“THOU POISONOUS BUNCH-BACK’D TOAD”:
THE ETHICS OF INSULTS ACROSS THE CENTURIES
Gregory R. Hanthorn1
Polonius – “What do you read, my lord?”
Hamlet – “Words, words, words.”
Hamlet, Act II, sc. 2
Lawyers care about words. As this piece is being written in 2016 the legal profession
increasingly is confronting insulting speech. Lawyers are hurling insults at judges, sometimes
including threatening behavior. 2 Sitting judges and judicial candidates are being called to
account for the ways they address parties before them and political opponents.3 And at least
1
© 2016 by Gregory R. Hanthorn, except as to quoted material. Any opinions set forth above are those of
the author and not of the law firm with which he is associated or any of its clients. This paper was prepared in
connection with a presentation at the American Bar Association Annual Meeting in San Francisco, California, on
August 5, 2016, and is a type of companion piece to an earlier paper by the same author prepared in conjunction
with the 2013 Annual Meeting of the American Bar Association, titled “Acting Professionally: A Dramatic Guided
Tour to the Perceptions of Law as a Profession as Shown in the Plays of William Shakespeare (How Ethical and
Professional Conduct Will Improve Upon Those).” In addition, the author gratefully acknowledges the inspiration
drawn from viewing over 100 live performances of the plays of William Shakespeare performed by The Atlanta
Shakespeare Company at the New American Shakespeare Tavern. The gratitude is only increased because attending
performances at the Tavern of Edward III in 2011 and Pericles, Prince of Tyre in 2014 allowed the author to cross
off his bucket list: “see one or more live performances of each of the 39 plays generally attributed to William
Shakespeare.”
2
See, e.g., Kathryn Nadro, “‘Maelstrom of Misconduct’ Generates Bevy of Bench Slaps,” posted January
19, 2016, on the page of the Ethics and Professionalism Committee of the ABA Section of Litigation (available
online at http://apps.americanbar.org/litigation/committees/ethics/articles/winter2016-0116-maelstrom-misconductgenerates-bevy-bench-slaps.html). Cases referenced include Zappin v. Comfort, (N.Y. Slip Op. 51399(u), Sept. 18,
2015) (attorney accusing judge repeatedly of lying, including stating in open court to prior judge, “I am tired of
these lies coming from you on the record.”); In re Moore, (Hearing Board of the Illinois Attorney Registration and
Disciplinary Comm’n No. 2015PR00076, August 26, 2015) (attorney sanctioned for voice messages to his client’s
father, including “You’re ugly, low class, ignorant. I’ll finish with you when he gets off. You’re demeaning your
son” and “You are a piece of garbage. All black people are alike. You’re slovenly, ignorant.”); and In re Dixon,
Case No. 33,713 (Supreme Court of New Mexico August 24, 2015) (public censure regarding attorney who, while a
member of the Disciplinary Board of the New Mexico bar, allegedly drove his car in a threatening manner to make a
judge believe the attorney was about to run him down).
3
In December of 2015, a superior court judge in Nome, Alaska, was reportedly “absolutely baffled” when
people took offense at his comments in open court, including “I’m sorry folks, but I can’t slap her around to make
her talk louder” (statement made during a domestic violence felony assault trial while the witness/victim was
testifying) and “Has anything good ever come out of drinking, except for sex with a pretty girl?” (statement to a
defendant during sentencing). Online articles, last accessed June 23, 2016, can be found at www.adn.com/crimejustice/article/nome-judge-admits-inappropriate-comments-recommended-censure/2015/12/11/
In May of 2016 a Georgia race for superior court judge included the challenger approving a flier with a
series of thumbs up/thumbs down comparisons between himself and his opponent. One of the rows had the
challenger with a thumbs up for “Christian” and a thumbs down for the Jewish incumbent. Online articles, last
accessed June 23, 2016, can be found at www.dailyreportonline.com/id=1202758265756/Judicial-CandidateApologizes-For-Flier-Giving-ThumbsDown-to-Opponents-Religion?slreturn=20160515095625
and
http://
/politics.blog.ajc.com/2016/05/21/jewish-judges-challenger-apologizes-for-criticizing-his-religion/
http://legal.blog.ajc.com/2016/05/20/judicial-watchdog-agency-issues-statement-in-contested-dekalb-election/
based upon anecdotal, ad hoc observation, the amount and virulence of insulting speech is
increasing. So what is the profession to do?
Understanding the nature, use, and development of insults is a logical first step. The
ability to communicate (and miscommunicate) immediately on the web, increased use of
“shaming” behavior via social media, and the acceleration and wide dissemination of speech
picked up by search engines present decidedly 21st century concerns. So of course this paper
will largely sidestep or ignore these 21st century innovations in order to focus upon the plays of
William Shakespeare and, in particular, what those plays reveal about insults, insulters, and the
insulted. But why step back to the 16th and early 17th centuries for guidance on the ethics and
professionalism of modern lawyers?
First, Shakespeare penned insults that are fun to read. Consider just a few examples:
“A whoreson beetle-headed, flap-ear’d knave”
“O gull! O dolt! As ignorant as dirt”
“[A] boil, a plague sore, an embossed carbuncle in my corrupted blood”
“But he has not so much brain as ear wax”
“Bolting-hutch of beastliness”4
Second, Shakespeare’s dramas provide an excellent lens through which to view human
behavior on any topic; the works “hold, as ‘twere, the mirror up to nature.”5And, in addition to
being a great insulter, Shakespeare was fascinated by law. “There was an unusual interest in
things legal in later Tudor times, and Shakespeare fully shared in that interest. It will have been
apparent, however, from his sketches of local justice and its officers that Shakespeare scrutinised
our traditional benefactors – our amateur justices – with a shrewd eye, and that the defects of the
system were fully apparent to him.”6 And because Shakespeare was Shakespeare, his outsider’s
view of our profession is more than skin deep. “[A] gesture in the plays that may at first look
like a simple allusion to a legal concept or practice often points to a deeper engagement with
how legal professionals organized the world, whether in relation to the law’s technical workings
or its underlying premises or its social effects. Even when Shakespeare seems merely to be
4
The five insults are drawn respectively from the plays The Taming of the Shrew, Othello, King Lear,
Troilus and Cressida, and Henry IV, part 1. Scores more can quickly be found. See, e.g., Nathalie Vienne-Guerrin,
Shakespeare’s Insults: A Pragmatic Dictionary (Bloomsbury 2016), John Lawrence, Shakespeare: The Bard’s Guide
to Abuses and Affronts (Perseus Books 2013), and Wayne F. Hill, Shakespeare’s Insults: Educating Your Wit
(Random House 1995). Should these books intimidate as too scholarly, one can dip into Patricia Crouch, The
Shakespeare Insults Coloring Book (Gumdrop Press 2016), and color along with thirty selected insults. Should the
reader/colorer prove too cheap to purchase a book or coloring book, one can hop online for any of the free lists of
Shakespeare insults gathered for the plucking. Some sites accessed randomly in the spring of 2016 include:
www.nosweatshakespeare.com/resources/shakespeare-insults/ and the links organized by play collected at
www.insults.net/html/shakespeare/ .
5
Hamlet, Act III, sc. 2. Throughout this paper references to Shakespeare are generally to the versions
available online at www.shakespeare-online.com/plays/, notwithstanding this author’s idiosyncratic preference (for a
variety of geeky reasons) for the texts published in The Applause First Folio of Shakespeare Comedies, Histories &
Tragedies In Modern Type (Neil Freeman Ed.) (Applause 2001).
6
George W. Keeton, Shakespeare and His Legal Problems, at 55-56 (A&C Black Ltd. 1930, reprinted by
The Lawbook Exchange Ltd. 2009).
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decorating his dialogue with some legal word he has picked up (no specialist he!), Shakespeare is
capable of great precision in his understanding of how law works and what it is for.”7
Third, the attitudes that Shakespeare expressed and reflected in his plays not only
demonstrate how insults were viewed in Elizabethan and Jacobean times, but also how insults
and those who hurl them (especially those involved in the law) continue to be viewed today.8
The seeds of the cure for the less nobler aspects of our professional reputations may well lie
buried in the soil of these early works.9
This paper and the accompanying presentation at the 2016 Annual Meeting of the
American Bar Association will focus upon four aspects of ethical and professionalism concerns,
along with frequent recourse to the curses: the insults presented in Shakespeare’s plays.10 First,
why do we care any more about what lawyers and judges say than about what any other speakers
utter? We have laws about defamation.11 So why have separate and stricter standards for the
speech of lawyers? Second, how does the difference between private and public space impact
the insulting nature of speech? And to the extent the private/public distinction matters, how has
20th/21st century technology eroded this difference by encouraging more and more formerly
private speech to be accessible to all? Third, what is the role of insulting speech within contexts
that are specifically juridicial or governmental? Finally, what can we see in Shakespeare’s work
about insults that the speakers do not even realize are insults?
Bradin Cormack, Martha Nussbaum, & Richard Strier, “Introduction,” pp. 1-18, in Shakespeare and the
Law: A Conversation Among Disciplines and Professions, at 2 (Eds. Bradin Cormack, Martha Nussbaum, &
Richard Strier) (University of Chicago Press 2013).
7
This ability to cross the centuries helps explain why Shakespeare’s canon is often discharged in legal
pedagogy. Characters and incidents from Shakespeare are common players in mock trial or moot court proceedings.
More inventively, “[a]t the McGill Law School in Canada, a ‘Shakespeare moot’ permits participants to draw only
on Shakespeare’s plays as precedents.” Kenji Yoshino, A Thousand Times More Fair: What Shakespeare’s Plays
Teach Us About Justice, at xiii (Harper Collins 2011).
8
As an aside, that last sentence demonstrates why William Shakespeare’s works live on and this author’s
writing is strictly ephemeral. The referenced sentence was lame when this author first used it in the 2013 ABA
piece “Acting Professionally: A Dramatic Guided Tour to the Perceptions of Law as a Profession as Shown in the
Plays of William Shakespeare (How Ethical and Professional Conduct Will Improve Upon Those)” and has not
improved with age.
9
In order to provide a more accessible “one stop shop,” multiple examples from the plays are quoted hin
the paper at length. These can be performed at local Continuing Legal Education events and are selected to provide
appropriate springboards for discussion by judges and practitioners with various levels of experience.
10
The live presentation at the Annual Meeting will feature live professional actors to explore the scenes, and
will also go beyond this paper to interact with series television and the movies, including “The Politicians” episode
from season three of the Norman Lear series Good Times (1974-1977) and a snippet from the movie “42: The True
Story of an American Legend” (Warner Bros. 2013).
The same basis that provides “privilege” in a defamation context—whether the uttered words are a
report of legal proceedings — can make the same uttered words subject to judicial sanction for contempt in the
presence of the court. That is, however protected from a defamation claim, a “privileged” insult delivered during the
course of legal proceedings can subject the insulter to sanctions for contempt.
11
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Lawyers Are More Than Just Public Speakers
So why does the speech of lawyers and judges come under special scrutiny? Before
traveling back 400 to 500 years to Shakespeare’s time, let’s begin with our profession’s own
view of its role. The Preamble to the American Bar Association’s Model Rule of Professional
Conduct provides that, “[a] lawyer, as a member of the legal profession, is a representative of
clients, an officer of the legal system and a public citizen having special responsibility for the
quality of justice.” ABA Model Rules of Professional Conduct, Preamble, para. 1. 12 A lawyer is
required to “use the law’s procedures only for legitimate purposes and not to harass or intimidate
others. . . . While it is a lawyer’s duty, when necessary, to challenge the rectitude of official
action, it is also a lawyer’s duty to uphold legal process.” ABA Model Rules of Professional
Conduct, Preamble, para. 5. Moreover, “[a]s a public citizen, a lawyer should seek improvement
of the law, access to the legal system, the administration of justice and the quality of service
rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate
knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and
work to strengthen legal education. In addition, a lawyer should further the public’s
understanding of and confidence in the rule of law and the justice system because legal
institutions in a constitutional democracy depend on popular participation and support to
maintain their authority. A lawyer should be mindful of deficiencies in the administration of
justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford
adequate legal assistance. Therefore, all lawyers should devote professional time and resources
and use civic influence to ensure equal access to our system of justice for all those who because
of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should
aid the legal profession in pursuing these objectives and should help the bar regulate itself in the
public interest.” ABA Model Rules of Professional Conduct, Preamble, para. 6.
Accordingly, “lawyers play a vital role in the preservation of society. The fulfillment of
this role requires an understanding by lawyers of their relationship to our legal system. The
Rules of Professional Conduct, when properly applied, serve to define that relationship.” ABA
Model Rules of Professional Conduct, Preamble, para 13. So the lawyer’s role in framing,
protecting, upholding, and explaining the system of ordered liberty is foundational. Our ethical
and professional obligation is to “further the public’s understanding of and confidence in the rule
of law and the justice system because legal institutions in a constitutional democracy depend on
popular participation and support to maintain their authority.” ABA Model Rules of Professional
Conduct, Preamble and Scope, para. 6. Conduct, including speech, that deliberately undermines
respect for the rule of law is thus unprofessional. Harassing and intimidating are out of bounds,
although “challenging[ing] the rectitude of official action” is not. ABA Model Rules of
Professional Conduct, Preamble, para 5.
