Obiter Dicta: 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."