Brando as Marc Antony
Our favorite federal court judge, U.S. District Judge Thomas Thrash Jr. of Georgia’s Northern District, is once again allowing us to share his ruminations on the brilliance of William Shakespeare. Today’s essay is from a talk he gave last Friday to the Intellectual Property Law Section of the State Bar of Georgia.
In the past, we have run one article about Judge Thrash’s use of Shakespeare in his own arguments and rulings (here) and another by the judge on Shakespeare’s understanding of the legal profession (here). Today he uses his 21 years of experience as a trial lawyer to assess the relative merits of Brutus’ and Antony’s arguments following the assassination of Julius Caesar.
By U.S. District Judge Thomas Thrash, Jr.
It is a real honor and privilege for me to participate in your meeting. This morning, I am going to do something a little unorthodox today by conventional bar association CLE practice. If it works, I think that we all will have some fun this morning; if it does not, then this will be soon forgotten. The title of my part of this session is “Lessons on the Art of Trial Advocacy from William Shakespeare.”
Now, I bet that some of you are thinking to yourselves: “I am a hot shot patent or trademark or copyright lawyer. There is nothing for me to learn from an Elizabethan playwright who has been dead for 500 years.” Well, if you are thinking that, I am going to spend the next 30 minutes or so trying to persuade you that you are wrong.
In doing that, I will concede two points. The first is that William Shakespeare knew nothing about patent law or trademark law or the law of copyright. He knew nothing about that because there was no patent or trademark or copyright law then as we know it today. Think about that for a minute. In 1600 in England, it was perfectly legal for anyone to print and sell the plays of a genius like William Shakespeare. And many did. That is why we have such a variety of published texts for many of his plays.
The second point that I will concede is that the real Shakespeare – the one who actually wrote the plays and not some imaginary pseudo-anonymous author like Sir Francis Bacon – was not a lawyer. With only a couple of exceptions, lawyers and judges do not play large roles in his major plays.
But there is much to be learned from him. In my opinion, Shakespeare was the greatest single writer in the history of the English language. His only rival is the King James version of the Bible. Although only two of Shakespeare’s major plays have lawyers and judges as their central characters, he talks a lot about lawyers and judges and trials. One Shakespearian scholar has suggested that before his father’s financial problems arose, Shakespeare was a pupil at one of the Inns of Court. He poses the hypothesis that Shakespeare got his first taste of the theater by staging plays at his Inn of Court.
Whether that is true or not, there is no doubt that Shakespeare knew a lot about lawyers and the courts of justice. It is well documented that his plays were regularly performed at the Inns of Court. I suspect that there were more than a few law students drinking in the taverns – not to mention frequenting the whorehouses – that surrounded the Globe Theatre on the south side of the Thames River across from the City of London proper, and outside of the jurisdiction of its authorities. In The Taming of the Shrew, Shakespeare has one character say: “And do as adversaries do in law–Strive mightily but eat and drink as friends.” I hope that we will do a little of that eating and drinking as friends over the next two days.
When I say that I will be talking about Shakespeare and the art of trial advocacy, you may anticipate that will be discussing The Merchant of Venice. There is an actual trial in that play which includes the beautiful speech by Portia and the line, “The quality of mercy is not strained.” Or you may anticipate a discussion of Measure for Measure, which is all about law and justice and has another beautiful speech by Isabella on mitigation of punishment.
Instead, however, I will be examining the two funeral orations by Brutus and Mark Antony in Julius Caesar. I believe that a thoughtful analysis and comparison of the two speeches may make us all better advocates.
To set the stage, it is the Ides of March, March 15, 44 B. C. The Roman Republic has been in turmoil and civil war for years. Julius Caesar has famously crossed the Rubicon with his army, has entered Rome, has defeated the patrician forces under Pompey, and is the virtual dictator of Rome. Then a group of conspirators, including Brutus, assassinate him on the floor of the Senate in order– they say – to prevent him from becoming king. They then go out to convince the people that they have done the right thing.