The need to protect the judicial system is a recurrent theme in Shakespeare. In Measure
for Measure, 13 Duke Vincentio of Vienna realizes that he has allowed the law itself to become a
12
The Model Rules and offical commentary can be accessed online at the following website:
www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/model
_rules_of_professional_conduct_table_of_contents.html
13
The title of the play is multi-layered. In a 2009 conference Justice Stephen Breyer chose three plays for
his fellow panelists and him to focus upon: As You Like It, Hamlet, and Measure for Measure. When asked why
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bit of a scarecrow. Because was initially unwilling to enforce its harsher provisions, he is now
unwilling to do so lest the people despair at receiving harsh treatment from him or, worse yet,
turn upon him in rebellion. Justice Stephen Breyer summarizes the situation neatly: “It’s a
mess. Nobody’s doing the right thing. I mean the Duke is leaving, the whole city is poor,
they’re all running off to brothels, nobody gets married anymore, there are these little illegitimate
children running all over. Instead of getting married, Isabella goes to a convent, and, my
goodness, the Duke picks somebody who is really just terrible to run this city—Angelo, who
can’t control himself or anything else.”14 So the Duke decides to slip out of the dukedom and
leave Angelo in charge in an executive capacity with Escalus to serve alongside as a magistrate.
The Duke knows that Angelo will jump at the chance to enforce the least principle of the law to
the utmost. As the Duke explains to a Friar:
DUKE VINCENTIO
I have deliver’d to Lord Angelo,
A man of stricture and firm abstinence,
My absolute power and place here in Vienna,
And he supposes me travell’d to Poland;
or so I have strew’d it in the common ear,
And so it is received. Now, pious sir,
You will demand of me why I do this?
FRIAR THOMAS
Gladly, my lord.
DUKE VINCENTIO
We have strict statutes and most biting laws.
The needful bits and curbs to headstrong steeds,
Which for this nineteen years we have let slip;
Even like an o’ergrown lion in a cave,
That goes not out to prey. Now, as fond fathers,
Having bound up the threatening twigs of birch,
Only to stick it in their children’s sight
For terror, not to use, in time the rod
Becomes more mock’d than fear’d; so our decrees,
Dead to infliction, to themselves are dead;
And liberty plucks justice by the nose;
The baby beats the nurse, and quite athwart
Goes all decorum
Measure for Measure was on the list, Justice Breyer noted: “Probably it came into my mind because it seems to be
about law, but then I’m not certain it’s about law because when I read it actually I read the word ‘measure’ as not
‘measure for measure’ but proportion, and all these people are out of proportion.” Transcribed comments of Justice
Stephen Breyer in “Roundtable, Shakespeare’s Laws: A Justice, a Judge, a Philosopher, and an English Professor,”
pp. 301-22, in B. Cormack, M. Nussbaum, & R. Strier, Shakespeare and the Law: A Conversation Among
Disciplines and Professions, supra, at 302 (transcribed from University of Chicago Law School presentation, May
2009).
Stephen Breyer in “Roundtable, Shakespeare’s Laws: A Justice, a Judge, a Philosopher, and an English
Professor,” pp. 301-22, in B. Cormack, M. Nussbaum, & R. Strier, Shakespeare and the Law: A Conversation
Among Disciplines and Professions, supra, at 302.
14
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FRIAR THOMAS
It rested in your grace
To unloose this tied-up justice when you pleased:
And it in you more dreadful would have seem’d
Than in Lord Angelo.
DUKE VINCENTIO
I do fear, too dreadful:
Sith ‘twas my fault to give the people scope,
‘Twould be my tyranny to strike and gall them
For what I bid them do: for we bid this be done,
When evil deeds have their permissive pass
And not the punishment. Therefore indeed, my father,
I have on Angelo imposed the office;
Who may, in the ambush of my name, strike home,
And yet my nature never in the fight
To do in slander. And to behold his sway,
I will, as ‘twere a brother of your order,
Visit both prince and people: therefore, I prithee,
Supply me with the habit and instruct me
How I may formally in person bear me
Like a true friar. More reasons for this action
At our more leisure shall I render you;
Only, this one: Lord Angelo is precise;
Stands at a guard with envy; scarce confesses
That his blood flows, or that his appetite
Is more to bread than stone: hence shall we see,
If power change purpose, what our seemers be.
Measure for Measure, Act I, sc. 3. At first Duke Vincentio descibes Angelo to the Friar as “[a]
man of stricture and firm abstinence.” Later, however, the Duke tells the Friar that Angelo is a
“precise” man who “scarce confesses [t]hat his blood flows, or that his appetite is more to bread
than stone.” That is, the Duke describes Angelo as a man unwilling to admit that he is subject to
human temptations or pleasures. And because Angelo must enforce the laws that Vincentio was
unwilling to enforce himself, Vincentio is content with Angelo’s bloodless, scarcely human,
apparent asceticism. Vincentio’s closing remark to the Friar, however, warns that Angelo may
not live up to his public perception: “[H]ence shall we see, [i]f power change purpose, what our
seemers be.” It seems the Duke may be aware that once enrobed with power Angelo will no
longer “seem” to be quiet, abstemious, and prudish. In short, the Duke “does not completely
trust Angelo, whose cold rectitude might be hiding corruption.”15 And, as the play progresses,
Angelo quickly abuses his power, only to be thwarted by the return of the Duke in Act V.
15
Craig Bernthal, The Trial of Man: Christianity and Judgment in the World of Shakespeare, at 132 (ISI
Books 2003). Accord G.W. Keeton, Shakespeare and His Legal Problems, supra, at 93 (“But the Duke, from his
observation of human nature, is not at all sure that this [precision and lack of sensual appetite] is Angelo’s true
character, force adds: ‘Hence we shall see,// If power change purpose, what our seemers be.’”).
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The insult that Angelo sees himself as above temptation and in nearly godly terms,16
delivered outside of Angelo’s presence, seems to underscore Angelo’s fitness for the task of
reinvigorating the “strict statutes and most biting laws” that the Duke had let slide.
Insults in Private as Opposed to Insults in Public
Where words are spoken matters, in Shakespeare’s time and our own. In Henry IV, part
1 and Henry IV, part 2, a series of conversations take place between Falstaff and Prince Hal
(later to become King Henry V). These insult-laden exchanges move from a private exchange in
an inn, to a fairly private exchange when Falstaff and Hal literally exchange roles, to a final,
public exchange.
The first exchange of insults establishes that an easy camaraderie exists between the two:
FALSTAFF
Whew! A plague upon you all! Give me my horse, you
rogues; give me my horse, and be hanged!
PRINCE HENRY
Peace, ye fat-guts! lie down; lay thine ear close
to the ground and list if thou canst hear the tread
of travellers.
FALSTAFF
Have you any levers to lift me up again, being down?
‘Sblood, I’ll not bear mine own flesh so far afoot
again for all the coin in thy father’s exchequer.
What a plague mean ye to colt me thus?
PRINCE HENRY
Thou liest; thou art not colted, thou art uncolted.
FALSTAFF
I prithee, good Prince Hal, help me to my horse,
good king’s son.
PRINCE HENRY
Out, ye rogue! shall I be your ostler?
FALSTAFF
Go, hang thyself in thine own heir-apparent
garters! If I be ta’en, I’ll peach for this. An I
have not ballads made on you all and sung to filthy
tunes, let a cup of sack be my poison: when a jest
is so forward, and afoot too! I hate it.
Henry IV, part 1, Act II, sc.2. And yet, even here the respective roles of Falstaff (a knight) and
Hal (King Henry IV’s son) are never far from the surface. Falstaff calls Hal “Prince Hal,” and
The reference to Angelo’s unwillingness to express a preference for bread over stones is an allusion to
Jesus’s temptation in the wilderness. Jesus was tempted by Satan to turn stones into bread. See Matthew 4:3-4;
Luke 4:3-4. Vincentio’s insult here is sharp. He implies that in Angelo’s own view Angelo, unlike Jesus, would
not even have been tempted by the mere proffering of bread; he’d just as soon have dined on the stones.
16
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“good king’s son.” But he is also able, without any immediate negative consequence, to berate
his friend. After a brief insult from Hal (“Out, ye rogue! shall I be your ostler?”), Falstaff
responds with words that could have serious consequences in public: “Go, hang thyself in thine
own heir-apparent garters!” In short, Falstaff wishes ill — hanging — upon the person he
recognizes as the heir apparent. This utterance at least borders on treason. Still, the banter
between Hal is slangy, affectionate, boisterous, and evenly balanced between the two. Hal
continually urges that Falstaff is fat, and Falstaff continually implies that Hal is just a spoiled son
of a distant king. Their speech remains between them.
In a subsequent scene, the situation changes slightly. This time the exchange takes place
in an inn and the Hostess observes. Hal has been summoned to appear before his father on the
following day, and Falstaff agrees to help coach Hal for the appearance. Falstaff pretends to be
Hal while Hal pretends to be his own father, Henry IV. In their humorously assumed characters,
Falstaff (at first as Hal and then as King Henry IV) praises Falstaff while Hal (first as himself
and then as Henry IV) insults him.
The exchange begins with amiable banter but, as Hal slowly seems to be affected by the
public setting (the court) and the public role (the king) that he is playing, his speech and his
reactions to Falstaff’s speech begin to change. While Falstaff is playing the king, he gleefully
teases and insults Hal about dangerous subjects, including Hal’s parentage and his and his
father’s looks: “That thou art my son, I have partly thy mother’s word, partly my own opinion,
but chiefly a villanous trick of thine eye and a foolish-hanging of thy nether lip, that doth warrant
me.” And Falstaff praises himself. Notice the change when it is Hal’s turn to play the king.
First Hal humorously berates Falstaff, once again mocking Falstaff’s girth and age (“[T]here is a
devil haunts thee in the likeness of an old fat man; a tun of man is thy companion. Why dost thou
converse with that trunk of humours, that bolting-hutch of beastliness, that swollen parcel of
dropsies, that huge bombard of sack, that stuffed cloak-bag of guts, that roasted Manningtree ox
with the pudding in his belly, that reverend vice, that grey iniquity, that father ruffian, that vanity
in years?”), but then after an impassioned defense by Falstaff-as-Hal of Falstaff’s character and a
plea that Falstaff not be banished from the prince’s company, though all the world else be
banished, Hal’s regal reply is as surprising as it is curt. Watch the scene play out:
FALSTAFF
Well, thou wert be horribly chid tomorrow when thou
comest to thy father: if thou love me, practise an answer.
PRINCE HENRY
Do thou stand for my father, and examine me upon the
particulars of my life.
FALSTAFF
Shall I? content: this chair shall be my state,
this dagger my sceptre, and this cushion my crown.
PRINCE HENRY
Thy state is taken for a joined-stool, thy golden
sceptre for a leaden dagger, and thy precious rich
crown for a pitiful bald crown!
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FALSTAFF
Well, an the fire of grace be not quite out of thee,
now shalt thou be moved. Give me a cup of sack to
make my eyes look red, that it may be thought I have
wept; for I must speak in passion, and I will do it
in King Cambyses’ vein.
PRINCE HENRY
Well, here is my leg.
FALSTAFF
And here is my speech. Stand aside, nobility.
HOSTESS
O Jesu, this is excellent sport, i’ faith!
FALSTAFF
Weep not, sweet queen; for trickling tears are vain.
HOSTESS
O, the father, how he holds his countenance!
FALSTAFF
For God’s sake, lords, convey my tristful queen;
For tears do stop the flood-gates of her eyes.
HOSTESS
O Jesu, he doth it as like one of these harlotry
players as ever I see!
FALSTAFF
Peace, good pint-pot; peace, good tickle-brain.
Harry, I do not only marvel where thou spendest thy
time, but also how thou art accompanied: for though
the camomile, the more it is trodden on the faster
it grows, yet youth, the more it is wasted the
sooner it wears. That thou art my son, I have
partly thy mother’s word, partly my own opinion,
but chiefly a villanous trick of thine eye and a
foolish-hanging of thy nether lip, that doth warrant
me. If then thou be son to me, here lies the point;
why, being son to me, art thou so pointed at? Shall
the blessed sun of heaven prove a micher and eat
blackberries? a question not to be asked. Shall
the sun of England prove a thief and take purses? a
question to be asked. There is a thing, Harry,
which thou hast often heard of and it is known to
many in our land by the name of pitch: this pitch,
as ancient writers do report, doth defile; so doth
the company thou keepest: for, Harry, now I do not
speak to thee in drink but in tears, not in
pleasure but in passion, not in words only, but in
woes also: and yet there is a virtuous man whom I
have often noted in thy company, but I know not his name.
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PRINCE HENRY
What manner of man, an it like your majesty?
FALSTAFF
A goodly portly man, i’ faith, and a corpulent; of a
cheerful look, a pleasing eye and a most noble
carriage; and, as I think, his age some fifty, or,
by’r lady, inclining to three score; and now I
remember me, his name is Falstaff: if that man
should be lewdly given, he deceiveth me; for, Harry,
I see virtue in his looks. If then the tree may be
known by the fruit, as the fruit by the tree, then,
peremptorily I speak it, there is virtue in that
Falstaff: him keep with, the rest banish. And tell
me now, thou naughty varlet, tell me, where hast
thou been this month?
PRINCE HENRY
Dost thou speak like a king? Do thou stand for me,
and I’ll play my father.
FALSTAFF
Depose me? if thou dost it half so gravely, so
majestically, both in word and matter, hang me up by
the heels for a rabbit-sucker or a poulter’s hare.
