Shakespeare and the legal world

Marking the Bard’s anniversary year, Quentin Skinner examines Shakespeare’s links with the law and use of dramatic techniques through the lens of the classical theory of forensic eloquence

Shakespeare had many dealings with lawyers and the law, most of them arising from his role as a successful man of business. 

He bought a large house in Stratford as early as 1597, the contract for which was unusually complicated. He took out a share in the Globe theatre in 1599, to which he added a share in the Blackfriars theatre nine years later. He purchased a hundred acres of land near Stratford in 1602, and he bought up an interest in the local parish tithes in 1605. There was also a period when he seems to have been lucky to escape the clutches of the law. He is recorded in Bishopsgate in 1597 as having failed to pay his taxes, which may explain why he moved to Southwark in the following year. But there too he was recorded for non-payment of property taxes in 1598 and again in 1600.

There was also one occasion when Shakespeare appeared in a court of law. He was called as a witness in a trial in the Court of Requests in 1612, and his deposition under oath is the only moment when his speech was taken down in writing, so that we can as it were hear his voice. To understand how this came about, we need to go back to 1603, and thus to the time when he was writingOthello. He was lodging at this period with a family called Mountjoy on Silver Street in the Cripplegate district of London. The family wanted their apprentice to marry their daughter Mary, and the wedding duly took place in 1604. But in 1612 their former apprentice took out an action testifying that when he married Mary he had been promised a dowry, and that this had never been paid.

It was at this juncture that Shakespeare was called as a witness, and he deposed that he had been asked by Mary’s mother to help bring about the match. As he affirmed, ‘the said defendant’s wife did solicit and entreat this deponent to move and persuade the said Complainant to effect the said Marriage, and accordingly this deponent did move and persuade the complainant thereunto’. The speech is of course formulaic, but it conjures a remarkable picture of Shakespeare successfully inducing an initially reluctant young man to marry, and at just the time when he was writing about how Othello successfully prompted Desdemona to elope with him. To have been exhorted in this way by Shakespeare at the height of his literary powers must have been an extraordinary experience for a young apprentice, and it is perhaps not surprising that he duly took the plunge.

The Bard’s educational experience

How much did Shakespeare know about the law? He is not recorded as having received any legal training, although it is striking how much the law provides him with a rich store of metaphors. But he certainly knew a great deal about what was regarded at the time as the most effective procedure to follow in putting forward a case in court.

Shakespeare would have acquired the rudiments of this knowledge from the curriculum he followed at the King’s New School in Stratford, which he attended in the 1570s. The Elizabethan Grammar schools mainly taught Latin, and students were expected to put their linguistic skills to work in writing ‘themes’ and arguing pro and contra on a range of conventional quaestiones. The sources from which they learned how to argue on both sides of a question were the Roman rhetorical manuals, especially Cicero’s De inventione and the outline of the art of rhetoric known as the Rhetorica ad Herennium. Both these handbooks place an almost exclusive emphasis on judicial rhetoric, and from going through them line by line Shakespeare would have gained an intimate knowledge of the many rules they lay down about how to confront an adversary in court and persuade a judge of the merits of one’s case.

It seems well worth asking if this educational experience left any discernible traces on Shakespeare’s art. Two years ago I published a book entitled Forensic Shakespeare in which I tried to answer this question with a resounding affirmative. If we read the manuals that Shakespeare read, we can explain why a number of his scenes have a particular shape, and why a number of individual speeches conform to a certain pattern and arrangement. We can also account for some distinctive features of his vocabulary, especially his recurrent use of specific terms of praise and blame. For lack of a sufficiently detailed awareness of his use of judicial rhetoric, all these dimensions of meaning have tended to be missed or misunderstood.

Juridical, conjectural and negotiative

To illustrate this claim, I need to return for a moment to the rhetorical manuals, and in particular to their preoccupation with forensic speech. They all agree that there are three distinctively judicial forms of utterance, which they label the juridical, the conjectural and the negotiative. Among these, the most complex is said to be the juridical, in which all parties agree that some action has taken place, and the question is whether or not it was performed according to law and right. I have come to feel that this provides us with the most illuminating way of approaching Shylock’s opening claim in the trial scene in The Merchant of Venice. Shylock has a penal bond with conditional defeasance, which grants him a pound of Antonio’s flesh upon non-payment by a date that has passed. As Shylock declares, he is ‘doing no wrong’ in putting forward his case. ‘The pound of flesh which I demand of him/Is dearly bought, tis mine and I will have it./If you deny me, fie upon your Law.’ He takes himself to be acting wholly in accordance with law and right.

