Shakespeare and the legal world

31 May 2016 / Author(s): Quentin Skinner

Issue: June 2016 / Categories: Justice Matters , Law in Practice

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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
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. The best-known of his many works, The
Foundations of Modern Political Thought, was listed by the Times Literary Supplement in 1996 as
one of the hundred most influential books...