PRINCE HENRY
Well, here I am set.
FALSTAFF
And here I stand: judge, my masters.
PRINCE HENRY
Now, Harry, whence come you?
FALSTAFF
My noble lord, from Eastcheap.
PRINCE HENRY
The complaints I hear of thee are grievous.
FALSTAFF
Sblood, my lord, they are false: nay, I’ll tickle
ye for a young prince, i’ faith.
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PRINCE HENRY
Swearest thou, ungracious boy? henceforth ne’er look
on me. Thou art violently carried away from grace:
there is a devil haunts thee in the likeness of an
old fat man; a tun of man is thy companion. Why
dost thou converse with that trunk of humours, that
bolting-hutch of beastliness, that swollen parcel
of dropsies, that huge bombard of sack, that stuffed
cloak-bag of guts, that roasted Manningtree ox with
the pudding in his belly, that reverend vice, that
grey iniquity, that father ruffian, that vanity in
years? Wherein is he good, but to taste sack and
drink it? wherein neat and cleanly, but to carve a
capon and eat it? wherein cunning, but in craft?
wherein crafty, but in villany? wherein villanous,
but in all things? wherein worthy, but in nothing?
FALSTAFF
I would your grace would take me with you: whom
means your grace?
PRINCE HENRY
That villanous abominable misleader of youth,
Falstaff, that old white-bearded Satan.
FALSTAFF
My lord, the man I know.
PRINCE HENRY
I know thou dost.
FALSTAFF
But to say I know more harm in him than in myself,
were to say more than I know. That he is old, the
more the pity, his white hairs do witness it; but
that he is, saving your reverence, a whoremaster,
that I utterly deny. If sack and sugar be a fault,
God help the wicked! if to be old and merry be a
sin, then many an old host that I know is damned: if
to be fat be to be hated, then Pharaoh’s lean kine
are to be loved. No, my good lord; banish Peto,
banish Bardolph, banish Poins: but for sweet Jack
Falstaff, kind Jack Falstaff, true Jack Falstaff,
valiant Jack Falstaff, and therefore more valiant,
being, as he is, old Jack Falstaff, banish not him
thy Harry’s company, banish not him thy Harry’s
company: banish plump Jack, and banish all the world.
PRINCE HENRY
I do, I will.
- 11 -
Henry IV, part 1, Act II, sc. 4. In performance, the concluding “I do, I will” is invariably
chilling. While Falstaff and Hal began by making fun of each other and of King Henry IV,
something has happened to Hal as he has settled into the role of the king, even in playacting.
And that something does not bode well for Falstaff.
The final Hal and Falstaff exchange is both painful and public. In the final scene of
Henry IV, part 2, Hal has become King Henry V, and Falstaff has joined the crowd waiting for
the king to pass by. Falstaff has dragged along a neighbor or three (including one of Falstaff’s
creditors/hosts, Master Robert Shallow), bragging that the king will no doubt greet Falstaff like
an old friend. This exchange follows:
FALSTAFF
Stand here by me, Master Robert Shallow; I will
make the king do you grace: I will leer upon him as
a’ comes by; and do but mark the countenance that he
will give me.
PISTOL
God bless thy lungs, good knight.
FALSTAFF
Come here, Pistol; stand behind me. O, if I had had
time to have made new liveries, I would have
bestowed the thousand pound I borrowed of you. But
‘tis no matter; this poor show doth better: this
doth infer the zeal I had to see him.
SHALLOW
It doth so.
FALSTAFF
It shows my earnestness of affection,--
SHALLOW
It doth so.
FALSTAFF
My devotion,--
SHALLOW
It doth, it doth, it doth.
FALSTAFF
As it were, to ride day and night; and not to
deliberate, not to remember, not to have patience
to shift me,--
SHALLOW
It is best, certain.
FALSTAFF
But to stand stained with travel, and sweating with
desire to see him; thinking of nothing else,
putting all affairs else in oblivion, as if there
were nothing else to be done but to see him.
- 12 -
PISTOL
‘Tis ‘semper idem,’ for ‘obsque hoc nihil est:’
‘tis all in every part.
SHALLOW
Tis so, indeed.
PISTOL
My knight, I will inflame thy noble liver,
And make thee rage.
Thy Doll, and Helen of thy noble thoughts,
Is in base durance and contagious prison;
Haled thither
By most mechanical and dirty hand:
Rouse up revenge from ebon den with fell
Alecto’s snake,
For Doll is in. Pistol speaks nought but truth.
FALSTAFF
I will deliver her.
[[Shouts within, and the trumpets sound]]
PISTOL
There roar’d the sea, and trumpet-clangor sounds.
[[Enter KING HENRY V and his train, the Lord Chief-Justice among them]]
FALSTAFF
God save thy grace, King Hal! my royal Hal!
PISTOL
The heavens thee guard and keep, most royal imp of fame!
FALSTAFF
God save thee, my sweet boy!
KING HENRY IV
My lord chief-justice, speak to that vain man.
LORD CHIEF-JUSTICE
Have you your wits? know you what ‘tis to speak?
FALSTAFF
My king! my Jove! I speak to thee, my heart!
- 13 -
KING HENRY IV
I know thee not, old man: fall to thy prayers;
How ill white hairs become a fool and jester!
I have long dream’d of such a kind of man,
So surfeit-swell’d, so old and so profane;
But, being awaked, I do despise my dream.
Make less thy body hence, and more thy grace;
Leave gormandizing; know the grave doth gape
For thee thrice wider than for other men.
Reply not to me with a fool-born jest:
Presume not that I am the thing I was;
For God doth know, so shall the world perceive,
That I have turn’d away my former self;
So will I those that kept me company.
When thou dost hear I am as I have been,
Approach me, and thou shalt be as thou wast,
The tutor and the feeder of my riots:
Till then, I banish thee, on pain of death,
As I have done the rest of my misleaders,
Not to come near our person by ten mile.
For competence of life I will allow you,
That lack of means enforce you not to evil:
And, as we hear you do reform yourselves,
We will, according to your strengths and qualities,
Give you advancement. Be it your charge, my lord,
To see perform’d the tenor of our word. Set on.
[[Exeunt KING HENRY V, &c]]
Henry IV, part 2, Act V, sc. 5. The “banish plump Jack, and banish all the world.// I do, I will.”
premonition of Henry IV, part 1 has now come to pass. While Falstaff remains physically in
King Henry’s presence (at least until the King and company ride off a few lines later), he has
already been banished. Before, Falstaff and Hal bantered constantly. But “Hal confronts
Falstaff here with a deafness more aggressive and absolute than any that the other has power to
display — he will not permit him even to speak.”17
In this scene, Falstaff receives his harshest rebuke from the former Prince Hal, and it
comes in response to the mildest nudge. Falstaff has addressed King Henry V as “my sweet
boy,” and has only done so after acknowledging Hal as “thy grace, King Hal, my royal Hal!”
Yet this time the speech is public. This time Hal actually is King Henry V. And this time the
improper familiarity, right down to the ownership claim embedded in “my royal Hal,” will not go
17
Joseph A. Porter, The Drama of Speech Acts: Shakespeare’s Lancastrian Tetralogy, at 109 (University
of California Press 1979).
- 14 -
unpunished. Speech that was fine when only between Hal and Falstaff, or when playacting in
front of a very limited audience (the Hostess), will not be tolerated.18
What does any of this mean in America in the 21st century? First, some of the examples
of insults that have led to judicial sanction arise from the increasingly public nature of what was
once private speech. The angry lawyer of the 1950s who returned from a brutal exchange with a
judge and ranted at colleagues in the privacy of the firm’s offices now has access to the internet
and social media. Instead of noting that “Judge Greg Hanthorn” is a jerk to one or two people,
our angry lawyer can now post a comment or two on Facebook and speak to thousands.
Similarly, if the hypothetical lawyer has an easy, bantering relationship with the
hypothetical Judge G. Hanthorn, back and forth “speech” via emails can quickly be taken out of
context and appear to be far more insulting than originally intended. There still is no “sarcasm”
font, and no number of winking emojis can replace one-on-one contact for building context.
In either case, the ease with which slang and slanging can now be forwarded, subjected to
inadvertent reply all, or otherwise communicated well beyond the intended audience changes the
nature of the communication.
But not all private speech is devoid of harm. Within the legal profession speech is
subject to review and sanction. And sanctionable speech is not limited to “in court” utterances,
speech in connection with legal proceedings irrespective of the situs, or words in documents
formed for clients. For example, public utterances that baselessly call into question the
reputation of the judiciary may be examined.19 And Model Rule 8.4 may soon be expanded to
conduct that in any way is “related to the practice of law.”20
Within the context of the two Henry IV plays Hal also states that he “knows [Falstaff] not” as a way of
making the point that Hal is no longer the playing wastrel, but is now the King of England. Old things have passed
away and new things have come. Having played at being a rotter, Hal now intends to shine all the greater and
astound expectations. As Hal had explained in his soliloquy ending Act I, scene 2 of Henry IV, part 2: “So, when
this loose behavior I throw off// And pay the debt I never promised,// By how much better than my word I am,// By
so much shall I falsify men’s hopes;// And like bright metal on a sullen ground,//My reformation, glittering o’er my
fault,// Shall show more goodly and attract more eyes//Than that which hath no foil to set it off.// I’ll so offend, to
make offence a skill;// Redeeming time when men think least I will.” For a critique of Hal’s argument here as
internally contradictory, see Stephen Greenblatt, Shakespeare Negotiations, at 41 (University of California Press
1988) (“We are continually reminded that Hal is a ‘juggler,’ a conniving hypocrite, and that the power he both
serves and comes to embody is glorified usurpation and theft. . . . Hal’s justification of himself threatens to fall
away at every moment into its antithesis. ‘By how much better than my word I am,’ Hal declares, ‘By so much shall
I falsify men’s hopes’ (1.2.210-11). To falsify men’s hopes is to exceed their expectations, and it also to disappoint
their expectations, to deceive men, to turn hopes into fictions, to betray.”).
18
For a general overview, see Hal. R. Lieberman, “Should Lawyers be Free to Publicly Excoriate Judges?”
in 25 Hofstra Law Review, pp. 785-97 (1997), available online via Law Commons at
http://scholarlycommons.law.hofstra.edu/hlr/vol25/iss3/5?utm_source=scholarlycommons.law.hofstra.edu%2Fhlr%
2Fvol25%2Fiss3%2F5&utm_medium=PDF&utm_campaign=PDFCoverPages
19
During the Annual Meeting at which this presentation is being made, the American Bar Association’s
House of Delegates is scheduled to debate and vote upon Resolution 109, proposed amendments to Model Rule of
Professional Conduct 8.4.
As of June 23, 2016, the Resolution and Report may be viewed at
www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_model_rule%208_4_comme
nts/draft_redline_04_12_2016.authcheckdam.pdf See infra at nn. 28-29 and accompanying text.
20
- 15 -
So what can we find in Shakespeare’s works that illustrates speech that, while ostensibly
of a private nature illustrates that even one-to-one private insulting speech, acceptable in some
contexts, is unacceptable in others? Two examples stand out. The opening scene of Othello and
short scenes outside of Shylock’s presence in The Merchant of Venice spring to mind.
Othello opens with Roderigo and Iago in conversation about Othello, a general in Venice
who is a racial outsider. “The play of Othello as a whole is profoundly concerned with
thematizing and critiquing the rhetorical techniques by which the world is made knowable and
‘probable’ in language.”21 And note how Iago uses his own and Roderigo’s language:
IAGO
For, sir,
It is as sure as you are Roderigo,
Were I the Moor, I would not be Iago:
In following him, I follow but myself;
Heaven is my judge, not I for love and duty,
But seeming so, for my peculiar end:
For when my outward action doth demonstrate
The native act and figure of my heart
In compliment extern, ‘tis not long after
But I will wear my heart upon my sleeve
For daws to peck at: I am not what I am.
RODERIGO
What a full fortune does the thicklips owe
If he can carry’t thus!
IAGO
Call up her father,
Rouse him: make after him, poison his delight,
Proclaim him in the streets; incense her kinsmen,
And, though he in a fertile climate dwell,
Plague him with flies: though that his joy be joy,
Yet throw such changes of vexation on’t,
As it may lose some colour.
RODERIGO
Here is her father’s house; I’ll call aloud.
IAGO
Do, with like timorous accent and dire yell
As when, by night and negligence, the fire
Is spied in populous cities.
RODERIGO
What, ho, Brabantio! Signior Brabantio, ho!
Lorna Hutson, “‘Lively Evidence’: Legal Inquiry and the Evidentia of Shakespearean Drama,” pp. 72-97,
B. Cormack, M. Nussbaum, & R. Strier, Shakespeare and the Law: A Conversation Among Disciplines and
Professions, supra, at 87 (citing generally Joel B. Altman, The Improbability of Othello: Rhetorical Anthropology
and Shakespearean Selfhood (University of Chicago Press 2010)).
21
- 16 -
IAGO
Awake! what, ho, Brabantio! thieves! thieves! thieves!
Look to your house, your daughter and your bags!
Thieves! thieves!
[[BRABANTIO appears above, at a window.]]
BRABANTIO
What is the reason of this terrible summons?
What is the matter there?
RODERIGO
Signior, is all your family within?
IAGO
Are your doors lock’d?
BRABANTIO
Why, wherefore ask you this?
