As Artegall, the heroic embodiment of Justice in Book V, and his companion Prince Arthur approach the court of Queen Mercilla in Canto ix of The Faerie Queene (1596), they might expect to see a statue of Diké, but instead, they must confront a frightening and mysterious show of judicial punishment for the misuses of speech. Despite the narrator’s claim that in Mercilla’s court, there is “ioyous peace and quietnesse alway” (V.ix.24), a nameless “Poet bad” stands in the forecourt with his tongue nailed to a post as a cautionary warning to those who might disrupt that peace.¹ This emblematic description of a silent and immobilized writer is specifically a judicial punishment for his “bold speaches,” “lewd poems,” and “railing rymes” (V.ix.25) against the Queen herself. With his own tongue immobilized and silenced, the offender is himself redefined and edited by ambiguous graffiti above his head:

There written was the purport of his sin,

In cyphers strange, that few could rightly read,

BON FONT: but bon that once had written bin,

Was raced out, and Mal was now put in.

(V.ix.26)

A figure of Dantean contrapasso, this “bold” poet is now the subject of composition and interpretation: is he a criminal or a martyr? Readers of BonMalfont are invited to interpret the scene variously as an appropriate legal response to libel and slander, an open display of state violence directed at political opposition, or an unjust repression of the poet/maker’s artistic autonomy.² I suggest that Spenser does not, in fact, argue for the modern value of free expression through this figure, but instead illustrates a tragic awareness that such freedom is an unattainable artistic and political illusion. For Spenser, there is no freedom of speech, only responsibility for it. Poetry has clearly been banished from the court and courtroom; nonetheless, the subsequent trial of Duessa demonstrates that the dangerous pathetic power of the “Poet bad” cannot be contained by the law, and indeed may end up circumventing it entirely, despite the best efforts of the authorities to control its meaning and effect.

The exclusion of the poet from the courtroom at the beginning of Duessa’s trial reminds us that poetry relies on pathos for its effect, while judicial rhetoric as embodied by Zele, the prosecution, depends upon ethos and logos. We see how the three different forms of Aristotelian appeal are deployed in a battle for the hearts and minds of the spectators and the judge herself. In a trial scene, one might expect an emphasis on the craft of forensic rhetoric, but why does this trial open with a reference to a poet instead of a rhetor? Duessa’s trial alludes of the 1586 trial of Mary, Queen of Scots, in which the primary piece of documentary evidence for Mary’s guilt were the so-called Casket Letters. The contents of the casket allegedly proved, among other things, her complicity in plotting the murder of her second husband Lord Darnley, Elizabeth I’s cousin, with her lover Lord Bothwell. Among the documents were twelve manuscript poems (eleven sonnets and one sestain) that were interpreted as a mirror into Mary’s mind; the assumption that poetic utterance can be legal evidence of mens rea was a key foundation of the charges against her. Thus, although she never confirmed her authorship of the poems, Mary herself was framed as a “Poet bad” whose “lewd poems” emerged as forensic evidence during her trial. The sonnets, written in French and translated into Scots by George Buchanan, are reverse-Petrarchan laments from a woman speaker addressed to an inconstant male beloved, but no names are used.³ They also contain ambiguous imagery associated with devotional poetry, descriptions of spiritual and religious longing in erotic terms.⁴ As with all poetry, the meaning of these “casket sonnets” is ambiguous, raising the question of whether one can assign them the status of legal evidence. Zele charges Duessa with conspiracy, in conjunction with two “paramours,” to “depryve/ Mercilla of her crowne” (V.ix.41), an accusation that recalls Mary’s alleged sexual immorality and disloyalty as proven by the casket poems. Like Malfont in the forecourt, Duessa ends up “blotted” (V.ix.38) and “vntitled” (V.ix.42), a crossed-out and canceled text, her ethos destroyed by Zele.