Cassius goes off to speak to one group. We then hear Brutus’ speech to the crowd in the forum:
Brutus: Romans, countrymen, and lovers! Hear me for my cause, and be silent, that you may hear. Believe me for mine honor, and have respect to mine honor that you may believe. Censure me in your wisdom, and awake your senses that you may the better judge. If there be any in this assembly, any dear friend of Caesar’s, to him I say, that Brutus’ love to Caesar was no less than his. If then that friend demand why Brutus rose against Caesar, this is my answer: not that I loved Caesar less, but that I loved Rome more. Had you rather Caesar were living and die all slaves, than that Caesar were dead to live all free men? As Caesar loved me, I weep for him; as he was fortunate, I rejoice at it; as he was valiant, I honor him; but as he was ambitious, I slew him. There is tears for his love; joy, for his fortune; honor, for his valor; and death, for his ambition. Who is here so base that would be a bondman? If any, speak, for him have I offended. Who is here so rude that would not be a Roman? If any, speak, for him have I offended. Who is here so vile that will not love his country? If any, speak, for him have I offended. I pause for a reply.
All: None, Brutus, none.
Brutus: Then none have I offended. I have done no more to Caesar than you shall do to Brutus. The question of his death is enrolled in the Capitol; his glory not extenuated, wherein he was worthy; nor his offenses enforced, for which he suffered death.
[Enter Mark Antony, with Caesar’s body.]
Brutus: Here comes his body, mourned by Mark Antony, who, though he had no hand in his death, shall receive the benefit of his dying, a place in the commonwealth, as which of you shall not? With this, I depart, that as I slew my best lover for the good of Rome, I have the same dagger for myself, when it shall please my country to need my death.
All: Live Brutus! Live! Live!
1st Plebian: Bring him with triumph home unto his house.
2nd Plebian: Give him a statue with his ancestors.
3rd Plebian: Let him be Caesar.
Brutus: Good countrymen, let me depart alone,
And for my sake, stay here with Antony.
Do grace to Caesar’s corpse, and grace his speech
Tending to Caesar’s glories, which Mark Antony
By our permission is allowed to make.
I do entreat you, not a man depart,
Save I alone, till Antony have spoke.” [Exit Brutus]
Well, that is a pretty good speech. Shakespeare did not write bad speeches unless he intended to do so. If you want to hear a bad legal speech, and a hilariously funny one, go to Dogberry’s speech to the Justice of the Peace in Much Ado About Nothing.
But to get back to Brutus, there are a few problems. First, the speech is very abstract, very formal, very rhetorical. He starts out referring to himself in the third person as Brutus. It is only toward the end that he consistently refers to himself as I. And he spends most of his time talking about himself and not Caesar.
Second, he tells the crowd to believe him because of his honor. He has the reputation of being an honorable man. But what if it turns out that he has done something dishonorable, like an act of ingratitude or betraying a friend? Does that mean that the crowd can disbelieve everything that he said.
Most importantly, I think, he fails to connect up Caesar’s ambition and the Romans’ loss of liberty. Like many lawyers in addressing a jury or a judge, Brutus is talking over the heads of his audience. Shakespeare very subtly points this out when he has one of the plebians say, “Let him be Caesar.” The plebian has completely missed the point of Brutus’ speech.
But Brutus at least temporarily has the support of the crowd. Fatally, he leaves and reserves no time for rebuttal. Always try to get the last word in any argument.
Mark Antony’s speech, given with the permission of the conspirators, is of course very famous:
Friends! Romans! Countrymen! Lend me your ears.
I come to bury Caesar, not to praise him.
The evil that men do lives after them;
The good is oft interrèd with their bones:
So let it be with Caesar. The noble Brutus
Hath told you Caesar was ambitious.
If it were so, it was a grievous fault,
And grievously hath Caesar answered it.
Here, under leave of Brutus and the rest–
For Brutus is an honorable man,
So are they all, all honorable men–
Come I to speak in Caesar’s funeral.
He was my friend: faithful and just to me.
But Brutus says he was ambitious,
And Brutus is an honorable man.
He hath brought many captives home to Rome,
Whose ransoms did the general coffers fill.
Did this in Caesar seem ambitious?
When that the poor have cried, Caesar hath wept;
Ambition should be made of sterner stuff.
Yet Brutus says he was ambitious,
And Brutus is an honorable man.
You all did see that on the Lupercal
I thrice presented him a kingly crown,
Which he did thrice refuse. Was this ambition?
Yet Brutus says he was ambitious,
And sure he is an honorable man.
I speak not to disprove what Brutus spoke,
But here I am, to speak what I do know.
You all did love him once, not without cause.
What cause withholds you, then, to mourn for him?
O judgment! Thou art fled to brutish beasts,
And men have lost their reason! Bear with me;
My heart is in the coffin there with Caesar,
And I must pause till it come back to me.