IAGO
‘Zounds, sir, you’re robb’d; for shame, put on
your gown;
Your heart is burst, you have lost half your soul;
Even now, now, very now, an old black ram
Is topping your white ewe. Arise, arise;
Awake the snorting citizens with the bell,
Or else the devil will make a grandsire of you:
Arise, I say.
Othello, Act I, sc. 1. Iago is describing the new general, Othello, to his fellow solider, Roderigo.
Iago’s insults regarding Othello in this scene are fairly well known. “Thieves!”, “an old black
ram . . . topping your white ewe” and “the devil” appear in this short scene as Iago seeks to
inflame Brabantio, Desdemona’s father. But notice who actually utters the first insult in this
excerpt above – “thicklips” – for before Iago begins his attack upon Othello, Iago has already
sussed out from Roderigo’s contemptuous slur that Roderigo will not interfere with Iago’s plan
of turning Brabantio against the general. In this instance, the lesser known, private insult of
Roderigo reveals his character and marks him as a willing accomplice. 22 The private,
unthinking, unexamined remark helps lead to enormous consequence.
Coleridge nails Roderigo’s character while describing the beginning of Othello: “Admirable is the
preparation, so truly and peculiarly Shakespearian, in the introduction of Roderigo, as the dupe on whom Iago shall
first exercise his art, and in so doing display his own character. Roderigo, without any fixed principle, but not
without the moral notions and sympathies with honour, which his rank and connections had hung upon him, is
already well fitted and predisposed for the purpose; for the very want of character and strength of passion, like wind
loudest in an empty house, constitute his character.” S.T. Coleridge, Notes and Lectures Upon Shakespeare and
Some of the Old Poets and Dramatists (Vol. 1), supra, at 257.
22
- 17 -
Similarly, in The Merchant of Venice the caustic remarks of the Salads – Salarino, and
Salanio23 – reveal a dark undercurrent of hatred for Shylock as a religious outsider. Notice the
nominal Christians’ insider speech when describing Shylock’s reaction to news that his daughter
Jessica has eloped with Lorenzo:
SALARINO
Why, man, I saw Bassanio under sail:
With him is Gratiano gone along;
And in their ship I am sure Lorenzo is not.
SALANIO
The villain Jew with outcries raised the duke,
Who went with him to search Bassanio’s ship.
SALARINO
He came too late, the ship was under sail:
But there the duke was given to understand
That in a gondola were seen together
Lorenzo and his amorous Jessica:
Besides, Antonio certified the duke
They were not with Bassanio in his ship.
SALANIO
I never heard a passion so confused,
So strange, outrageous, and so variable,
As the dog Jew did utter in the streets:
‘My daughter! O my ducats! O my daughter!
Fled with a Christian! O my Christian ducats!
Justice! the law! my ducats, and my daughter!
A sealed bag, two sealed bags of ducats,
Of double ducats, stolen from me by my daughter!
And jewels, two stones, two rich and precious stones,
Stolen by my daughter! Justice! find the girl;
She hath the stones upon her, and the ducats.’
SALARINO
Why, all the boys in Venice follow him,
Crying, his stones, his daughter, and his ducats.
Merchant of Venice, Act II, sc. 8. Shylock is described as a “villain” and a “dog,” and his cries
at his loss are used to pile scorn upon him in abstentia.24 And notice that the next generation is
This author is not sure where the theatrical tradition of calling Salanio and Salarino “the Salads”
originated. For a brief discussion, see Hugh Hunt, Old Vic Prefaces: Shakespeare and the Producer, at 157-58
(1954, reprinted in Routledge Library Edition 2005).
23
As one example, the repeated references to “double ducats” and “two stones” are made clear in many
performances to be intended by the Salads as references to testicles, indicating that Shylock has been emasculated
by his loss. While it is sometimes far too easy to find bawdy references in Shakespeare that might not really exist
(see generally, e.g., Eric Partridge, Shakespeare’s Bawdy (Routledge Press, 4th ed. 2001)), these references (and the
stage behavior that can accompany them) fit neatly within the structure of the play.
24
- 18 -
learning scorn as well as “all the boys in Venice follow him,// Crying, his stones, his daughter,
and his ducats.”
What makes the private insults from Othello and Merchant different from those of Henry
IV, part 1? First, the insults between Falstaff and Hal are part of give and take. Although Hal
has the better prospects, as a knight Falstaff is not a complete outsider to court life. They
exchange verbal blows as friends. In contrast, Iago and the Salads deliberately turn on the
outsider – due to race or religion, depending upon the play – and insult in order to wound. The
insults are designed to keep outsiders outside, while reminding insiders of their shared special
status as insiders. Iago jumps into action to goad Desdemona’s father into arresting Othello.25
The Salads delight in Shylock’s misery simply from the joy of seeing him suffer. And, as the
unthinking racial slur of Roderigo and the actions of the children described by the Salads both
demonstrate, hardening attitudes of hatred expressed in unchecked speech help propagate hateful
actions. Second, and perhaps most significantly, the insults here, unlike those in the Hal/Falstaff
scenes, spring from hate. Iago moves forward with free-floating hate. While he soliloquizes
multiple reasons for hating Othello, no supposed reason appears actually to drive him more than
any other. 26 Similarly, hate exudes throughout The Merchant of Venice. It “is a play that
explores the dramaturgy of repugnancy, the aesthetics of things repugnant – taking the word both
in its more commonplace meaning, where it relates to a feeling of disgust or hatred aroused in us
by a person or thing, and in its older, philosophical usage, referring to something contradictory or
inconsistent, unresponsive to logical reasoning.” 27 Insults born of hatred of other people,
however disguised or polished, are shown in Shakespeare’s work to fuel hate-filled acts leading
to tragic consequences.
As seen above, the difference between private and public conversational spaces can
matter. But those differences are eroding as the notion of private space narrows.
One narrowing occurs due to the influence of social media. People choose to live their
lives more openly, at least to some degree. Electronic conversations can take place immediately
on Facebook walls. Tweets and re-tweets are, by design, to be instant reactions published to
multiple hearers in far-flung locations. So the jokey slanging of a Falstaff and Hal can become
immediate news more quickly.
For lawyers, especially, the notion that the only speech the organized bar cares about is in
pleadings, in court, or captured in transactional documents is gone (if it ever really existed).
Model Rule of Professional 8.4(b) recognizes as “professional misconduct” actions that are
“prejudicial to the administration of justice,” and Comment 3 to that Rule provides: “[3] A
lawyer who, in the course of representing a client, knowingly manifests by words or conduct,
25
This plan fails because Othello is suddenly needed to squelch an uprising in Cyprus. Othello, Act I. sc.
1. Outsider or not, Othello is useful to the insiders.
26
After centuries of study, Iago’s motives for wanting to harm Othello remain clouded. Perhaps Samuel
Taylor Coleridge came closest to the mark when describing Iago’s own self-examination of why he hated Othello as
“the motive-hunting of a motiveless malignity.” Samuel T. Coleridge, Notes and Lectures Upon Shakespeare and
Some of the Old Poets and Dramatists (Vol. 1), at 262 (William Pickering 1849) (reprinted in facsimile format in
Elibron Classics series, Adamant Media Corp. 2005). Iago hates because he hates.
27
Kenneth Gross, Shylock Is Shakespeare, at 11 (University of Chicago Press 2006).
- 19 -
bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation
or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the
administration of justice. . . .” 28 “[I]n the course of representing a client” is not necessarily
limited to papers, hearings, and similar matters directly involved in a transaction or trial.
And the regulated space may be expanding from “in the course of representing a client”
to “conduct related to the practice of law.” The April 2016 proposed amendment to Model Rule
8.4 would add a new provision 8.4(g) providing that it is “professional misconduct” to “(g)
harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, disability, age,
sexual orientation, gender identity, marital status or socioeconomic status in conduct related to
the practice of law. This Rule does not limit the ability of a lawyer to accept, decline, or
withdraw from a representation in accordance with Rule 1.16.” The revisions would then replace
existing Comment 3 with the following Comments 3-5: “[3] Discrimination and harassment by
lawyers in violation of paragraph (g) undermines confidence in the legal profession and the legal
system. Such discrimination includes harmful verbal or physical conduct that manifests bias or
prejudice towards others because of their membership or perceived membership in one or more
of the groups listed in paragraph (g). Harassment includes sexual harassment and derogatory or
demeaning verbal or physical conduct towards a person who is, or is perceived to be, a member
of one of the groups. Sexual harassment includes unwelcome sexual advances, requests for
sexual favors, and other unwelcome verbal or physical conduct of a sexual nature. The
substantive law of antidiscrimination and anti-harassment statutes and case law may guide
application of paragraph (g). [4] Conduct related to the practice of law includes representing
clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged
in the practice of law; operating or managing a law firm or law practice; and participating in bar
association, business or social activities in connection with the practice of law. Paragraph (g)
does not prohibit conduct undertaken to promote diversity. [5] Paragraph (g) does not prohibit
legitimate advocacy that is material and relevant to factual or legal issues or arguments in a
representation. A lawyer does not violate paragraph (g) by limiting the scope or subject matter of
the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations
in accordance with these Rules and other law. A lawyer may charge and collect reasonable fees
and expenses for a representation. Rule 1.5(a). Lawyers also should be mindful of their
professional obligations under Rule 6.1 to provide legal services to those who are unable to pay,
and their obligation under Rule 6.2 not to avoid appointments from a tribunal except for good
cause. See Rule 6.2(a), (b) and (c). A lawyer’s representation of a client does not constitute an
endorsement by the lawyer of the client’s views or activities. See Rule 1.2(b).”29
28
The Comment continues, “Legitimate advocacy respecting the foregoing factors does not violate
paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not
alone establish a violation of this rule.”
29
Proposal
contained
at
the
following
link,
last
accessed
June
23,
2016:
www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba_model_rule%208_4_comme
nts/draft_redline_04_12_2016.authcheckdam.pdf
- 20 -
Sarcasm as Insult30
Shakespeare frequently employs sarcasm in crafting insults for his character. In the
gravediggers’ scene in Act V of Hamlet, Shakespeare issues a fairly insulting commentary on the
legal system. The object of his attack is the manner in which lawyers use words to hide meaning
and prolong proceedings for personal gain. “The Grave-diggers’ scene [in Hamlet], however, is
the mine which produces the richest legal ore” 31 as it is liberally salted with legal verbiage.
Shakespeare gives us this glimpse of Hamlet’s thoughts about a deceased lawyer32:
HAMLET
There’s another: why may not that be the skull of a
lawyer? Where be his quiddities now, his quillets,
his cases, his tenures, and his tricks? why does he
suffer this rude knave now to knock him about the
sconce with a dirty shovel, and will not tell him of
his action of battery? Hum! This fellow might be
in’s time a great buyer of land, with his statutes,
his recognizances, his fines, his double vouchers,
his recoveries: is this the fine of his fines, and
the recovery of his recoveries, to have his fine
pate full of fine dirt? will his vouchers vouch him
no more of his purchases, and double ones too, than
the length and breadth of a pair of indentures? The
very conveyances of his lands will hardly lie in
this box; and must the inheritor himself have no more,
ha?What, ho, Brabantio! Signior Brabantio, ho!
HORATIO
Not a jot more, my lord.
HAMLET
Is not parchment made of sheepskins?
HORATIO
Ay, my lord, and of calf-skins too.
HAMLET
They are sheep and calves which seek out assurance
in that.
Hamlet, Act V, sc. 1. Before digging too deeply into Prince Hamlet’s point here, realize that the
speech is loaded with legal terms of art. “Here the lawyer descants upon mortality in the
This Section borrows profusely from the section “People Distrust Hidden Meanings and Complexity” in
the piece “Acting Professionally” written in conjunction with the ABA Annual Meeting in 2013.
30
John Gregorson Campbell, Shakespeare’s Legal Acquirements Considered, at 84 (John Murray 1859;
reprinted in facsimile edition in Elibron Classics series, Adamant Media Corp. 2005).
31
32
Okay, to be pedantic, Hamlet does not know whether the person was a lawyer. It’s just a skull to him,
but it’s at least a hypothetical lawyer.
- 21 -
abstrusest language of his science.”33 In 1859 John Gregorson Campbell noted, “These terms of
art are all used seemingly with a full knowledge of their import; and it would puzzle some
practising barristers with whom I am acquainted to go over the whole seriatim, and to define
each of them satisfactorily.”34
To take just one example, peek at “double vouchers” where a series of fictitious lawsuits
are instituted to strip title to property. As Cushman Davis explains, “This was an incident of
alienation of lands by a common recovery. A. desired to suffer a common recovery so as to bar
entails, remainders, and reversions, and thereby to convey the land in fee-simple to B. To effect
this B. brought a suit against A. for the lands, alleging that A. had no legal title, but that he came
into possession after one C. (a fictitious person) had turned the plaintiff out. Whereupon A., the
defendant, appeared, and called on D., (who was usually the crier of the court, who was used for
that purpose,) who, by fiction, was supposed to have warranted the title to A. when the latter
bought, to come in and vouch and defend the title which he had so warranted. D. thereupon
pleaded, defending the title. B. returned into court, but D. absented himself and made default.
Whereupon judgment was given that B. recover the lands of A., and A. had judgment to recover
lands of equal value of D., the man of straw. This recovery was with a single voucher. But D.
being a mere man of straw, it was manifest that A. had only a nominal recompense for the lands.