By contrast, you may find yourself in the much more difficult position of trying to defend an action that has clearly been performed in violation of law and right. Cicero advises that, if this is your predicament, you must try to show that, in spite of your offence, you can hope to offer an excuse that will acquit you of blame. This is what Lucrece manages to do after confessing that she unlawfully had sex with Tarquin. Crying out ‘O teach me how to make mine own excuse,’ she succeeds in purging her offence – to everyone’s satisfaction but her own – by explaining that she never consented but was raped.

Cicero goes on to warn of an even worse possibility. You may be obliged to admit that you acted with full intention and foresight, but in such a way as to lay yourself open to a serious penalty. This is Antonio’s predicament: he cannot fail to acknowledge that he willingly entered into the penal bond with Shylock, knowing that the forfeit would be a pound of flesh. Cicero advises that in such circumstances you have no alternative but to enter a straightforward plea for mercy, which you need to do at once and with as much eloquence as you can possibly summon up. This is exactly the rhetorical move that Portia makes when she opens the trial by delivering, on Antonio’s behalf, her celebrated paean to the quality of mercy. Critics have sometimes dismissed her famous speech as ‘a magnificent irrelevance’, but in fact she is following to the letter Cicero’s advice about how to negotiate this tightest of legal corners.

As we have seen, the second type of judicial plea was known to the rhetoricians as conjectural. Here the question at issue is whether or not some action took place, and if you are mounting such a case you must try to assemble as many confirmatory ‘circumstances’ as possible. Shakespeare relishes the many complications that can arise as a result. You may be able to persuade someone that an offence has been committed, but your allegedly confirmatory evidence may be wholly fabricated. This is the diabolical trick that Iago performs when he succeeds in convincing Othello of Desdemona’s faithlessness. Or you may find that your attempt to confirm a conjecture leaves your judge in a state of uncertainty. This is what happens to Hamlet when he tries, by re-enacting the circumstances of his father’s death, to convince Horatio that his father was murdered. We eventually learn that the ghost was telling the truth, but meanwhile Horatio feels unable to pronounce with any assurance on the significance of what he has witnessed. Or you may find that your attempted confirmation completely fails. This is Polonius’s fate when he tries to persuade Claudius that the cause of Hamlet’s seeming insanity is that he is ‘mad for love’. After considering the case, the king crushingly dismisses it. ‘Love? His affections do not that way tend.’

The third and last form of distinctively forensic speech is said to be negotiative. Here the question is about the correct interpretation of a legal document, and especially about whether the intentions of the writer should be considered, or merely the wording of the text. Shakespeare is not greatly interested in this type of dispute, although he includes a lengthy and technical speech from the Archbishop at the beginning of Henry V about whether the Law of Pharamond grants the kings of England any title to the crown of France. So it is somewhat ironic that, on the one occasion when Shakespeare makes this type of question central to the action of a play, the outcome is the most celebrated moment of legal drama that he ever wrote.

The moment is when Portia shows that Shylock is mistaken in believing that the only issue raised by his penal bond is whether the underlying contract was a valid one. She suddenly commands ‘I pray you, let me look upon the bond’ – giving notice that the question before the court is not merely ‘juridical’ but also ‘negotiative’ in character. This leads her to observe that ‘this bond doth give thee here no jot of blood’. She then points out that, if Shylock sheds any blood, he will be committing the crime – capital in the case of an alien like himself – of making an attempt on the life of a Venetian citizen. Shylock is left with no alternative but to withdraw his case.

Much to discover

Several of Shakespeare’s plays are clearly forensic in character. Most obviously, Measure for Measure and The Merchant of Venice both culminate in trial scenes. But critics have not I think paid sufficient attention to the fact that several other plays, although not centred on trials, are scarcely less forensic in their plotting and dialogue. As I have indicated, these include two of Shakespeare’s greatest tragedies, Hamlet and Othello, and the same is true of such later plays as Coriolanus and The Winter’s Tale. Much remains to be discovered about Shakespeare’s dramatic techniques by viewing them through the lens supplied by the classical theory of forensic eloquence.

Contributor Professor Quentin Skinner, Barber Beaumont Professor of the Humanities, Queen Mary University of London

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Quentin Skinner

Quentin Skinner is Professor of the Humanities at Queen Mary University of London, and was previously the Regius Professor of History at Cambridge.