1st Plebian: Methinks there is much reason in his sayings.
2nd Plebian: If thou consider rightly of the matter, Caesar has had great wrong.
Antony’s speech is too long to go straight through it without pause, so I will break it up with my comments. In the beginning the crowd is still with Brutus, so Antony has to start out carefully.
He does this by saying (falsely) that he is not here to praise Caesar. He then refers to his adversary as ‘the noble Brutus.” Then, ever so skillfully, he stabs him in the back with the line, “And Brutus is an honorable man.”
He does it softly and with seeming sincerity here. He repeats the line over and over, however, so that it begins to drip with irony. By the end of the speech, “And Brutus is an honorable man” will be spoken with savage satire.
Antony demolishes the argument that Caesar was an ambitious man. He does this with concrete examples of what Caesar had done or not done, including refusing the crown. He also throws in Caesar’s love of the people. I think that an advocate will always be more successful by appealing to what motivates his audience than by appealing to his own honor or credibility. After disarming the crowd, he praises Caesar and reminds the crowd of why they loved him:
But yesterday, the word of Caesar might
Have stood against the world. Now lies he there,
And none so poor to do him reverence.
O masters! If I were disposed to stir
Your hearts and minds to mutiny and rage,
I should do Brutus wrong, and Cassius wrong,
Who you all know are honorable men.
I will not do them wrong; I rather choose
To wrong the dead, to wrong myself and you,
Than I will wrong such honorable men.
But here’s a parchment with the seal of Caesar;
I found it in his closet. ‘Tis his will.
Let but the commons hear this testament,
Which pardon me, I do not mean to read,
And they would go and kiss dead Caesar’s wounds,
And dip their napkins in his sacred blood,
Yea, beg a hair of him for memory,
And dying, mention it within their wills,
Bequeathing it as a rich legacy
Unto their issue.
4th Plebian: We’ll hear the will! Read it, Mark Antony!
All: The will! The will! We will hear Caesar’s will!
Antony: Have patience, gentle friends. I must not read it.
It is not meet you know how Caesar loved you.
You are not wood, you are not stones, but men;
And being men, hearing the will of Caesar,
It will inflame you; it will make you mad.
‘Tis good you know not that you are his heirs,
For if you should, oh, what would come of it?
4th Plebian: Read the will! We’ll hear it, Antony! You shall read us the will! Caesar’s will!
Antony: Will you be patient? Will you stay awhile?
I have o’ershot myself to tell you of it,
I fear I wrong the honorable men
Whose daggers have stabbed Caesar.
I do fear it.
4th Plebian: They were traitors! “Honorable men”?
All: The will! The testament!
2nd Plebian: They were villains, murderers! The will! Read the will!
Antony: You will compel me then to read the will?
Then make a ring about the corpse of Caesar,
And let me show you him that made the will.
Shall I descend? And will you give me leave?
All: Come down!
Let’s pause here. Okay, Antony has demolished the case that Caesar was ambitious. He now has some tangible evidence that he can show to the crowd – the will. But he is going to create some suspense by not showing it to them yet. That is like a lawyer telling a jury that he is going to tell them how the story ends but later. Antony wants to get the crowd really worked up by seeing a picture in their mind’s eye – the picture of Caesar’ s bloody and mutilated body. He will show them that before he reads the will.
So he says,
If you have tears, prepare to shed them now.
You all do know this mantle; I remember
The first time ever Caesar put it on.
‘Twas on a summer’s evening in his tent,
That day he overcame the Nervii.
Look, in this place ran Cassius’ dagger through.
See what a rent the envious Casca made.
Through this, the well-belovèd Brutus stabbed,
And as he plucked his cursèd steel away,
Mark how the blood of Caesar followed it,
As rushing out of doors to be resolved
If Brutus so unkindly knocked or no;
For Brutus, as you know, was Caesar’s angel.
Judge, O you gods, how dearly Caesar loved him.
This was the most unkindest cut of all,
For when the noble Caesar saw him stab,
Ingratitude, more strong than traitors’ arms,
Quite vanquished him; then burst his mighty heart,
And in his mantle muffling up his face,
Even at the base of Pompey’s statue,
Which all the while ran blood, great Caesar fell.
Oh, what a fall was there, my countrymen!
Then I, and you, and all of us fell down,
Whilst bloody treason flourished over us.
Oh, now you weep, and I perceive you feel
The dint of pity. These are gracious drops.