It was customary to have a recovery, with double voucher, by first conveying an estate of
freehold to any indifferent person against whom the suit was brought, who vouched the tenant in
tail who wished to carry through the recovery, who in turn vouched the man of straw again. The
reason of this double voucher was that if a recovery was had immediately against the tenant in
tail, (A.,) it barred only such estate to the lands of which he was then actually seized, but if the
recovery was had against another person, and A., the tenant in tail, was vouched, it bound every
latent or contingent right which he might have in the premises recovered.”35
So what’s Hamlet’s point? The hypothetical lawyer may well have been able to twist,
mangle, convey, reconvey, and double-vouch his way through life; but none of “his quillets, his
cases, his tenures, and his tricks” will serve to evade the leveling justice of death. However
much land the lawyer conveyed (or perhaps even glommed from unsuspecting clients), “[t]he
very conveyances of his lands will hardly lie in this box [i.e., a coffin].” Shakespeare has
caricatured his hypothetical lawyer, but done so with genuine terms of legal art — and terms that
could readily be used to expand proceedings, confuse laypeople, and line legal pockets.
Shakespeare knew whereof he wrote, for his family had encountered the arcane real
estate litigation of his time.36 In 1556 Robert Arden had bequeathed property to his daughter
C.K. Davis, The Law in Shakespeare, supra, at 267. One can’t beat the nineteenth century for summing
up abstruse legal prose in abstruse legal prose.
33
34
J.G. Campbell, Shakespeare’s Legal Acquirements Considered, supra, at 89 (emphasis in original).
35
C.K. Davis, The Law in Shakespeare, supra, at 269-70.
While there are multiple accounts of the litigation over Mary Arden’s property and John Shakespeare’s
(and William’s) involvement in the lawsuits, the account above is drawn primarily from James Shapiro, A Year in
the Life of William Shakespeare: 1599, at 247-49 (Harper Collins 2005). Cf. Stephen Greenblatt, Will in the World:
How Shakespeare Became Shakespeare, at 61 (largely concurring in version set forth above, although adding detail
that John Shakespeare later claimed “that he had in fact proffered the payment” and concluding that “the courts
found for Lambert”) (W.W. Norton & Co. 2004).
36
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Mary, who went on to marry John Shakespeare. John and Mary begat William Shakespeare. In
1578, John borrowed forty pounds from a relative, Edmund Lambert, and mortgaged Mary’s
legacy. “William Shakespeare was fourteen years old when his father, unable to repay all of the
money on time on September 29, 1580, saw his wife’s property pass into Lambert’s hands. . . .
After Lambert’s death in 1587, the property went to his son John. At this point the Shakespeares
seemed ready to cut their losses, and, according to their version of what happened, in 1588, they
agreed to give up any rights to the property and hand over any title deeds in their possession if
John Lambert would compensate them with a cash payment of twenty pounds. It seems that
some kind of conversation about this took place, but Lambert later denied that an agreement had
been reached.”37 Well, when one side contends an agreement was reached and the other side
denies it, then as now lawyers enter the picture. In November of 1597 John and William
Shakespeare sued in Chancery Court to recover the land itself. “The wheels of justice ground
slowly, and it wasn’t until the summer of 1598 that the court appointed commissioners to look
into the facts of the case. Because John Shakespeare had mistakenly filed proceedings with the
court twice in the same cause, there were further delays, and it wasn’t until late June 1599 that
the confusion was straightened out. Between June and October of 1599 witnesses for both sides
were deposed and depositions prepared and submitted to the court, and evidence shared by the
two parties. It would have been critical for William Shakespeare to be on the scene in Stratford
at some point during these months to sift through documents, contact potential witnesses, and
steer the case (we can’t know whether his father was literate or whether, given his advanced age,
he was physically up to the task). . . . It appears that [the Shakespeares’] claim wasn’t strong
enough, or, alternatively, that they grudgingly came to terms with Lambert, for the case was
never heard by the court. Shakespeare and his father had spent an enormous amount of time,
money, and energy in their attempt to regain this Arden legacy.”38
Litigation records from the late 1500s are far from complete, of course, and all of the
depositions have been lost. One other biographer posits that the entire debt and recovery issue
may have been even more closely linked to convoluted real estate schemes. Peter Ackroyd
posits the following:
“It is a confusing history, but the pattern is clear: the Shakespeares were selling
land to relatives while arranging for its later reversion to them. . . .
“The most plausible explanation for these complicated arrangements lies in John
Shakespeare’s difficult position as a known recusant. . . . One of the penalties of
recusancy was the confiscation of land. An official report, published at a slightly later
date, noted how recusants employed ‘preventions commonly . . . in use to deceive.’ One
37
J. Shapiro, A Year in the Life of William Shakespeare: 1599, supra, at 247-48.
38
J. Shapiro, A Year in the Life of William Shakespeare: 1599, supra, at 248. Incidentally, the time
William Shakespeare spent reviewing documents and arguments concerning this real estate matter more than
adequately account for his knowledge of law. Contra J.G. Campbell, Shakespeare’s Legal Acquirements
Considered, supra, at 110 (“I say, if Shakespeare is shown to have possessed a knowledge of law, which he might
have acquired as clerk in an attorney’s office in Stratford, and which he could have acquired in no other way, we are
justified in believing the fact that he was a clerk in an attorney’s office at Stratford without any direct proof of the
fact.”) (emphasis added). No matter how much we may wish to embrace William as a fellow lawyer or clerk, his
own involvement in family litigation more than provides an explanation for any supposed familiarity with some
legal processes.
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subterfuge or ‘prevention’ was detailed thus – ‘Recusants convey all their lands and
goods to friends, and are relieved by those which have the same lands.’ Others ‘demise
their land to certain tenants.’ The strategy is clear. A recusant such as John Shakespeare
could thus avoid the prospect of confiscation. After an agreed interval the property was
then returned. The conduct of Edmund Lambert, however, acts as a reminder that events
did not always turn out as happily as they had been planned.”39
So Ackroyd concludes that John Shakespeare may have been trying to deceive the government
via a legal fiction. Either way, William Shakespeare’s own reaction to suffering through the
litigation from 1597 to 1599, at the height of his career, may well be reflected in the
gravediggers’ scene in Hamlet40 and in other plays.
Putting aside Shakespeare’s personal animosity toward a system that he had already
demonstrated needed lawyers to protect ordered liberty, what can we draw from this thinlydisguised critique? First, laws that seem overly complicated or seem to be designed to thwart a
simple understanding of justice undermine “the popular participation and support”41 that lawyers
are committed to fostering in the law. In some instances the remedy may be education. For
example, a populace outraged that “even criminals” have rights may need to be reminded of the
importance of the presumption of innocence as well as the policies underlying various laws that
can, quickly, become fairly technical. Second, there will be times that lawyers are called upon
by both professional and ethical guidelines to press for change within the system of ordered
liberty.
An additional professionalism point that can be drawn from the gravediggers’ scene is
that the more words it seems to take to “justify” a course of action or result, the less inherently
“justifiable” the course may well be. Legal jargon should not be viewed as an adequate
substitute for reality or justice.
Insults Within Juridicial or Governmental Settings
Words and insults often come up in questioning settings; i.e., those involving the
examination of witnesses or responding to questions from judges. In Hamlet, Lord Polonius has
arranged to be asked by King Claudius and Queen Gertrude to determine what is troubling
Prince Hamlet. As a committee or panel of one, Polonius finds Hamlet and interrogates him.
While Polonius is attempting to be subtle, and while Hamlet is feigning madness, notice how
Hamlet responds to Pol0nius’s inquiries:
39
Peter Ackroyd, Shakespeare: The Biography, at 69-70 (citing Edgar Fripp, Shakespeare: Man and Artist,
Volume One, page 155 (Oxford 1938) for description of the official report and quotations therefrom) (Doubleday
2005).
40
In Shapiro’s dating of events, Shakespeare was finishing Hamlet, and thus the gravediggers’ scene,
while this litigation was drawing to a close. J. Shapiro, A Year in the Life of William Shakespeare: 1599, supra, at
248. The multiple and apparently correct references to writs and real property conveyancing terms in the
gravediggers’ scene are hardly coincidental.
41
ABA Model Rules of Professional Conduct, Preamble, para. 6.
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LORD POLONIUS
O, give me leave: How does my good Lord Hamlet?
HAMLET
Well, God-a-mercy.
LORD POLONIUS
Do you know me, my lord?
HAMLET
Excellent well; you are a fishmonger.
LORD POLONIUS
Not I, my lord.
HAMLET
Then I would you were so honest a man.
LORD POLONIUS
Honest, my lord!
HAMLET
Ay, sir; to be honest, as this world goes, is to be one man
picked out of ten thousand.
LORD POLONIUS
That's very true, my lord.
HAMLET
For if the sun breed maggots in a dead dog, being a god
kissing carrion,--Have you a daughter?
LORD POLONIUS
I have, my lord.
HAMLET
Let her not walk i' the sun: conception is a blessing: but
not as your daughter may conceive.
Friend, look to 't.
LORD POLONIUS
[Aside] How say you by that? Still harping on my
daughter: yet he knew me not at first; he said I was a
fishmonger: he is far gone, far gone: and truly in my youth
I suffered much extremity for love; very near this. I'll
speak to him again.
What do you read, my lord?
HAMLET
Words, words, words.
LORD POLONIUS
What is the matter, my lord?
HAMLET
Between who?
LORD POLONIUS
I mean, the matter that you read, my lord.
I mean, the matter that you read, my lord.
HAMLET
Slanders, sir: for the satirical rogue says here that old men
have grey beards, that their faces are wrinkled, their eyes
- 25 -
purging thick amber and plum-tree gum and that they have
a plentiful lack of wit, together with most weak hams: all
which, sir, though I most powerfully and potently believe,
yet I hold it not honesty to have it thus set down, for
yourself, sir, should be old as I am, if like a crab you could
go backward.
LORD POLONIUS
[Aside] Though this be madness, yet there is method in 't.
Will you walk out of the air, my lord?
HAMLET
Into my grave.
LORD POLONIUS
Indeed, that is out o' the air. [Aside]
How pregnant sometimes his replies are! a happiness that
often madness hits on, which reason and sanity could not
so prosperously be delivered of. I will leave him, and
suddenly contrive the means of meeting between him and
my daughter.--My honourable lord, I will most humbly
take my leave of you.
HAMLET
You cannot, sir, take from me any thing that I will more
willingly part withal: except my life, except my life,
except my life.
LORD POLONIUS
Fare you well, my lord.
HAMLET
These tedious old fools!
Hamlet, Act II, sc. 2. It should go without saying that lawyers are not called upon to respond
sarcastically or disrepectfully in official settings. Yet, countless contempt sanctions indicate that
this does need saying.
Hamlet’s responses go beyond direct sarcasm. A major part of the insult delivered to
Polonius is that Hamlet simply refuses to take Polonius and his questioning seriously. When
asked specific questions, Hamlet either responds nonsensically or goes on with his reading.
Query how much this can look like an oral argument where the “advocate” attempts to ignore or
evade questioning from the bench. As Hamlet’s example may aid us in seeing, ignoring and
evading questions is not merely bad advocacy; it is insulting.
Not all of Shakespeare’s examples of lawyers in governmental or juridicial settings are
negative. In Henry IV, part 2, Henry IV has died and the Lord Chief Justice of England, William
Gascoigne, realizes that he will soon have to answer to the former Prince Hal, now King Henry
V. Worse yet, the Chief Justice is reported (by none other than Falstaff) to have been assaulted
by the young prince in the past.42 In addition, the Chief Justice had actually jailed the young
Falstaff notes this when arguing with the Chief Justice in Henry IV, part 2, Act I, sc. 2 (“For the box of
the ear that the Prince gave you, he gave it like a rude prince, and you took it like a sensible lord.”). This is one of
42
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prince at one point. So the Chief Justice is understandably nervous upon hearing that Henry IV
has died and the wayward Prince Hal has become King Henry V:
WARWICK
How now, my lord chief-justice! whither away?
LORD CHIEF-JUSTICE
How doth the king?
WARWICK
Exceeding well; his cares are now all ended.
LORD CHIEF-JUSTICE
I hope, not dead.
WARWICK
He’s walk’d the way of nature;
And to our purposes he lives no more.
LORD CHIEF-JUSTICE
I would his majesty had call’d me with him:
The service that I truly did his life
Hath left me open to all injuries.
WARWICK
Indeed I think the young king loves you not.
LORD CHIEF-JUSTICE
I know he doth not, and do arm myself
To welcome the condition of the time,
Which cannot look more hideously upon me
Than I have drawn it in my fantasy.
Henry IV, part 2, Act V, sc. 2. In short, the Chief wishes he had died with Henry IV and cannot
imagine life with Henry V, whom the Chief Justice had actually ordered jailed.
But notice what unfolds as Henry V first confronts the Chief Justice when both are in
juridicial and governmental roles. While Henry/Hal at first harangues the Chief for “[s]o great
indignities you laid upon me” he listens to the Chief respond and then concedes “[y]ou are right,
justice” and even wishes that the Chief Justice will act in the same manner when dealing with
any son King Henry may later have:
KING HENRY V
Indeed I think the young king loves you not.
LORD CHIEF-JUSTICE
I am assured, if I be measured rightly,
Your majesty hath no just cause to hate me.
three times in the Henry plays that the incident is discussed, although it does not take place on stage. See J.A.
