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The Shakespeare Canon of Statutory Construction

by Justice John Paul Stevens

Abridged from “The Shakespeare Canon of Statutory Construction”
UNIVERSITY of PENNSYLVANIA LAW REVIEW (v.140: no. 4, April 1992)

John_Paul_Stevens,_SCOTUS_photo_portraitThe Duke of Gloucester, later King Richard III, begins his opening soliloquy with the famous line: “Now is the winter of our discontent.” The listener, who at first assumes that the word “now” refers to an unhappy winter, soon learns that war-torn England has been “made glorious by this son of York.” It is now summer not winter and “grim-visag’d War hath smooth’d his wrinkled” forehead. Words—even a simple word like *now*—may have a meaning that is not immediately apparent. Like the seasons, periods of war and peace come and go. As times change there is also a fluctuation in perceptions about the importance of studying humanistic values and their relation to rules of law. The plays and poems of William Shakespeare, sometimes collectively described as the “Shakespeare Canon,” are perhaps the most stimulating and exciting works in the English language. Canons of statutory construction, in contrast, are probably the dullest materials that law students study. For these reasons, this essay includes a mixture of comment on two apparently unrelated subjects: first, the unorthodox view that Edward de Vere, the Seventeenth Earl of Oxford, is the true author of the Shakespeare Canon and, second, the utility of certain canons of statutory construction in the search for truth and justice.

Because Shakespeare’s plays are typically divided into five acts, I must, of course, discuss five canons of statutory construction.

ACT I

The first canon of statutory construction is obvious: “Read the statute.” The Supreme Court has reminded us over and over again that when federal judges are required to interpret acts of Congress, they must begin by reading the text of the statute. Although this proposition is universally accepted, debate often arises over the question of whether there is ambiguity in the text, and if so, how far behind that text the judge may go in the quest for the author’s intended meaning. The text of the First Folio, published in 1623, seven years after William Shakespeare’s death, unambiguously identifies him as the author of the Shakespeare Canon. Moreover, respected scholars are virtually unanimous in their conviction that the man from Stratford-on-Avon is the author of the masterpieces that are attributed to him. Nevertheless, questions that were raised by such skeptics as Mark Twain, Walt Whitman, Henry James, John Galsworthy, and Sigmund Freud still intrigue those mavericks who are persuaded that William Shakespeare is a pseudonym for an exceptionally well-educated person of noble birth who was close to the English throne.

Edward de Vere, the Seventeenth Earl of Oxford, was such a person. If we could find an original draft of one of Shakespeare’s plays, or an excerpt in his own handwriting, or even a signed statement identifying himself as the author, we would have the kind of unambiguous evidence of authorship that would put an end to the matter. But the evidence of Shakespeare’s handwriting that we do have is of an entirely different character. It consists of six signatures on legal documents, each suggesting that merely writing his name was a difficult task and, remarkably, that his name was Shaksper rather than Shakespeare. Indeed, the references to the man from Stratford in legal documents usually spell the first syllable of his name with only four letters: Shak- or sometimes Shag- or Shax- whereas the dramatist’s name is consistently rendered with a long “a.” For that reason, the protagonists of the Earl of Oxford’s cause make a point of distinguishing between Shakesper and Shakespeare. In this respect, they are, in effect, relying on the first canon of statutory construction. In response, the Stratfordians point out that signatures, like statutes, should be read in their contemporary context, that incorrect spelling was common in Elizabethan England, and that we should always be conscious of the possibility of a scrivener’s error. This response, like the Oxfordian response to the text of the First Folio, indicates that this is a case in which we must go beyond the first canon.

ACT II

The second canon of statutory construction is much like the first: “Read the entire statute.” Courts often tell us that the meaning of a particular statutory provision cannot be divined without reading the entire statute. Similarly, the more of Shakespeare’s writing that we read, the more we learn about him. At least, that is the position that the Oxfordians advocate. As evidence of the author’s probable noble birth, they point out that all but one of his plays—The Merry Wives of Windsor—are about members of the nobility. Even more striking is Shakespeare’s repeated reference to nobility as the highest standard of excellence. The question that a lonely Hamlet asked himself was “whether ’tis nobler in the mind to suffer the slings and arrows of outrageous fortune, or to take arms against a sea of troubles, and by opposing, end them.” In the first act of Macbeth, when Duncan proclaimed his succession, he noted that “signs of nobleness, like stars, shall shine on all deservers.” When Mark Antony wanted to explain to Julius Caesar why there was no reason to fear Cassius, it was enough merely to state: “He is a noble Roman, and well given.” And after the conspirators had been defeated, Anthony gave Brutus the highest possible praise by referring to him as “the noblest Roman of them all.”

Shakespeare’s account of the events that took place on the Ides of March may also shed light on his views about the common man. When Julius Caesar walked though the streets of Rome, the crowds greeted him with unmixed enthusiasm—obviously in favor of offering him the crown. But when he was brutally murdered in full view of countless witnesses, a few well-chosen words from Brutus, the leader of the murderous gang, were sufficient to satisfy the crowd and earn their unquestioning support. Then a few minutes later, Mark Antony’s marvelous address to his “Friends, Romans, [and] countrymen” had the mob, once again, convinced that Caesar was their hero. Admittedly, it was a great speech, but how much respect for the common man does this sort of flip-flop-flip reveal? Perhaps the answer is found in Casca’s description of the crowd’s reaction when Caesar refused the crownfor the third time:

“As he refus’d it, the rabblement howted, and clapp’d their chopp’d hands, and threw up their sweaty night-caps, and utter’d such a deal of stinking breath because Caesar refus’d the crown, that it had, almost, chok’d Caesar, for he swounded, and fell down at; and for mine own part, I durst not laugh, for fear of opening my lips and receiving the bad air.”

Of course, the author of such a comment need not be of noble birth, but it seems appropriate to pause to take note of the fact that Edward de Vere was not an ordinary nobleman. In her biography of Queen Elizabeth, Carolly Erickson, after relating contemporary gossip about the Queen’s relationship with the Earl of Leicester, had this to say about de Vere:

“Elizabeth too, it was said, was seducing handsome young men and keeping them under surveillance by her well-paid spies when they were not in amorous attendance on her. Prominent among these favorites was Edward de Vere, Earl of Oxford, a boyish, hazel-eyed young courtier whose expression combined poetic languor and aristocratic superciliousness. He was athletic and acquitted himself brilliantly in the tiltyard, dashing fearlessly, lance lowered, against any and all comers and retiring the victor despite his youth and slight build. He was an agile and energetic dancer, the ideal partner for the Queen, and he had a refined ear for music and was a dexterous performer on the virginals. His poetry was unusually accomplished, and his education had given him a cultivated mind, at home with the antique authors Elizabeth knew so well.” Erickson, The First Elizabeth, (1983) p. 267.

When Edward de Vere was twelve years old, his father died and he became a royal ward in Sir William Cecil’s household. Cecil, also known as Lord Burghley, was the Queen’s principal adviser and a master of intrigue who controlled an elaborate network of spies. In Hamlet, the character Polonius is unquestionably a caricature of Burghley. His position as advisor to the King, his physical appearance, his crafty use of Rosencrantz and Guildenstern to try to ascertain the cause of Hamlet’s antic disposition, and his employment of Reynaldo to spy on his own son, Laertes, while away at school, are all characteristic of Burghley.*

NOTE *There is nothing original in pointing out that Polonius is clearly based on old Lord Burghley—merely in showing how close the resemblance is in detail. All the Essex faction detested the politic old man, who was irremovable until his death in 1598; after that it was safe to portray him as Polonius. Hamlet describes Polonius to his face: “old men have grey beards, their faces are wrinkled, their eyes purging thick amber and plum-tree gum . . . together with most weak hams.” Those who are familiar with Burghley’s letters in his last years well know that they are full of his querulous complaints about his health, the weakness of his limbs, his gout, his running eyes. One clue to Burghley’s hold on power was his remarkable intelligence system. This is clearly rendered in Polonius’ interview with Reynaldo, setting him to spy on his son’s doings in Paris and report on them. Burghley’s elder son, Thomas, had had an unsatisfactory record in France and been similarly reported on.” A.L. Rowse, The Annotated Shakespeare (1988) 1725–26.

One who had lived in his house, as de Vere did, and therefore had first-hand knowledge of Burghley’s use of a spy to report on the activities of his oldest son, could well be responsible for the scene including Reynaldo, a scene that seems to have no purpose except to illuminate Polonius’s—or Burghley’s—character. The suspicion that there is an autobiographical element in Hamlet increases when one recognizes the parallel between Hamlet’s relationship with the fair Ophelia—the daughter of Polonius—and the fact that at the age of twenty-one de Vere married Anne Cecil, the daughter of Lord Burghley. These are, of course, only tiny fragments from the text of the Shakespeare Canon. They are sufficient, however, to lead us to the third canon of statutory construction.

ACT III

This canon is much like the first and second, but it adds the requirement that the text be read in its contemporary context. The third canon therefore tells us that we should direct our attention to the sixteenth century context that produced the genius who created the Shakespeare Canon. In those days relatively few people could read and write the English language, and those who were familiar with the leading works of Latin and Greek literature were even more scarce. Edward de Vere was such a person. In Lord Burghley’s home he received instruction from themost accomplished tutors in England and later received degrees at both Cambridge and Oxford and became a member of Gray’s Inn. On the other hand, we know little about the education of William Shaksper, the man from Stratford-on-Avon. His father and two daughters, one of whom was married to a physician, were apparently illiterate. William did not attend Oxford or Cambridge and, indeed, there is no record of his attendance at any school. Perhaps it was the assumption that Shaksper’s formal education was much too limited for him to have acquired the largest vocabulary of any author who ever lived that led other authors like Mark Twain and John Galsworthy to doubt his authorship of the Shakespeare Canon. Knowledge of the contemporary context provides these possible answers to this concern. The most telling contemporary argument, however, is found in Ben Jonson’s tribute to Shakespeare in the introduction to the First Folio. Because Jonson must have been well acquainted with his leading competitor as a successful dramatist, these works take on special significance:

“And though thou hadst small Latin and less Greek,

From thence to honour thee, I would not seek
For names; but call forth thundering Aeschylus,
Euripides, and Sophocles . . .
To life again, to hear thy buskin tread,
And shake a Stage…”

The emphasis is, of course, on the words “though thou hadst small Latin and less Greek” as evidence that the author of the Shakespeare Canon was a man of limited formal education. The Oxfordians, however, are not without a contemporary reply. They argue that the words “though thou hadst small Latin and less Greek” were ambiguous because the word “though” sometimes conveyed the meaning “even if.” Thus, the use of this ambiguous term may have been a conspiratorial ploy to preserve the anonymity of the true author of the Canon. If you find this rejoinder a little hard to swallow, perhaps you should reflect on the ambiguity in another quite famous line by Jonson—”Drink to me, only, with thine eyes.” Is this a plea for his lover’s abstinence: asking her not to drink to him with anything but here yes? Or, more probably, is it a subtle invitation to drink only to Jonson—to save her inviting glances for him alone? Does the word “only” modify the noun “eyes” or the pronoun “me”?

ACT IV

Since ambiguity persists, we must turn to the fourth canon of statutory construction. If you are desperate, or even if you just believe it may shed some light on the issue, consult the legislative history.

The study of legislative history is itself a debatable and complex subject, including subtopics such as the respective importance of committee reports, debates on the floor of Congress, and the fact that Congress failed to enact a proposed bill that would have unambiguously resolved the point at issue. It also requires an ability to discount comments manufactured by staff members to appease lobbyists who were unable to persuade legislators to conform the statutory text to their clients’ interests…. The Court is sometimes skeptical about the meaning of a statute that appears to make a major change in the law when the legislative history reveals a deafening silence about any such intent. This concern directs our attention to three items of legislative history that arguably constitute significant silence. First, where is Shakespeare’s library? He must have been a voracious reader and, at least after he achieved success could certainly have afforded to have his own library. Of course, he may have had a large library that disappeared centuries ago, but it is nevertheless of interest that there is no mention of any library, or of any books at all, in his will, and no evidence that his house in Stratford ever contained a library. Second, his son-in-law’s detailed medical journals describing his treatment of numerous patients can be examined today at one of the museums in Stratford-on-Avon. Those journals contain no mention of the doctor’s illustrious father-in-law. Finally—and this is the fact that is most puzzling to me—there is the seven-year period of silence that followed Shakespeare’s death in 1616. Until the First Folio was published in 1623, there seems to have been no public comment in any part of England on the passing of the greatest literary genius in the country’s history

ACT V

The Fifth canon of statutory construction requires judges to use a little common sense. This canon is expressed in various ways. For example: An interpretation that would produce an absurd result is to be avoided because it is unreasonable to believe that a legislature intended such a result. Both the Oxfordians and the Stratfordians believe this canon provides the answer to the authorship question. The traditional scholars consider it absurd to assume that William Shakespeare, who is known to have made a fortune as an investor in the Elizabethan theater, if not also as an actor and playwright, was just a front for a gifted author who, for reasons unknown, elected to conceal his true identity from posterity. They point out that at least one of Shakespeare’s plays, The Tempest, is generally considered to have been written several years after de Vere’s death in 1604, and that the explanations for his use of a pseudonym depend on highly improbable theories of conspiracy, for at least Ben Jonson and Lord Burghley would surely have known the true identity of the author of the Shakespeare Canon. Nothing short of a royal command could have induced the author to remain anonymous.

The Oxfordians respond to the argument that it is absurd to claim that de Vere authored a play that was first published several years after his death by pointing out that there is great uncertainty about the dates when the plays were actually written. They also suggest that the possibility of a royal command may not be so absurd after all because Queen Elizabeth made an extraordinary grant to de Vere. Using a formula that was characteristic of special payments to members of the Secret Service, on June 26, 1586, she signed a privy seal warrant granting de Vere an annuity of £1,000 per year for which no accounting was to be required. This was an unusually large amount at the time and the grant continued for the remaining eighteen years of de Vere’s life, it having been renewed by King James. The Queen, it appears, may have been a member of the imaginative conspiracy and for reasons of her own may have decided to patronize a gifted dramatist, who agreed to remain anonymous while he loyally rewrote much of the early history of Great Britain.

Whatever one may think of the fifth canon as a method of analyzing the authorship question, before I leave the subject I want to refer briefly to [two] cases that suggest that the fifth canon should tell us something about justice. In The Merchant of Venice, as security for a loan of three thousand ducats, Antonio promised that if he should default, Shylock could have “a pound of his fair flesh to be taken and cut off from whatever part of his body” might please Shylock. As might have been predicted, Antonio did default and Shylock demanded literal performance of the terms of the bargain. In the end, however, justice was served by Portia’s even more literal interpretation of the bond:

“Tarry a little, there is something else.
This bond doth give thee here no jot of blood;
The words expressly are “a pound of flesh.”
Take then thy bond, take thou thy pound of flesh,
But in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are by the laws of Venice confiscate
Unto the State of Venice.”

Although Portia’s ruling may seem somewhat technical, she was actually making a just application of the fifth canon of statutory construction.

In Measure for Measure, Claudio was sentenced to death for the crime of fornication. Since Julietta was pregnant and there was therefore no question about Claudio’s guilt, and since the text of the law was perfectly clear, Angelo (who had been left in charge of law enforcement by the Duke) had no choice but to insist on literal application of the statute. Otherwise, he would:

“Make a scarecrow of the law,
Setting it up to [frighten] the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror

Nothing, of course, could be more damaging to the fabric of society than allowing the law against fornication to deteriorate into a mere scarecrow. Accordingly, it was imperative that the death penalty be administered without delay.

Fortunately, for Claudio, however, three Acts later, the all-powerful Duke reappeared and pardoned him in the nick of time. Unlike Portia in The Merchant of Venice, who served justice by using one literal reading of the bond to trump another, the Duke in Measure for Measure simply enforced the fifth canon, barely pausing to explain why any other result would have been unjust and absurd

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