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Thursday, December 29, 2005

Column: William Shakespeare, Esq.?

Was Shakespeare a lawyer?

At first blush, the suggestion sounds absurd – as though the great playwright had a secret day job. And yet, tucked away in the Bard’s many plays and sonnets, one can find dozens of legal terms, including pleadings, plaintiffs, defendants, appellants, and juries, to name just a few.

Shakespeare’s use of legal jargon has fueled a long-running debate over whether the dramatist practiced, or at least studied, law in his youth. As early as the 18th Century, critics began to remark on the abundance of legalisms in Shakespeare’s work, and from that observation spun an elaborate tale of how Shakespeare had been a student in London’s Inns of Court, and then an attorney’s clerk.

It’s a wonderful image – the young playwright poring over a dusty statute book: “2(b) or not 2(b): that is the section!” But unfortunately, there is scant evidence to support the theory that Shakespeare ever studied law. In fact, there is none.

Except – and here’s the thing – Shakespeare’s own words. For the man clearly knew his litigation. His writings are peppered with the language of the courts, as in Twelfth Night when Olivia assures the neurotic Malvolio, “Thou shalt be both the plaintiff and the judge of thine own cause.” Which, when you think about it, doesn’t sound so bad.

In Othello, the treacherous Iago complains that Othello “nonsuits my mediators” – to be nonsuited was the equivalent of having one’s complaint summarily dismissed. An Elizabethan 12(b)(6) motion, if you will.

More ham-handedly, the 46th Sonnet portrays a lawsuit between the author’s eye and his heart for possession of his beloved. Here we get both plead and plea; defendant; title; quest (short for inquest, or jury); impaneled; and verdict. The jury decides the matter by giving each party a moiety (an old Law French expression for a half interest): namely, the eye gets the beloved’s outward beauty while the heart gets her inner love. Yuck!

Even more familiar to modern ears is Portia’s statement, in the Merchant of Venice, that she and her fellow plotters shall be served with “interrogatories, and we will answer all things faithfully.” And again in King John, the king asks a trifle impatiently, “What earthy name to interrogatories can task the free breath of a sacred king?”

How, you might ask, did Shakespeare learn about ‘rogs? The hard way, it turns out, for he was served with interrogatories in the 1612 lawsuit of Mountjoy v. Bellot – back then, third party witnesses could be made to answer interrogatories. His signed answers are reportedly still available for inspection at the U.K. Public Records Office.

At times, Shakespeare even bandied about highly technical legal terms. In Henry VIII, for example, he refers to a writ of premunire (a corruption of Latin praemonere, to forewarn), which was a rare type of proceeding in the ecclesiastical courts. In Richard II, Bolingbroke complains “I am denied to sue my livery here” – a suit of livery being a lawsuit dating from feudal times, to compel the delivery of an estate that had been held in trust.

Intriguingly, certain lines in Shakespeare can only be understood in light of the leading cases of the day. For example, in Twelfth Night, Sir Toby Belch urges Sir Andrew Aguecheek to insult Cesario as follows: “If thou thou’st him thrice, it shall not be amiss.” The phrase is incomprehensible without knowing that, in Shakespeare’s day, prosecutors would use the “thou” form of address when delivering the most withering cross-examinations. The practice quickly became a verb – “to thou.”

Shortly before Twelfth Night was performed, Sir Walter Raleigh had been prosecuted in a notorious trial in which the Attorney General unleashed a volley of contemptuous thou’s against the defendant. Eventually, the prosecutor worked himself up to a slashing, though rather ridiculous, crescendo by crying: “I thou thee, thou traitor!” This was too ripe for satire for Shakespeare to resist. He quickly revised Twelfth Night to include the reference to thou’ing.

Shakespeare was no slouch at transactions, either, as we see in Pericles (one of his lesser-known plays), where the character Gower describes a search being made “with all due diligence.” Indeed, this might be the first recorded use of “due diligence.” This might also explain why the play is not better-known.

It was in the field of real property, however, that the Bard really excelled. Like his father before him, Shakespeare dabbled in real estate, and he naturally gravitated to the vocabulary of property law. In Hamlet, for example, Horatio refers to kings who “stand seized” of their lands – using seized (also spelled seised) in the legal sense of possession. Even today, standard form mortgages typically require the borrower to represent that he or she is “lawfully seised of the estate to be conveyed.”

The concept of holding title in fee simple cast a powerful spell on Shakespeare as a symbol of permanent ownership. In the Merry Wives of Windsor, one of the merry wives describes Falstaff as being held by the devil “in fee simple.” All’s Well That Ends Well features a character who would “sell the fee simple of his salvation” for a pittance. And the term appears in a number of other Shakespearian plays and sonnets.

In contrast to the fee simple, a lease, for Shakespeare, stood for all that was temporary and fleeting. Beauty, for example, was an estate that is merely “held in lease,” while in the 18th Sonnet, the Bard laments that “summer’s lease hath all too short a date” – a familiar concept for those with Hamptons rentals. In Henry VI, one character refers to having a “lease of life,” a metaphor that continues today as a “lease on life.”

And let’s not forget that when Hamlet famously picks up a skull as a prop for his soliloquy, it is “the skull of a lawyer.” Which is why our hero asks “[w]here be his quiddities now, his quillities, his cases, his tenures, and his tricks?” Quiddities and quillities, by the way, are Latin-based terms referring to the hair-splitting arguments that lawyers like to make. In the same passage, Hamlet imagines that the deceased lawyer might have specialized in real estate law “with his statutes, his recognizes, his fines, his double vouchers, his recoveries” – all of these being technical terms used in Shakespeare’s day for property transactions. One can only conclude that, for a Danish prince, Hamlet had an exceptionally good grasp of English law.

As a lover of wordplay, Shakespeare often made puns on legal jargon. In As You Like It, when three wrestlers are described as “proper young men of excellent growth and presence,” the fair Rosalind replies “with bills on their necks, ‘Be it known unto all men by these presents.’” These were the opening words of every deed poll – an ancient term for a binding covenant (such as a promissory note). Those words are still used today in many boilerplate documents, such as powers of attorney. The word presents in the phrase “by these presents” does not refer to gifts, but to the Latin phrase presens scriptum, “this writing.”

But wait – you say – wasn’t Shakespeare the guy who wanted to “kill all the lawyers”? No, actually. Shakespeare put those words into the mouth of Jack Cade who in Henry VI is plotting a rebellion against the Crown. The fact that such a treasonous fellow wants to get rid of lawyers is often interpreted as a pro-lawyer point: that lawyers are the protectors of traditional English liberties. That said, it seems likely that the line was calculated to get an appreciative snort from the audience, as it still does today.

In the final analysis, the important point is not whether Shakespeare was a lawyer, but the fact that he understood the law as a potent metaphor for life. Arguing about the extent of the great dramatist’s legal training is probably a waste of time, or as the Bard himself put it, “tis like the breath of an unfee’d lawyer.”

(This column originally appeared in the December 2005 issue of New York Law Journal Magazine).