Porter, The Drama of Speech Acts: Shakespeare’s Lancastrian Tetralogy, supra, at 110.
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KING HENRY V
No!
How might a prince of my great hopes forget
So great indignities you laid upon me?
What! rate, rebuke, and roughly send to prison
The immediate heir of England! Was this easy?
May this be wash’d in Lethe, and forgotten?
LORD CHIEF-JUSTICE
I then did use the person of your father;
The image of his power lay then in me:
And, in the administration of his law,
Whiles I was busy for the commonwealth,
Your highness pleased to forget my place,
The majesty and power of law and justice,
The image of the king whom I presented,
And struck me in my very seat of judgment;
Whereon, as an offender to your father,
I gave bold way to my authority
And did commit you. If the deed were ill,
Be you contented, wearing now the garland,
To have a son set your decrees at nought,
To pluck down justice from your awful bench,
To trip the course of law and blunt the sword
That guards the peace and safety of your person;
Nay, more, to spurn at your most royal image
And mock your workings in a second body.
Question your royal thoughts, make the case yours;
Be now the father and propose a son,
Hear your own dignity so much profaned,
See your most dreadful laws so loosely slighted,
Behold yourself so by a son disdain’d;
And then imagine me taking your part
And in your power soft silencing your son:
After this cold considerance, sentence me;
And, as you are a king, speak in your state
What I have done that misbecame my place,
My person, or my liege’s sovereignty.
KING HENRY V
You are right, justice, and you weigh this well;
Therefore still bear the balance and the sword:
And I do wish your honours may increase,
Till you do live to see a son of mine
Offend you and obey you, as I did.
So shall I live to speak my father’s words:
Happy am I, that have a man so bold,
That dares do justice on my proper son;
- 28 -
And not less happy, having such a son,
That would deliver up his greatness so
Into the hands of justice.’ You did commit me:
For which, I do commit into your hand
The unstained sword that you have used to bear;
With this remembrance, that you use the same
With the like bold, just and impartial spirit
As you have done ‘gainst me. There is my hand.
You shall be as a father to my youth:
My voice shall sound as you do prompt mine ear,
And I will stoop and humble my intents
To your well-practised wise directions.
And, princes all, believe me, I beseech you;
My father is gone wild into his grave,
For in his tomb lie my affections;
And with his spirit sadly I survive,
To mock the expectation of the world,
To frustrate prophecies and to raze out
Rotten opinion, who hath writ me down
After my seeming. The tide of blood in me
Hath proudly flow’d in vanity till now:
Now doth it turn and ebb back to the sea,
Where it shall mingle with the state of floods
And flow henceforth in formal majesty.
Now call we our high court of parliament:
And let us choose such limbs of noble counsel,
That the great body of our state may go
In equal rank with the best govern’d nation;
That war, or peace, or both at once, may be
As things acquainted and familiar to us;
In which you, father, shall have foremost hand.
Our coronation done, we will accite,
As I before remember’d, all our state:
And, God consigning to my good intents,
No prince nor peer shall have just cause to say,
God shorten Harry’s happy life one day!
Henry IV, Part 2, Act V, sc. 2. In this scene, “Shakespeare has created a portrait of a great Chief
Justice, and has paid an impressive tribute to the impartiality of [England’s] courts in the Middle
Ages.”43
43
G.W. Keeton, Shakespeare And His Legal Problems, supra, at 158. Accord Daniel J. Kornstein, Kill All
the Lawyers?, at 138 (“Shakespeare has created a portrait of a great judge and has paid an impressive tribute to the
impartiality of courts.”) (Princeton University Press 1994). Incidentally, the historical Lord Chief Justice William
Gascoigne was famed for an additional reason. “His tenure of office was also notable for the introduction of
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A negative, although frequently praised, piece of lawyering appears in The Merchant of
Venice. Portia is frequently praised for turning the legal proceedings begun by the moneylender
Shylock back upon him. Yet, in A Thousand Times More Fair: What Shakespeare’s Plays Teach
Us About Justice, Professor Kenji Yoshino takes a more careful look at Portia’s performance:
For many centuries, Portia has been held up as an emblem of a good lawyer. The
first law school for women, which would later become the New England School of Law,
was called the Portia Law School. After Justice Sandra Day O’Connor ascended to the
high court, Justice John Paul Stevens once referred to her as the “Portia who now graces
our Court.” He meant it as a compliment.
But we should take a more skeptical look at Portia. It is a commonplace that
people hate lawyers—as law professor Ann Althouse has observed, lawyers may be the
only group of people about whom it is still acceptable to say that it would be better if we
were all dead. Much of the animus against lawyers arises from the idea that we are
mouths for hire, using our rhetorical skills to secure happiness and safety for the
Belmonts in which we live, ignoring the consequences for those outside that magic circle.
When lawyers do not have this attribute, like Mahatma Gandhi or Nelson Mandela, the
public tends to forget these figures were lawyers at all.
As we reflect on the three trials superintended by Portia, 44 her rhetorical skill
should inspire misgiving. Only Shylock approaches her skill. Shylock is eloquent
enough to hoodwink Antonio and Bassanio into entering the infamous flesh bond. But
Shylock is decisively out-lawyered by Portia in the famous trial scene in the play. I
initially admire Portia because only she can stop Shylock. By the play’s end, I wonder
who can stop her.45
examinations as a preliminary to admission to practise as an attorney; and the same statute also provided that an
attorney should cease to practise on conviction for fraud.” G.W. Keeton, Shakespeare And His Legal Problems,
supra, at 159-60. So Lord Chief Justice Gascoigne was a forefather of both the bar exam and disbarment
proceedings.
44
The three trials to which Yoshino is referring are (1) the choice by suitors for Portia of a gold, silver, or
lead casket, (2) the actual trial scene in Act IV discussed above, and (3) the trial of her soon-to-be husband Bassanio
and Nerissa’s soon-to-be husband Gratiano in the matter of rings each had been given. K. Yoshino, A Thousand
Times More Fair: What Shakespeare’s Plays Teach Us About Justice, supra, at 30-31. “However it may be now,
there was a time when anyone who had been through high school knew that The Merchant of Venice is an
interweaving of three strands commonly known as the casket story, the bond story, and the ring story.” Harold C.
Goddard, The Meaning of Shakespeare (Vol. 1), at 82 (University of Chicago Press 1951. The three trials or strands
are similar to three of the Codes discussed by Richard H. Weisberg in “The Concept and Performance of ‘The Code’
in The Merchant of Venice”, pp. 289-98, in Shakespeare and the Law (Eds. Paul Raffield & Gary Watt) (Hart
Publishing 2008) –the Private Code reflected in the bond that is the subject of the trial in Act IV, the Testamentary
Code that is the subject of the trial of the caskets, and the Marriage Code that involves the rings.
K. Yoshino, A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice, supra, at
50-51 (emphasis in original). For a similarly critical views of Portia’s actions, see D.J. Kornstein, Kill All the
Lawyers?, supra, at 76 (“Portia’s inconsistency between word and deed is vast. . . . Portia’s huge inconsistency and
terrible meanness leave haunting doubts about her character.”); Kenneth Gross, Shylock Is Shakespeare, at 98-104
(University of Chicago Press 2006)., and particularly at 98-99 (“If [Portia’s] sudden skill seems surprising, we might
recall that she brings with her to Venice not only the letters of Bellario [a lawyer] but the lessons of Belmont, a place
that has been to her both law school and dramatic academy. It has taught her about the double bind of legal
45
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Professor Yoshino’s critique focuses upon Portia’s repeated ability to manipulate
contracts — in the form of her father’s will, the debt instrument between Shylock and Antonio,
and the marriage contracts that Portia and Nerissa have entered with Bassanio and Gratiano.
Portia is just too clever to be trusted.
Another criticism involves the conduct of the Act IV trial itself, for a modern day lawyer
mimicking Portia’s presentation would run afoul of ABA Model Rule 8.4(d), which prohibits
conduct prejudicial to the administration of justice. Comment 3 to that Rule states: “[3] A
lawyer who, in the course of representing a client, knowingly manifests by words or conduct,
bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation
or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the
administration of justice. Legitimate advocacy respecting the foregoing factors does not violate
paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a
discriminatory basis does not alone establish a violation of this rule.” The actual conduct of the
trial in Act IV makes clear that, in addition to saving the life of Antonio, Portia’s plan of attack is
to convert under compulsion Shylock from Judaism to a form of cultural Christianity.46
The trial procedure in Act IV is something of a mess. 47 The case begins as a civil action
upon a debt secured by the bond. Then somehow it morphs into a criminal trial of the civil
plaintiff on a charge of seeking to take the life of Venetian citizen, all arising from actions
approved by the court itself. The penalty handed down then is a mix of forfeitures — some to
the state and some to family members of the civil plaintiff — plus a mandatory conversion from
Judaism of the civil plaintiff turned criminal defendant in the same proceeding.
And Portia “plays the Jew card” repeatedly and from the bottom of the deck.
Upon being introduced to the court, Portia (disguised as Balthasar) notes that “he” is
familiar with the case and begins with a loaded question: “Which is the merchant here, and
contracts and legacies, and about how choices supposedly based on reason disguise vanity and unreason, also about
how human choosers lend to the accidents of fortune the name of fate. She has learned there how to tempt those she
dislikes into being caught by their own erring desires. In Belmont, her bondage to the casket ritual has taught her to
play with stereotypes, to equivocate and speak against her own speaking, blankly to prevaricate, even to manipulate
such binding rituals to her own ends. And she still bears with her into the heart of Venice the ambition of the
Belmont world to contain what is explosive, dangerous, and unmeasurable.”); Thomas C. Bilello, “Accomplished
with What She Lacks: Law, Equity, and Portia’s Con,” pp. 109-26, in The Law In Shakespeare, at 110 (Eds.
Constance Jordan & Karen Cunningham) (Palgrave MacMillan 2010) (“Portia’s judgment has little to do with
justice or equity. . . . Indeed, by inserting herself by artifice into the legal proceedings to enforce the bond, Portia
converts the law into an instrumentality of her will.”).
This author uses the term “cultural Christianity” advisedly, for the conversion that is demanded of
Shylock at the end of Act IV has nothing to do with religious practices or doctrines and everything to do with
outward adherence to cultural norms.
46
See, e.g., J. Gross, Shylock: A Legend & Its Legacy, at 77 (“The case itself has some equally
unsatisfactory features. . . . And, more irregular still, the whole nature of the proceedings changes in mid-course. A
civil action is suddenly transformed into a criminal case, and the court, without in any way reconstituting itself,
delivers a verdict and passes sentence.”) (Touchstone 1992). Contra J.G. Campbell, Shakespeare’s Legal
Acquirements Considered, supra, at 50 (“The trial comes on in Act IV, Sc. I, and it is duly conducted according to
the strict forms of legal procedure.”).
47
- 31 -
which the Jew?”48 Portia then proceeds to refer to or address Shylock as “Jew” eight more times
in this single scene, while only addressing or referring to him as Shylock three times. In the
middle of the famous “quality of mercy” speech Portia underscores Shylock’s status as a nonChristian by noting: “Therefore, Jew,// Though justice be thy plea, consider this,// That, in the
course of justice, none of us// Should see salvation: we do pray for mercy;// And that same
prayer doth teach us all to render// The deeds of mercy.” The references to “we do pray for
mercy” and “that same prayer” would have been understood by Shakespeare’s audience to refer
to the prayer recorded in Matthew 6:9-13, and particularly verse 12: “And forgive us our debts,
as we forgive our debtors.” (King James Version 161149).
Both directly and by allusion, Portia repeatedly reminded Shylock and the court that
Shylock was an outsider. Antonio and the Duke apparently got the hint, for the convoluted
proceedings end with Antonio asking that goods that were to be forfeited to Antonio be
restructured as a life estate pur autre vie for Antonio with the property going to Lorenzo (the
Christian husband of Shylock’s daughter Jessica) effective upon Shylock’s death, with the
following provisos:
ANTONIO
Two things provided more, that, for this favour,
He presently become a Christian;
The other, that he do record a gift,
Here in the court, of all he dies possess’d,
Unto his son Lorenzo and his daughter.
DUKE
He shall do this, or else I do recant
The pardon that I late pronounced here.
PORTIA
Art thou contented, Jew? what dost thou say?
SHYLOCK
I am content.
PORTIA
Clerk, draw a deed of gift.
48
Merchant of Venice, Act IV, sc. 1. Admittedly, Shylock is frequently referred to by all characters as
“the Jew,” and the letter that has been read to the court prior to Portia’s entrance notes that the dispute is between
“the merchant and the Jew.” Of course, Portia likely dictated or wrote the letter in apparent connivance with the
“learned doctor law Bellario. Although the Duke wrote to Bellario for advice regarding the trial (as recounted by
the Duke in Act IV, scene 1), Bellario is also Portia’s cousin to whom she wrote for law books and legal robes to
carry out the imposture she proposed to Nerissa in Act III, scene 4.
Printed in 1611 as “And forgiue vs our debts, as we forgiue our debters.” The spelling above is
regularized as the u/v shifts are the result of printing conventions and the change from “debters” to “debtors” is a
spelling change only. Of course, this same 1611 translation would have made clear that “mercy” was far from a
second testament innovation. See, e.g., Micah 6:8 (KJV) (“He hath shewed thee, O man, what is good; and what
doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?”).
49
- 32 -
SHYLOCK
I pray you, give me leave to go from hence;
I am not well: send the deed after me,
And I will sign it.
