Obiter Dicta: The Bard & the Bar

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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.