While he is an effective rhetor “[t]hat well could charme his tongue, and time his speech,” Spenser’s Zele relies primarily on logos to make his case against Duessa with “sharpe reasons” (V.ix.39), piling on charges to make her “haynous fact” (V.1i.43) undeniable to Mercilla and the onlookers. Zele is a star prosecutor, skillful and prepared, perhaps a fictional analog of Chief Justice Sir Edmund Anderson, but he fails to convince the judge, Mercilla, to take decisive action. Zele’s near-failure demonstrates the great weakness of forensic rhetoric: by relying on logos, it underestimates the power of pathos. Zele understands what he is up against: the forces of “pitie” and “compassion” among the viewing public (V.ix.38, 39). By transferring poetry from the realm of fiction into fact, the prosecution against Mary tried to contain the inherent pathos of the love sonnets attributed to her by recasting them as factual proof of a guilty mind. Zele similarly attempts to undermine Duessa’s poetic appeal but cannot ultimately do so. Duessa is not a poet; she is, however, a skilled actor who deploys Aristotle’s theory of tragedy to gain the upper hand. She replaces the deliberative debate of a trial with the emotional manipulation of a performance. Spenser uses the language of dramatic tragedy to illustrate: “all this cursed plot,/ Ere proof it tooke, discouered was betimes,/ And th’ actours won the meed meet for their crimes” (V.ix.42). By turning the trial into a drama, Duessa engages the sympathy of Prince Arthur, “inclined much unto her part” and softened by the spectacle of her “wretched ruine of so high estate” (V.ix.46). He interprets Duessa as an example of tragic catastrophe rather than Justice done. Mercilla is similarly affected:

But rather let in stead thereof to fall

Few perling drops from her faire lampes of light;

The which she couering with her purple pall

Would have the passion hid, and vp arose withal.

(V.ix.50)

This final stanza of the canto makes clear that whatever we are now watching, it is no longer a trial but a play, and the tragic heroine is the defendant. Mercilla attempts to hide her cathartic tears with the mantle of her royal authority in a form of self-editing, but ultimately, she is reduced to a member of the audience at the very trial over which she is supposed to preside. Duessa cannot usurp Mercilla’s crown, but she successfully diverts attention and sympathy away from her rival. The only person in the courtroom unmoved by Duessa’s performance is Artegall himself. The knight of Justice is uniquely immune to the powers of tragedy, poetry, and even rhetoric, as his response to the Egalitarian Giant’s speech shows (V.ii.3). Pathos has no influence on him, but only because he lacks imagination and sympathy. The psychological response of Prince Arthur and Mercilla to Duessa’s tragic performance is a noble weakness, but it does indicate how very dangerous the power of artful speech can be. Spenser’s transformation of trial into tragedy in Mercilla’s court erases the generic distinction between fiction and forensic rhetoric based on the validity of truth claims. Zele himself is a performer too, the main character in a medieval morality play as legal debate plays out in a psychomachia of opposing forces (Authority, Law, Religion vs. Pittie, Regard, Daunger, Nobility and Grief, V.ix.44-45) for control of Mercilla’s judgment. Ironically it is Zele, as the embodiment of concern, affection, enthusiasm and even intent (particularly in Scottish usage in the sixteenth century, per the OED)⁵ that motivates the arrangement and presentation of the other walking ideas that argue for Duessa’s guilt or innocence. Mercilla’s court offers a vision of a show trial turned against itself, because it is a battle, not between truth and falsehood, but between rival performative passions. Mercilla is subsequently rendered incapable of her central task of carrying out Justice at the end of canto ix.⁶

Artegall’s lack of emotional response to the trial has uncomfortable implications for the judicial process. If Justice does not need demonstrations or stories, then why is a trial needed at all? In the court of Mercilla, we see how the entire premise of the trial as a fact-finding process is undermined. Is there any way to escape the ambiguities and potential for misreadings inherent in the examination of competing narratives? Let us return to the forecourt and the figure of Malfont, punished for libel and slander. These crimes rely on a notion of objective Truth that may be twisted or violated, the forensic idea of Truth. Poetry, however, is effective precisely because it is beyond legal definitions of facticity or correspondence to objective reality. Elizabeth I herself wrote poems she did not acknowledge or deny, possibly to avoid the responsibility of authorship imposed upon Mary at her trial. The specific libel Malfont makes against Mercilla is that she is also guilty of “forged guile” (V.ix.25). In making this charge, he creates a link of blame and responsibility between the authorities and those they accuse. Plato argued that poets (Gk. “makers”), should be expelled from the kallipolis (“beautiful city”) because they present falsehoods as truths.⁷ The real crime of the “Poet bad” may lie in acknowledging that authorities, even chroniclers and counselors, also create artful legitimating fictions and, in their turn, become Platonic liars too. This truth cannot be propagated, because it would undermine faith in the drama of courtroom justice. The taint of “forged guile” that clings to participation in fiction- making of all sorts must be shifted entirely onto Duessa and away from Mercilla, whose performances are paradoxically always and only true and consistent (“semper eadem”).

One cannot be a poet without invention, but what turns a good poet “bad” is not the fundamental dishonesty of fiction. Rather, it is the effect of his work. Malfont’s “bold speaches” are an affront to peace and quiet in the court of Mercilla; they stoke conflict. Zele, after his parade of witnesses does not successfully move Mercilla to judge against Duessa, finally comes out with a witness, Ate, the embodiment of discord (V.ix.47). For Spenser, poetry’s ostensible aesthetic and social value is in its creation of beauty and civic unity; certainly, The Faerie Queene itself is a celebration of divine authority as embodied in the virtuous monarch. His personal commitment to this goal eliminates any possibility of acceptance of freedom of speech as a moral good or political ideal. The narrator likens the poet’s tongue to a “welhed” (V.ix.26) or fountain (fons) that may flow in directions ultimately beyond his control, but nonetheless, he is responsible for the second- and third-order effects of his speech. There is no poetic license, in the legal sense, allowed for fiction. Duessa and Malfont are tragic spectacles who engage the sympathy of the audience. The fundamental tragedy of the poet, as Spenser presents him, is that poets must lie; it is in their nature. The “Poet bad” is not a poor craftsman, but someone whose fictions create social and political discord and pays the price accordingly. The Mercilla episode suggests that while speech cannot be free (it must be subject to controls and limits), at the same time it is ultimately uncontrollable because its persuasive powers escape any attempt to define or delimit its use. Like the trial itself, the emblematic punishment of Malfont is ineffective because its meaning is also ambiguous (“few could rightly read,” V.ix.26).⁸

John Milton alludes to The Faerie Queene several times in his anti-licensing tract Areopagitica (1644), ironically making a moral argument for the necessity of the very conflict that his “sage and serious Poet” Spenser finds dangerous.⁹ Milton uses Guyon of Book II as the exemplar of the “warfaring Christian”: “trial is by what is contrary” (Areop.). Both poets employ the metaphor of the fountain (fons) from Proverbs 18.4: “The words of a man's mouth are as deep waters, and the wellspring of wisdom as a flowing brook” (KJV).¹⁰ However, Milton draws the opposite lesson from Spenser. Instead of the legal solution of affixing and stilling the tongue, he contrasts the fountain of free-streaming speech to the “muddy pool of conformity and tradition” (Areop.). Milton is more blithe in his acceptance of the occasional BonMalfont as the price of retaining the Bon Font, whereas Spenser’s forecourt emblem reveals his alarm and suspicion toward poetic persuasion. Is Milton misreading the message of Spenser’s contrapasso? Both poets are particularly concerned with speech as represented in writing and disseminated through publications; the “font” is obviously a pun, and the graffiti over BonMalfont’s head enacts revision and editing, not of the poet’s words, but of his ethos. Spenser fears the power of disruptive new means of print dissemination outside legal control, while Milton sees it as an opportunity for Truth to win on the open field of ideas. This epic concept of Truth as a heroic warrior who cannot lose against the weaker power of lies underpins his willingness to allow a degree of freedom of speech greater than Spenser would ever support; we cannot look to Spenser for a traditionally liberal interpretation of press and speech freedoms. This is not because Spenser does not respect freedom of expression in Book V, but paradoxically because he understands its great power and risk. Milton is more confident in the ability of human logos not to be swayed by pathos. In the court of Mercilla, however, we see just how vulnerable human judgment is to the evocation of pity in the service of an attractive lie. The pathos of the good poet turned bad is that he ends up condemned by his own work.