The Bard & the Bar

The law hath not been dead, though it hath slept.

-- Measure for Measure

Four centuries later, moderns who celebrate the Bard's birthday often miss the vivid life that Shakespeare gave to the law in hundreds of legal puns, parodies and allusions. He never studied for the bar, but in that lavishly litigious era he could hardly escape learning about it. Elizabethans thronged their court rooms with far more acuity than to day's viewers of TV's Defenders; Shakespeare's father alone was involved in more than 50 lawsuits. If history's most absorbent author needed high legal drama, he had only to versify the royal squabbles in Holinshed's Chronicles. For low legal comedy, he had only to caricature England's primitive legal apparatus, from the demigod country justice (Shallow) to the pompous local constable (Elbow) to the wildly incompetent watchman (Seacoal).

Tasty Contract. Elizabethan literature roils with legalisms--Jonson's plays are filled with far more legalese than Shakespeare's--but the Bard's characters have as effective counsel as any. Henry IVs plotters do not just plan to split their loot (the realm); like law clerks, they aver that "our indentures tripartite are drawn" and "sealed interchangeably." In Sonnet 35, the poet acts against himself as a friend's defender: "Thy adverse party is thy advocate." In Sonnet 46, a fair lady is partitioned--her lover's heart the plaintiff, his eye the defendant. In Henry VI, Part II, Jack Cade promises to "make it a felony to drink small beer." Desdemona reproaches herself for having falsely "indicted" Othello and "suborn'd" her soul as a witness against him. In Venus and Adonis, the temptress sounds as if she were writing a contract: "Set thy seal-manual on my wax-red lips."

Himself a dabbler in real estate, Shakespeare was fascinated with property jargon. He often speaks of "purchase"--a then new method of acquiring land by other means than inheritance. Henry IV reminds his son that the crown that "in me was purchas'd, falls upon thee in a more fairer sort" (Shakespeare's way of saying that the king usurped the crown). In The Merry Wives of Windsor, the devil holds Sir John Falstaff in "fee-simple" (complete ownership). In Troilus and Cressida, even Greeks and Trojans talk in terms of "fee-form" (tenure without limit). "Lease" is used to express transience: life is a "lease of nature" (Macbeth); "summer's lease hath all too short a date" (Sonnet 18). As for "tenant," Hamlet's gravediggers argue that the most durable building is a gallows because it "outlives a thousand tenants."

Sophistry & Suicide. Today's lawyers, for all their own quibbling, might boggle at some of Shakespeare's, such as the hairsplitting debate of Ophelia's gravediggers over whether she deserves a Christian burial. "If I drown myself wittingly it argues an act; and an act hath three branches; it is, to act, to do, and to perform: argal, she drowned herself wittingly." But Shakespeare's audience instantly got the message: the sophistry is a satire on a real-life trial (Hales v. Petit) concerning a judge who also lost his reason and drowned himself near Canterbury. When the coroner's jury ruled felo-de-se (suicide), Judge Hale's estate was forfeited to the Crown. Countering in court, his widow roused a wild debate over whether Hale's felonious act of suicide preceded his death in point of time.

Chary of overdoing trial scenes, Shakespeare made them as airtight as a Supreme Court brief--perhaps most notably in The Merchant of Venice. At issue is Shylock's 3,000-ducat loan to Antonio, who borrowed the money to help Bassanio sue for Portia's hand. If Antonio fails to repay in three months, says Shylock:

Let the forfeit

Be nominated for an equal pound

Of your fair flesh, to be cut off and taken

In what part of your body pleaseth me.

Flesh v. Blood. Unable to pay on time, Antonio is haled before the Duke's court in Venice, where Shylock, refusing even 6,000 ducats, insists upon the letter of the bond, a pound of flesh to be sliced off Antonio's breast. The law's the law--the hard English common law with no mercy for a laggard debtor.

But learned Portia, disguised as a lawyer defending Antonio, offers a remedy in her "quality of mercy" speech--the unfolding principle of equity, which the English courts were more and more applying in Shakespeare's day to ease cases of special hardship. As Shylock stands over Antonio, knife in hand, Portia says:

Tarry a little; there is something else.

This bond doth give thee here no jot of blood;

The words expressly are "a pound of flesh" . . .

One drop of Christian blood, thy lands

and goods

Are, by the laws of Venice, confiscate

Unto the state of Venice.

At that, Shakespeare's audiences must have roared approval. And again when Shylock, an alien, is shown to be subject to another Venetian law: that an alien attempting a citizen's life must forfeit half his goods to the state, half to the victim. The play was boffo in a day when every Englishman had to be his own lawyer to survive, and if it seems dated now, it is still perhaps the most concise summary of justice triumphant over dry legalism that English literature has yet produced.

This file is automatically generated by a robot program, so reader's discretion is required.