DUKE
Get thee gone, but do it.
Merchant of Venice, Act IV, sc. 1.
The majority of readers or playgoers are not as critical of Portia as Yoshino is. Blame for
the trial itself must begin with Shylock, for he instituted the proceedings and repeatedly turned
down the tendered sum in court. “Shylock sows the seeds of his own destruction when he
attempts to wrest the legal-commercial system of Venice to the noncommercial purpose of
revenge. In Venice, all ducats are created equal. So long as a person has money, does not break
the law, and gears his actions to the making of more money, his conduct and motives will be
accepted by the state as reasonable, though he be an outsider of questionable morality.” 50 So in
order to avoid the twisted result of allowing Antonio to be sliced up as part of the performance of
a bond (even after multiples of the sum were tendered), the twisted law was twisted a bit further
to get where the law might have gone more quickly had it not been gnarled in the first place.51
Had the Duke and Portia/Balthasar concluded that Venice would not enforce the contract
because to do so would involve Venice itself imposing a physical penalty when only a
commercial debt was at issue, the issue would not arisen. Yet, both the Duke and
Portia/Balthasar at least appeared willing to have the maiming and torturing take place.52
In Shakespeare’s day, there were few to no practicing Jews legally residing in England.
“Officially there had been no Jews in the country for centuries. But a handful of Marranos,
crypto-Jews from Spain and Portugal, made their way to London during the reign of Henry VIII,
and a somewhat larger colony, perhaps a hundred in all, established itself during the reign of
50
C. Bernthal, The Trial of Man: Christianity and Judgment in the World of Shakespeare, supra, at 110.
The plea “To do a great right, do a little wrong” has been taken by one commentator as a possible
support for civil disobedience. See Margaret Graham Tebo, Shakespeare for Lawyers: A Practical Guide to Quoting
the Bard, at 123 (ABA Publishing 2010).
51
I stress “apparently” because this author remains of the view that Portia knew of the legal “out” from the
moment she stepped in the courtroom, and wanted to either allow Shylock to accept payment himself (and exercise
“mercy) or to reveal himself as seeking only bloody revenge by turning down repeated tenders of payment and
requests for mercy. Martin Yaffe and John Lyon are apparently in agreement with me on this, noting: “With an
opponent as legalistically precise as Shylock, Portia needs as much evidence of the reality of Shylock’s malevolent
intent as he can be brought to give, and it is perhaps only at the last moment that the last-moment solution can be
safely and effectively revealed.” Martin Yaffe, Shylock and the Jewish Question, supra, at 7 (emphasis in original)
(Johns Hopkins University Press 1997) (quoting John Lyon, “The Merchant of Venice” in Twayne’s New Critical
Introductions to Shakespeare, at 105 (Twayne 1988)). “Portia’s words give Shylock every opportunity to render a
spectacular act of mercy so as to render nugatory the law under which she [Portia] alone knows he stands guilty.”
M. Yaffe, Shylock and the Jewish Question, supra, at 8. Similarly, John Gregorson Campbell urges that the entire
trial is conducted according to a plan that allows a defeat on the legal claim in order to place Shylock in a position of
clearly placing Antonio under murderous attack. J.G. Campbell, Shakespeare’s Legal Acquirements Considered,
supra, at 50-52. This point is not universally agreed upon, and many productions of The Merchant of Venice picture
Portia as only finding the solution after she pronounces that the law cannot “do a little wrong” and asks to “look
upon the bond” (The Merchant of Venice, Act IV, sc. 1).
52
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Elizabeth. . . . Outwardly the Elizabethan Marranos were Christians, but they retained many
Jewish affiliations and some of them may well have practiced Jewish ceremonies in private.”53
Mixed political signals were sent. “Henry VII replied [to a complaint from the Spanish
ambassador] that he would ‘punish soundly any Jew or heretic to be found in his realms.’
Nonetheless, King Henry and the Tudor monarchs that succeeded him did tolerate small numbers
of Jews in England for the simple reason that they proved useful. Their numbers included
merchants, a mining expert, teachers and translators of Hebrew, and physicians.”54
By the late sixteenth century Jewish identity was a complicated matter. For example,
Roderigo Lopez, a doctor who “was tried and executed in 1594 for an alleged plot to poison
Queen Elizabeth” was described in some contemporary accounts as “‘Doctor Lopez, the Queen’s
physician,’ who ‘is descended of Jews, but [is] himself a Christian, and [from] Portugal.’” 55 The
number of Jews residing in England, whether or not publicly regarded as “conversios,” is
impossible to estimate accurately. Nonetheless, given the publicity of the Lopez trial and
execution in 1594, by that time whether Shakespeare’s audiences had knowingly met or
interacted with any practicing Jews, they likely had fixed and mostly negative opinions regarding
them.56
So were the repeated references to “Jew” meant or understood to be insulting?
Etymology seems to suggest the references were understood to be insults. As James Shapiro
notes, “the word Jew had entered the English vocabulary in the thirteenth century as a catchall
term of abuse, often directed at other Christians, . . . . The Jew as irredeemable alien and the Jew
as bogeyman into whom the Englishmen could be mysteriously ‘turned’ coexisted at deep
linguistic and psychological levels.”57 Jews were “irredeemabl[y] alien” in Shakespeare’s time
because so little was known about actual practicing Jews. “Not until Leone Modena and
Manasseh ben Israel wrote works translated into English in the seventeenth century did English
readers have access to accounts of the Jewish faith written by those who were still practicing
Jews.”58
53
J. Gross, Shylock: A Legend & Its Legacy, supra, at 32. Cf. James Shapiro, Shakespeare and the Jews,
at 72 (Columbia University Press 1996) (“This Portuguese Marrano circle in London, whose leading citizens
included physicians like Hector Nunez and Roderigo Lopez, and merchants like Alvaro de Lima, Jeronimo Lopez,
Gabriel Fernandes, Fernando del Mercado, and Dustan Ames, numbered at least eighty or ninety. This community
was well enough established so that Salomon Cormano, the envoy of the Jewish Duke of Metilli, had no difficulties
in finding fellow Jews to pray with during his embassy to England in 1592.”).
54
J. Shapiro, Shakespeare and the Jews, supra, at 68.
55
J. Shapiro, Shakespeare and the Jews, supra, at 73 (brackets in Shapiro).
There is still scholarly debate concerning the English attitude toward Jews during Shakespeare’s life.
James Shapiro has collected the evidence for a generally negative view of Jews and Jewishness in Shakespeare and
the Jews (1996), while Martin Yaffe, in Shylock and the Jewish Question (1997), urges that the data put forward by
Shapiro are more limited and that Elizabethan attitudes may have been more ambivalent or indifferent than
suggested by Shapiro.
56
57
J. Shapiro, Shakespeare and the Jews, supra, at 24.
58
J. Shapiro, Shakespeare and the Jews, supra, at 35 (citing translated works from 1650).
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Unintentional Insults and the Need for Awareness59
Some insults are delivered by bench and bar by the truly clueless. For example, in a
disciplinary hearing for the superior court judge in Alaska who had expressed amazement that
statements of his during trials and sentencing had been offensive, counsel for the judge stated
that the judge’s comments had come from a place of “ignorance” and that “training” for the
judge would be appropriate in lieu of sanctions.60
Additionally, words that might not have been viewed as insulting twenty years ago can
take on a far different character today,61 and words from one context (two friends with a shared
background deliberately addressing one another in inflammatory terms) become deeply insulting
in any other context. Even facially “neutral” words are revealed as insults in the appropriate
context.62 For example, in Claypole v. County of Monterey, Case No. 14-cv-02730 (N.D. Cal.
January 12, 2016), 63 a magistrate judge imposed a separate “professionalism” sanction (in
addition to discovery sanctions) for conduct occurring during discovery. Defense counsel’s
directive to plaintiff’s counsel during a heated deposition – “[D]on’t raise your voice at me. It’s
unbecoming of a woman . . . .” – was particulary singled out. Claypole, slip op. at 8. After
noting that attorney’s fees and costs for the motion to compel, and attorney’s fees for a portion of
the deposition, had already been awarded earlier in the opinion, the magistrate judge awarded an
additional sanction solely based on the professionalism violation, ordering that offending counsel
donate $250.00 to the Women Lawyers Association of Los Angeles Foundation. Claypole, slip
op. at 10. In one sense and context (not present in the case itself), the word “woman” is far from
insulting. But in the context of a heated deposition when a misbehaving male attorney chooses
to lecture a female attorney on how to behave properly, the context changes.
As noted above, in Measure for Measure Angelo and Escalus weres appointed to act in
the Duke’s stead as executive and magistrate, respectively. “Neither deputy is clear about his
duties: Escalus notes, ‘A power I have, but of what strength and nature / I am not yet instructed”
(I.I.79-80), and Angelo suggests they consult together to determine how to proceed (I.I.81-83).
The 2013 paper “Acting Professionally” addressed the most famous of the incompetent trial scenes —
Dogberry’s “O that I had been writ down an ass” trial from Much Ado About Nothing — in the section titled
“Incompetence Is Not Pretty.” This paper focuses upon the less familiar, but no less incompetent, performance of
Constable Elbow in the trial scene from Measure for Measure.
59
60
The
disciplinary
panel
recommended
censure
instead,
www.alaskapublic.org/2015/12/15/nome-judge-recommended-for-public-censure/
as
reported
in
61
For examples see the online articles Hayley Williams, “Ten Words You Never Knew Were Offensive”
(February 22, 2016), and Joshua Kennon, “The Evolution of Non-Offensive Terms Into Slurs and Profanity”
(February 1, 2013), last accessed June 23, 2016, respectively at the following: www.lifehacker.com.au/2016/02/tenwords-you-never-knew-were-offensive/ and www.joshuakennon.com/the-constant-evolution-of-non-offensiveterms-into-slurs/
62
For an example in Shakespeare, see Mark Antony’s repeated reassurance to the crowd that the recent
killers of Julius Caesar are “all honourable men” in Act III, sc. 2 of Julius Caesar. Context is key.
63
As of June 23, 2016, the opinion may be accessed as docket entry no. 161 at
www.plainsite.org/dockets/2c3n8cxc2/california-northern-district-court/joshua-claypole-et-al-v-county-of-sanmateo-et-al/
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In the absence of any judicial body, their uncertainty is understandable . . . .” 64 Act II, sc. 1
shows a series of trials that quickly become quite trying for the two sitting as judges. While
Escalus tries to calm the nervous Constable presenting the charges, Angelo simply becomes
more irritated and eventually insulting. And then after Angelo has departed, Escalus continues
the proceedings until he, too, is insulting the parties.
However, Angelo and Escalus have reason to be chapped. Constable Elbow may be the
single most incompetent presenter of facts ever to appear in a judicial proceeding. During the
course of this one scene he manages to insult both Angelo and Escalus by calling them “varlets”
while calling the defendants “honourable” (although as Escalus notes, Elbow only “misplaces”
the descriptions), pronounce proudly that he does “detest” his own wife, and makes a general
hash of everything:
[[Enter ELBOW, and Officers with FROTH65 and POMPEY66.]]
ELBOW
Come, bring them away: if these be good people in
a commonweal that do nothing but use their abuses in
common houses, I know no law: bring them away.
ANGELO
How now, sir! What’s your name? and what’s the matter?
ELBOW
If it Please your honour, I am the poor duke’s
constable, and my name is Elbow: I do lean upon
justice, sir, and do bring in here before your good
honour two notorious benefactors.67
ANGELO
Benefactors? Well; what benefactors are they? are
they not malefactors?
Constance Jordan, “Interpreting Statute in Measure for Measure,” pp. 101-20, in B. Cormack, M.
Nussbaum, & R. Strier, Shakespeare and the Law: A Conversation Among Disciplines and Professions, supra, at
105.
64
65
The aptly named Froth is a frequent customer of a bar and bawdy house. Pompey is a pimp, while
ostensibly only a tapster/barman, working at the establishment, which is owned by the aptly named Mistress
Overdone.
Harold Bloom goes a bit overboard in describing Pompey as “a triumph of Shakespeare’s art who
refuses to be bound by any division between comedy and tragedy.” Harold Bloom, Shakespeare: The Invention of
the Human, at 179 (Riverhead Books 1998).
66
“So recklessly does Shakespeare go on heaping up analogies [in Measure for Measure] between persons
and things of low and those of high estate that when Elbow, the Constable, who must have been Dogberry’s [the
inept Constable from Much Ado About Nothing] cousin, brings Froth and Pompey before Angelo and Escalus in
judicial session, and introduces his prisoners as ‘two notorious benefactors,’ we begin to wonder, in the general
topsy-turvydom, whether there may not be relative truth in the malapropism. At any rate, the upperworld characters
are guilty of far worse moral and mental, if not verbal, confusions.” Harold C. Goddard, The Meaning of
Shakespeare (Vol. 2), at 63 (The University of Chicago Press 1951).
67
- 36 -
ELBOW
If it please your honour, I know not well what they
are: but precise villains they are, that I am sure
of; and void of all profanation in the world that
good Christians ought to have.
ESCALUS
This comes off well; here’s a wise officer.
ANGELO
Go to: what quality are they of? Elbow is your
name? why dost thou not speak, Elbow?
POMPEY
He cannot, sir; he’s out at elbow.
ANGELO
What are you, sir?
