from crossdressing or altering their sexual organs by drugs or operations.
What the majority do object to is the penalizing women by forcing them to compete with those who have the advantage of a male physique — the very act that there is no such problem crossing the boundary from woman to man is the most obvious evidence that male bodies are routinely stronger. With women’s competition open to those with a physique shaped by having a y chromosome, the chance for those born female to win in sports is unfairly diminished.
There is as well no divine mandate for forcing minor girls to be changed and shower in locker rooms together with those sporting male genitalia. Nor do the laws of nature require that we give minors surgeries and drug regimens that render them forever unable to reproduce or have sexual pleasure and sentence them to a lifetime of drugs and surgical care. Nor is there anything that requires us to ignore or lie about all the psychological problems that attend the physical and emotional pain that these realities cause.
All those things, our American law stands ready to remedy and to protect the liberty of our children and parents from those who would impose their form of divine service on our nation. The rest, we’re ready to leave to the conscience of our citizens.
There is much to learn from this exchange of letters between great men.
Let our religions inspire us to saintliness; governments aren’t successful when they try to force it.
Let our governments do what they are meant to do: protect the vulnerable so that they too can make their own choices when they grow to maturity and pursue their happiness.
Selden’s common sense was a gift to his country and to the constitutional tradition. We’re taking up the gift with a new appreciation. May its benefits renew our national life.
READ MORE from Shmuel Klatzkin:
