Moot Court Debate at American University


  • JUSTICE BRENNAN: ...First of all, on behalf of all three of us, may I congratulate both Counsel on an absolutely superb presentation from each of them of his side of this argument. It is very obvious to us that both of you have dug very deeply into all available sources to turn up a wealth of material that I doubt any of the others that have been interested in this very provocative question have exceeded. I have to tell you that the three of us feel somewhat at a disadvantage. None of us, as you might appreciate, could possibly have found the time to do the kind of job that each of the Counsel did. We did the best, nevertheless, to prepare as thoroughly as we could for this argument.

    Of course, as perhaps you may recall, I said earlier that another reason for our feeling disadvantaged is that ordinarily, as an appellate court, what we do is review judgments based on records that have been made by some lower court or agency.* Now, we haven't had the advantage of either a judgment or a record of a lower court here. And without it --if I may say to you frankly-- we do feel just a little bit at sea.

    But each of us, nevertheless, following in this instance the British judicial practice, not our own, will separately state his position and reaction to the arguments that we heard, and what he can say as to the resolution of the controversy.

    Speaking first, the debate about the authorship of these plays, and indeed as well the sonnets, I think, derives from a perception of the plays as reflecting a vast knowledge in a number of areas --law, medicine, philosophy, geography, and so forth -- and a belief that William Shakespeare of Stratford could never possibly have been exposed to the education and experiences necessary to produce these models of learning and erudition.

    Both of these impressions are, I think, inaccurate. For one thing, the plays, brilliant, witty, and poetic as they undoubtedly undeniably are, nevertheless are not factually perfect --they contain a number of errors, amusingly documented by various scholars. For example, Bohemia is given a seacoast in A Winter's Tale. Characters in Two Gentlemen of Verona board ship at Verona for passage to Milan. Cleopatra wears a corset and plays billiards. Hector quotes Aristotle. Hamlet attends a yet-to-be-founded university. There are clocks in Ancient Rome and gunpowder in the time of King John. Edgar, although a contemporary of pre-Roman King Lear, is familiar with Bedlam, the hospital for the insane in Shakespeare's London. And there are other inaccuracies.

    And as for Shakespeare's supposed expertise in the law, Elizabethan legal experts point out that when he uses legal terms in the plays, they are in fact such terms as he himself would have encountered, it seems to me, in his own basic dealings --the deeds and titles to land, and so forth. Or in his sources, because he did consult sources --notably, I guess, Hollands Shedd's Chronicles of England that was published in 1577.

    Well, if the plays aren't as perfect as the Oxfordians suggest, the historical William Shakespeare was not such an ignorant butcher's boy as he has been made out. While Shakespeare's wife Ann Hathaway and his younger daughter Judith may well have been illiterate, I guess most women in those days were not given educations.

    Yet, Susanna was not illiterate, nor was his father, John Shakespeare, although it has been maintained that the man couldn't even sign his own name. In fact, he was a member of the Burrough Council and fairly prominent in local affairs at Stratford. Now, if he signed certain documents with his mark rather than with his signature, so did most people in those days.

    As for Shakespeare himself, there is every reason to believe that he attended the excellent local grammar school in Stratford, where several of the teachers had Oxford degrees, and that he received a fine education and classical training there.

    Now, we have, sadly, only I think it's six --isn't it?-- examples of Shakespeare's signature, and it is argued that those signatures are written in such a shaky and illegible, illiterate hand that they certainly bespeak no particular education. And yet, it may well be that they are written in a very fine example of the so-called "Secretary method" of writing, which to be sure does look somewhat strange to our twentieth-century eyes, but a sixteenth-century scholar would probably think our writing, at least mine, looks barbarous and untutored.

    The theory that Shakespeare's plays were actually written by Oxford was first put forward only as recently as 1920, as I understand it. And it strikes me that that theory is essentially a conspiracy theory: the Earl of Oxford, for various complicated reasons, could not be publicly recognized as the author of the plays, so he hid under the name of William Shaksper or Shakspere, an actor with the Lord Chamberlain's men, which was, of course, the playing company that put on several, or performed these plays.

    Well, the Stratfordians believe that this actor and William Shakespeare of Stratford were the same man, and, for that reason, the author. Oxfordians, on the other hand, say it was only a cover up.

    Well, I said at the outset this morning that the burden, I thought, was on Oxford to prove that, in order to prevail, that Oxford was indeed the author of the plays, and it wasn't enough to prove that Shakespeare of Stratford was not. To prevail here, as the case was presented to us, it had to be that Oxford proved it, I thought myself, by clear and convincing evidence. It may be that, even applying the ordinary preponderance of evidence standard, the case was not proved as I saw it.

    Unfortunately, too -- and this is the principal reason that I have concluded that the case was not proved-- several of the more important plays actually surfaced after Oxford's death in 1604.

    Now, there is no proof, to me at least, that I thought was essential, that any of these plays which surfaced after 1604 had been written by Oxford before 1604. What evidence there is to suggest that they were written by Oxford before 1604 is, at least in my judgment, inadequate to establish that in fact they were. And that, for me, is sufficient reason to say that the case has not been proved for Oxford.

    It must, it seems to me, be apparent that, if a single one of the plays that surfaced after 1604 was not written by Oxford before his death, then I think the whole case collapses. It may well be that if there were other opportunities, more could be proved than has been submitted on behalf of Oxford today.

    But I can't tell you how much I have enjoyed this experience. It is a little different from the things that go on in our building every day, but near enough like it that it has been a great experience.

    So, in any event, my conclusion is that Oxford did not prove that he was the author of the plays. And so, I feel that the 200 years that elapsed --I guess at least that long-- after Shakespeare's death before any doubt was cast on whether or not he was the author, leaves the thing about where we started. Justice Blackmun?

    *From Oral Arguments Earlier in the Day:

    JUSTICE BRENNAN: This court is --may I just say-- convened, as you know, as an appellate court. The unusual thing about it is not that there is any violation of the religion clauses because we are convened here, but rather that there is no record of any lower court. Ordinarily, as you know, when we hear appeals, we hear appeals from some judgment of some lower court. Here, apparently we are on our own. And because of that, since the Oxford side has the burden of proving its case, which is that de Vere and not Shakespeare was the author f the plays and the sonnets, i just want to emphasize that I think, in the absence of any lower court record or findings or fact, or anything else, the burden is one of trying to establish his case by clear and convincing evidence, not simply by a preponderance of the evidence.

    JUSTICE BLACKMUN: But you didn't clear that with the rest of us.

    JUSTICE BRENNAN: This makes me think of what Tom Denning did, you know. At any event, if my colleagues dissent and think this ought to be by preponderance of the evidence, the rule will be clear and convincing, and let them write the dissents.

    JUSTICE STEVENS: But, Mr. Chief Justice, we are reviewing the work of The Bard --B-a-r-d-- which should be beyond a reasonable doubt.

    JUSTICE BRENNAN: I am not that harsh. But, nevertheless--in any event, it is a heavy burden, however we phrase it, because, as we know, I gather not until 1781 [were] there any doubts expressed as to who was the author of the plays and the sonnets. The authorship was attributed always to Shakespeare of Stratford up till that time, and I think that weighs somewhat as to the burden on Oxford to prove that, no, it was not Shakspere, but he who was the author. -ED]

  • JUSTICE BLACKMUN: Well, I share Acting Chief Justice Brennan's general approach to things. I suppose that's the legal answer, whether it is the correct one causes me greater doubt that I think it does Justice Brennan.

    But one can say that, even accepting the fact that William Shakespeare is not the author, the secondary question which has been emphasized today is whether the Oxfordians have proved their case.

    My own feeling is that they come closer to proving it than anyone else has, and whether that is enough is something that we're supposed to say, I suppose; and yet, I am reluctant to say it.

    It reminds me of two excerpts from the plays that --well, it makes me sad to have to sit on this kind of a case, and that reminds me of the opening lines of The Merchant of Venice, where Antonio was proclaiming there words: "In sooth" --I love that-- "In sooth, I know not why I am so sad. It wearies me, and you say it wearies you" --and he goes on. And then, Salerio says, "Your mind is tossing on the ocean," and that's about where I find myself in trying to decipher the answer to this very fascinating issue.

    The other one is to ask myself what business have I to try to judge this; and hence, I hesitate to do it. And that brings to mind the very profound observation of Isabel in Measure for Measure, when she says, "Oh, it is excellent to have a giant's strength, but it is tyrannous to use it like a giant." That's the way I feel here today, that it is tyrannous and that I shouldn't try to use the judicial process in this kind of thing.

    I have been impressed with the fact that there have been --but I think this is true and accepted --four major claimants or claims advanced on behalf of four major figure in English literary history. The first, of course, was that of Francis Bacon 200 years ago, when a rector named James Wilmot advanced his authorship.

    And then, as Justice Brennan has indicated, that of Edward de Vere in just 1920. But that is sixty-five plus years ago. And then more recently, the claim in 1952 on behalf of Stanley, and again still more recently in 1955 on behalf of Christopher Marlowe.

    But I think, if I judge it correctly, there are no less than fifty-six other names that have been advanced, with more or less serious concern, about the authorship of the Shakespeare plays. That is remarkable, that there are sixty claimants, some of depth and some of not so great depth.

    It reminds me of some other controversies in English literary history, that you people know far better than I. But after all, did Richard III murder the young princes in the Tower of London? An old controversy that has a lot of strength behind it; and yet, Josephine Tey in her more or less recent writings takes the other position.

    And it reminds me also of some of the myths that have grown up around Sherlock Holmes and A. Conan Doyle that I think are fascinating and elusive.

    It is the kind of thing, it seems to me, that English literary history is full of and makes it such a great thing to study and to think about.

    I, for one would much prefer to leave the disposition of this issue to the historians. Whatever we decide today is certainly not the answer to it, because the controversy will go on and on.

    And so, Justice Brennan, I have been groping. I wish we could say this is a political question that the Judiciary need not and cannot decide. But what fun and fascination it has been to hear these very talented scholars present their respective points of view. I share Justice Brennan's comments that we indeed are indebted to both of you for what you have done, for the hours that you have put into this, and for the briefs you have produced. I found them fascinating reading, much better than reading about the Glass-Steagall Act or some of the other fascinating subjects that will occupy us a week from Monday and thereon.

    And so, I express my personal appreciation to the two of you for what you have done. It certainly was presented extraordinarily well and made me wish I were back studying English literature again.

    But thank you very much.

  • JUSTICE STEVENS: As you will note, we are following the English practice of each of the members of the panel expressing his own views, and I think it is a healthy one. I share the views of my colleagues that this has been a delightful experience, and we have been blessed with an extraordinarily fine presentation by both advocates.

    I agree that what one might say is "the judgment," insofar as I must play the role of a judge in resolving what would be a case before us. I think that the burden of proof was not met on the basic issue, the threshold issues, of proving that Shakspere did not write Shakespeare's plays.

    But I want to stress what our Chief Justice indicated at the outset. Our ability to resolve the issue is really very limited, because our time is limited and we have had limited access to the materials that have to be studied in depth to really be totally sure of where to come out.

    But given the problem of the prima facie case, which Counsel for Shakespeare first established --actually, I guess it was his third point-- I would say I am persuaded that, even if William Shakespeare was just a successful businessman and investor in plays, it is very reasonable to assume that he went to school in Stratford and received an education that would at least give him a start in life that was an excellent one. So, I do not think it is correct to assume that he was an uneducated person. That, of course, is just part of the problem.

    I also think that if one takes at face value the First Folio and the references by Heminge and Condell and the references by Digges and Ben Jonson, and one assumes they were being forthright, these references add up to evidence that Shakspere and Shakespeare were the same person and that he was the man from Stratford.

    Digges, after all, as I understand it, was the executor of Shakespeare's will, and Heminge and Condell are names in the will and also were associated in business ventures. They are persons whom one would assume had firsthand knowledge of the principal activities of the man from Stratford.

    So I think the prima facie case is definitely made, and I would think the other bit of evidence that is quite persuasive is in Mere's article or short paragraphs in 1598. He refers to both de Vere and Shakespeare as being excellent writers in, I think it was, comedy.

    Thus, just looking at the face of the documents, one has to say that the prima facie case is made that what the scholars have principally believed over the years is the correct answer.

    I must say, however, that I don't think the contrary view is totally frivolous. I have lingering concerns about some of the gaps in the evidence: the absence of eulogies at the time, in 1616, when Shakespeare died; the absence of writing about Shakespeare during his life; even though there is some evidence, the evidence that does exist is somewhat ambiguous and hard to understand, and it seems to me that one would expect to find more references in people's diaries or correspondence about having seen Shakespeare somewhere or talked to someone who had seen him. And so there is this sort of gnawing uncertainty about the gap, and I think that's part of what has made all of these different people suggest that this extraordinary person must have been someone else.

    I am also very much struck by much of the internal evidence that is assembled in great detail in Mr. Ogburn's book about the various skills that the man had. Just reading it cold, I would tend to draw the inference that the author of these plays was a nobleman; there are just too many places in which nobility is stressed as a standard. In Hamlet's "To be or not to be" soliloquy, the standard is which "is the nobler in the mind." There are all sorts of references to nobility and skills that are familiar to the nobility but unknown to most common people. So, you can't help but have these gnawing doubts that this great author may perhaps have been someone else.

    And I would say, also--perhaps departing from my colleagues--that I am persuaded that, if the author was not the man from Stratford, then there is a high probability that it was Edward de Vere. I think his claim is by far the strongest of those that have been put forward. I think the evidence against the others is conclusive.

    And I must say I am not persuaded by the evidence on dating of the plays, because this is sort of a self-generating thing, where some of the dates were established on the assumption that Shakespeare was in fact the author. I think it is Henslowe's diary that refers to the performances I think in 1594 of King Lear and Hamlet. And everybody says those are earlier versions of plays, but nobody seems to know for sure who really authored those plays. And if one could find out what those performances were and what the real sequence was, I would not put to one side the possibility that the whole sequence has been misdated. I don't think it is something that is so clearly established now that it doesn't warrant further careful study.

    Let me also make a comment or two about the adversary system, something that I am very proud to have something to do with from time to time.

    First of all, I think the arguments that we heard today, as well as the arguments in the briefs, were of very high quality. They were characterized by, among other things, respect for the opponent's position. I find, that when I hear lawyers get off the issue and degenerate into expressions of disrespect for the opponent's position, the argument always suffers. Unfortunately there have been times when this argument has suffered on both sides from a failure to accept the good faith and the honorable motives of the opponents. I find no merit at all in the suggestion that the scholars who are persuaded of the accuracy of the traditional view that the man from Stratford is really the author have been doing anything but expressing their honest conclusions based on their independent research and scholarship.

    And similarly, I think that the Oxfordians are also putting forth honest views that are based on careful and deliberate study and interest in a very, very difficult problem. So I would say that both adversaries are entitled to be respected and to be thanked for their raising the questions that generate further interest and study of this really incomparable author who has given so much to our civilization and whose work does continue to merit the study that we have seen today and that led up to this controversy.

    Second, I would like to suggest that the Oxfordian case suffers from not having a single, coherent theory of the case. When pressed, the Oxfordians respond with too many alternatives that might be true or might not be true. I would submit that, if their thesis is sound, that one has to assume that the conspiracy--I would not hesitate to call it a "conspiracy," because there is nothing necessarily invidious about the desire to keep the true authorship a secret--it had to have been participated in by the men I have mentioned earlier, Heminge and Condell and Digges and Ben Jonson, for sure. I also think it had to have been the result--because the questions of motives are so difficult to answer--it had to have been the result of a command from the monarch. Unless the Queen, advised by her somewhat eccentric but distinguished Prime Minister, concluded, for reasons that we may never thoroughly understand--she did a lot of things that I think people are not sure they understand why she behaved the way she did. But in my opinion the strongest theory of the case requires an assumption for some reason we don't understand, that the Queen and the Prime Minister decided, "We want this man to be writing plays under a pseudonym." And I won't go further.

    Of course, this thesis may be so improbable that it is not worth even thinking about; but I would think that the Oxfordians really have not yet put together a concise, coherent theory that they are prepared to defend, in all respects. And maybe this one is not the right one.

    Finally, I would remind you that, although we have done our best and we agree on the ultimate outcome, the doctrine of res judicata does not apply to this. And I, like my colleagues, want to thank you for the opportunity to participate in this very fascinating endeavor.

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