ELBOW
He, sir! a tapster, sir; parcel-bawd; one that
serves a bad woman; whose house, sir, was, as they
say, plucked down in the suburbs; and now she
professes a hot-house, which, I think, is a very ill house
too.
ESCALUS
How know you that?
ELBOW
My wife, sir, whom I detest before heaven and your
honour,--
ESCALUS
How? thy wife?
ELBOW
Ay, sir; whom, I thank heaven, is an honest woman,--
ESCALUS
Dost thou detest her therefore?
ELBOW
I say, sir, I will detest myself also, as well as
she, that this house, if it be not a bawd’s house,
it is pity of her life, for it is a naughty house.
ESCALUS
How dost thou know that, constable?
ELBOW
Marry, sir, by my wife; who, if she had been a woman
cardinally given, might have been accused in
fornication, adultery, and all uncleanliness there.
ESCALUS
By the woman’s means?
ELBOW
Ay, sir, by Mistress Overdone’s means: but as she
spit in his face, so she defied him.
POMPEY
Sir, if it please your honour, this is not so.
- 37 -
ELBOW
Prove it before these varlets here, thou honourable
man; prove it.
ESCALUS
Do you hear how he misplaces?
POMPEY
Sir, she came in great with child; and longing,
saving your honour’s reverence, for stewed prunes;
sir, we had but two in the house, which at that very
distant time stood, as it were, in a fruit-dish, a
such dishes; they are not China dishes, but very
good dishes,--
ESCALUS
Go to, go to: no matter for the dish, sir.
POMPEY
No, indeed, sir, not of a pin; you are therein in
the right: but to the point. As I say, this
Mistress Elbow, being, as I say, with child, and
being great-bellied, and longing, as I said, for
prunes; and having but two in the dish, as I said,
Master Froth here, this very man, having eaten the
rest, as I said, and, as I say, paying for them very
honestly; for, as you know, Master Froth, I could
not give you three-pence again.
FROTH
No, indeed.
POMPEY
Very well: you being then, if you be remembered,
cracking the stones of the foresaid prunes,--
FROTH
Ay, so I did indeed.
POMPEY
Why, very well; I telling you then, if you be
remembered, that such a one and such a one were past
cure of the thing you wot of, unless they kept very
good diet, as I told you,--
FROTH
All this is true.
POMPEY
Why, very well, then,--
ESCALUS
Come, you are a tedious fool: to the purpose. What
was done to Elbow’s wife, that he hath cause to
complain of? Come me to what was done to her.
POMPEY
Sir, your honour cannot come to that yet.
- 38 -
ESCALUS
No, sir, nor I mean it not.
POMPEY
Sir, but you shall come to it, by your honour’s
leave. And, I beseech you, look into Master Froth
here, sir; a man of four-score pound a year; whose
father died at Hallowmas: was’t not at Hallowmas,
Master Froth?
FROTH
All-hallond eve.
POMPEY
FROTH
Why, very well; I hope here be truths. He, sir,
sitting, as I say, in a lower chair, sir; ‘twas in
the Bunch of Grapes, where indeed you have a delight
to sit, have you not?
I have so; because it is an open room and good for winter.
POMPEY
Why, very well, then; I hope here be truths.
ANGELO
This will last out a night in Russia,
When nights are longest there: I’ll take my leave.
And leave you to the hearing of the cause;
Hoping you’ll find good cause to whip them all.
ESCALUS
I think no less. Good morrow to your lordship.
[[Exit ANGELO]]
ESCALUS
Now, sir, come on: what was done to Elbow’s wife, once
more?
POMPEY
Once, sir? there was nothing done to her once.
ELBOW
I beseech you, sir, ask him what this man did to my wife.
POMPEY
I beseech your honour, ask me.
ESCALUS
Well, sir; what did this gentleman to her?
POMPEY
beseech you, sir, look in this gentleman’s face.
Good Master Froth, look upon his honour; ‘tis for a
good purpose. Doth your honour mark his face?
ESCALUS
Ay, sir, very well.
POMPEY
Nay; I beseech you, mark it well.
- 39 -
ESCALUS
Well, I do so.
POMPEY
Doth your honour see any harm in his face?
ESCALUS
Why, no.
POMPEY
I’ll be supposed upon a book, his face is the worst
thing about him. Good, then; if his face be the
worst thing about him, how could Master Froth do the
constable’s wife any harm? I would know that of
your honour.
ESCALUS
He’s in the right. Constable, what say you to it?
ELBOW
First, an it like you, the house is a respected
house; next, this is a respected fellow; and his
mistress is a respected woman.
POMPEY
By this hand, sir, his wife is a more respected
person than any of us all.
ELBOW
Varlet, thou liest; thou liest, wicked varlet! the
time has yet to come that she was ever respected
with man, woman, or child.
POMPEY
Sir, she was respected with him before he married with her.
ESCALUS
Which is the wiser here? Justice or Iniquity? 68 Is
this true?
ELBOW
O thou caitiff! O thou varlet! O thou wicked
Hannibal! I respected with her before I was married
to her! If ever I was respected with her, or she
with me, let not your worship think me the poor
duke’s officer. Prove this, thou wicked Hannibal, or
I’ll have mine action of battery on thee.
ESCALUS
If he took you a box o’ the ear, you might have your
action of slander too.
Harold Goddard notes a similarity with another Shakespearean trial in this remark. “Notice the echo
from The Merchant of Venice: ‘Which is the merchant here and which the Jew?’” H.C. Goddard, The Meaning of
Shakespeare (Vol. 2), supra, at 63, daggered footnote.
68
- 40 -
ELBOW
Marry, I thank your good worship for it. What is’t
your worship’s pleasure I shall do with this wicked caitiff?
ESCALUS
Truly, officer, because he hath some offences in him
that thou wouldst discover if thou couldst, let him
continue in his courses till thou knowest what they
are.
ELBOW
Marry, I thank your worship for it. Thou seest, thou
wicked varlet, now, what’s come upon thee: thou art
to continue now, thou varlet; thou art to continue.
ESCALUS
Where were you born, friend?
FROTH
Here in Vienna, sir.
ESCALUS
Are you of fourscore pounds a year?
FROTH
Yes, an’t please you, sir.
ESCALUS
So. What trade are you of, sir?
POMPHEY
Tapster; a poor widow’s tapster.
ESCALUS
Your mistress’ name?
POMPHEY
Mistress Overdone.
ESCALUS
Hath she had any more than one husband?
POMPEY
Nine, sir; Overdone by the last.
ESCALUS
Nine! Come hither to me, Master Froth. Master
Froth, I would not have you acquainted with
tapsters: they will draw you, Master Froth, and you
will hang them. Get you gone, and let me hear no
more of you.
FROTH
I thank your worship. For mine own part, I never
come into any room in a tap-house, but I am drawn
in.
ESCALUS
Well, no more of it, Master Froth: farewell.
[[Exit FROTH.]]
- 41 -
Measure for Measure, Act II sc. 1. So by this point in the extremely trying trial, we do not know
what happened with Constable Elbow’s wife and the prunes, but we have seen a bit of Angelo’s
judicial temperament. Angelo would just as soon whip all of the litigants as try to get to the
bottom of the matter. His parting words express his irritation: “This will last out a night in
Russia,// When nights are longest there: I’ll take my leave.// And leave you to the hearing of the
cause;// Hoping you’ll find good cause to whip them all.” Of course, in Angelo’s defense, while
Escalus continues to try to proceed he gets no further.
But what of the insults that the various litigants fling in the presence of, and even at, the
two judicial officers? Constable Elbow calls the officers “varlets” and calls one defendant,
Pompey, a “wicked caitiff.” Escalus seems to overlook the insults, and even calls Pompey a
“tedious fool.” The judicial nightmare nears the morning awakening as Escalus warns Froth
against continuing to associate with tapsters and dismisses him.
But this still leaves the accused pimp, Pompey, so the case continues. And by now
Escalus’s judicial temperament is gone and he starts insulting the remaining defendant.
ESCALUS
Come you hither to me, Master tapster. What’s your
name, Master tapster?
POMPEY
Pompey.
ESCALUS
What else?
POMPEY
Bum, sir.
ESCALUS
Troth, and your bum is the greatest thing about you;
so that in the beastliest sense you are Pompey the
Great. Pompey, you are partly a bawd, Pompey,
howsoever you colour it in being a tapster, are you
not? come, tell me true: it shall be the better for you.
POMPEY
Truly, sir, I am a poor fellow that would live.
ESCALUS
How would you live, Pompey? by being a bawd? What
do you think of the trade, Pompey? is it a lawful trade?
POMPEY
If the law would allow it, sir.
ESCALUS
But the law will not allow it, Pompey; nor it shall
not be allowed in Vienna.
POMPEY
Does your worship mean to geld and spay all the
youth of the city?
- 42 -
ESCALUS
No, Pompey.
POMPEY
Truly, sir, in my poor opinion, they will to’t then.
If your worship will take order for the drabs and
the knaves, you need not to fear the bawds.
ESCALUS
There are pretty orders beginning, I can tell you:
it is but heading and hanging.
POMPEY
If you head and hang all that offend that way but
for ten year together, you’ll be glad to give out a
commission for more heads: if this law hold in
Vienna ten year, I’ll rent the fairest house in it
after three-pence a bay: if you live to see this
come to pass, say Pompey told you so.
ESCALUS
Thank you, good Pompey; and, in requital of your
prophecy, hark you: I advise you, let me not find
you before me again upon any complaint whatsoever;
no, not for dwelling where you do: if I do, Pompey,
I shall beat you to your tent, and prove a shrewd
Caesar to you; in plain dealing, Pompey, I shall
have you whipt: so, for this time, Pompey, fare you well.
POMPEY
I thank your worship for your good counsel.
[[Aside.]]
but I shall follow it as the flesh and fortune shall
better determine.
Whip me? No, no; let carman whip his jade:
The valiant heart is not whipt out of his trade.
[[Exit.]]
ESCALUS
Come hither to me, Master Elbow; come hither, Master
constable. How long have you been in this place of
constable?
ELBOW
Seven year and a half, sir.
ESCALUS
I thought, by your readiness in the office, you had
continued in it some time. You say, seven years together?
ELBOW
And a half, sir.
- 43 -
ESCALUS
Alas, it hath been great pains to you. They do you
wrong to put you so oft upon ‘t: are there not men
in your ward sufficient to serve it?
ELBOW
Faith, sir, few of any wit in such matters: as they
are chosen, they are glad to choose me for them; I
do it for some piece of money, and go through with
all.
ESCALUS
Look you bring me in the names of some six or seven,
the most sufficient of your parish.
ELBOW
To your worship’s house, sir?
ESCALUS
To my house. Fare you well.
[[Exit ELBOW]]
Measure for Measure, Act II, sc. 1. So to sum up, thanks to the trial presentation skills of
Constable Elbow, and the combined judicial impatience of Angelo and the more usually
restrained Escalus, Froth (a habitue of a bar and bawdy house) and Pompey (the runner of the
bawdy house, in apparent collaboration with Mistress Overdone) are both free men. And in an
effort to find better advocates to appear before him, Escalus has asked Elbow to find the names
of six or seven probable replacements for Elbow. The lack of trial experience in the past and the
decision to dust off laws that had long been ignored are having their impact upon the people of
Vienna.
Yet, whether due to inexperience, cluelessness, or ignorance, how can a careful
practitioner avoid unintentional insults? After all, we do not know what we do not know, and
language can shift. But we can strive to be educated. We can realize that any statement intended
to put another person – a fellow lawyer, a litigant, a witness – in his or her “place” is likely to be
problematic. Yes, some lawyers, litigants, and witnesses need to be reined in. But reining them
in does not need to involve referring to the particular lawyer’s, litigant’s, or witness’s ethnicity,
gender, preference, or simpler still, anything that is not strictly tied to the reason for the reining
in.
Second, the careful practitioner will be alert to how people react to words. In the “play
within a play” scene in Hamlet, Hamlet and Horatio watch carefully to see how King Claudius
reacts to what is played out before him.69 Careful lawyers will be equally alert to how their
hearers react. When words trigger embarrassed reactions (including embarrassment for the
speaker who dropped the verbal brick), an opportunity to learn is presented.
69
Hamlet, Act III, sc. 2 (“Observe mine uncle . . . . Give him heedful note;// For I mine eyes will rivet to
his face,// And after we will both our judgments join// In censure of his seeming.”)
- 44 -
Third, the prudent lawyer will not simply decide that someone else is “too sensitive” or
“just doesn’t get it.” Sometimes we will encounter others who are unduly sensitive. But more
often we will receive feedback that can be used to improve empathy.
Our Hour Upon the World’s Stage
So what do we, as members of a “learned profession” do with all of this? Shakespeare’s
lens can reveal to us the mixed feelings sixteenth and early seventeenth society had about
lawyers and insults. If we are honest, we see many of the same concerns present today.
Law is a powerful and absolutely necessary tool for the development and protection of an
ordered society. Law cannot survive without the careful protection and service of lawyers –
whether they are lawyers in the trenches of negotiations, the conference rooms of depositions, or
behind the benches in courtrooms serving as judges. There is no place in any of these settings
for deliberate insulting, deliberate haranguing, and deliberate insulting. Shakespeare presented
and mocked incompetent and insulting exhibitions; the Model Rules prohibit them.
Gregory R. Hanthorn
Jones Day
1420 Peachtree Street, NE
Suite 800
Atlanta, Georgia 30309-3053
(404) 581-3939
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