Kind souls, what weep you when you but behold
Our Caesar’s vesture wounded? Look you here!
Here is himself, marred as you see with traitors.
1st Plebian: Oh, piteous spectacle!
2nd Plebian: O noble Caesar! We will be revenged!
All: Revenge! About! Seek! Burn! Fire! Kill! Slay! Let not a traitor live!
Let’s pause. So now Antony has used his second and third demonstrative aids – the mantle and the body of Caesar. He has set up this straw man – that Brutus and the others are honorable men – and has destroyed it by showing that they are envious traitors and bloody murderers. The crowd only needs one more little push.
Antony: Good friends! Sweet friends! Let me not stir you up
To such a sudden flood of mutiny.
They that have done this deed are honorable.
What private griefs they have, alas, I know not,
That made them do it. They are wise and honorable,
And will no doubt with reasons answer you.
I come not, friends, to steal away your hearts.
I am no orator, as Brutus is,
But, as you know me all, a plain blunt man
That love my friend, and that they know full well
That gave me public leave to speak of him:
For I have neither wit, nor words, nor worth,
Action, nor utterance, nor the power of speech
To stir men’s blood. I only speak right on.
I tell you that which you yourselves do know;
Show you sweet Caesar’s wounds, poor poor dumb mouths,
And bid them speak for me. But were I Brutus,
And Brutus Antony, there were an Antony
Would ruffle up your spirits and put a tongue
In every wound of Caesar that should move
The stones of Rome to rise and mutiny.
All: We’ll mutiny!
1st Plebian: We’ll burn the house of Brutus!
Antony: Why, friends, you go to do you know not what.
Wherein hath Caesar thus deserved your loves?
Alas you know not. I must tell you then:
You have forgot the will I told you of.
All Most true! The will! Let’s stay and hear the will!
Antony: Here is the will, and under Caesar’s seal.
To every Roman citizen he gives,
To every several man, seventy-five drachmas.
2nd Plebian: Most noble Caesar! We’ll revenge his death!
3rd Plebian: O royal Caesar!
Antony: Hear me with patience.
Moreover, he hath left you all his walks,
His private arbors, and new-planted orchards
On this side Tiber. He hath left them you
And to your heirs forever–common pleasures
To walk abroad and recreate yourselves.
Here was a Caesar! When comes such another?
1st Plebian: Never, never! Come! Away! Away!
We’ll burn his body in the holy place,
And with the brands fire the traitors’ houses!
Take up the body! [The crowd exits with the body to attack and burn the houses of the assassins]
Antony: Now let it work! Mischief, thou art a-foot:
Take thou what course thou wilt.
The verdict is in: Mark Antony has just given the greatest and most successful closing argument in all of literature.
Another well known judge has said this about the speeches of Brutus and Mark Antony:
A law school course in trial or appellate advocacy could be built on a comparison of Brutus’s and Antony’s speeches. The weaknesses in the former, which are equally weaknesses in an oral argument to an appellate court or a closing argument to a jury, are its overtly rhetorical character (which is likely to put the audience on its guard), its failure to engage the audience in dialogue, its lack of detail and anecdote, its failure to appeal to the concrete interests of the audience, and the decision to waive rebuttal. Antony, in contrast, ingratiates himself with an audience predisposed to be hostile to him, ticks off three arguments against Brutus’s charge of ambition (they are weak arguments, but since Antony knows that he will have the last word he doesn’t have to worry that they will be picked apart), displays emotion, brandishes Caesar’s will (Antony’s first use of a prop – and how judges and juries love physical evidence, so welcome a relief from lawyers’ endless rushes of words!), tells an anecdote about Caesar, displays Caesar’s shrouded body (the second use of a prop), shows the gashes and bloodstains in Caesar’s toga and then dramatically unveils the naked, mutilated body (the third prop, consisting of wounds more eloquent than words), disclaims oratorical ability in a successful effort to disarm the audience, uses the terms of the will to appeal to the audience’s concrete interests and sense of gratitude, invites frequent interruption to create the illusion of conversational give-and-take, and ends in a state of high excitement. Antony’s speech is concrete, vivid, personal, colloquial, versatile, dramatic, eloquent, blunt, and emotional. It is a model of forensic oratory, though obviously not one to be imitated slavishly by lawyers in an American court.
That is Seventh Circuit Court of Appeals Judge Richard Posner in his book Law & Literature. So I submit that good ol’ Will Shakespeare has much to teach us even now 500 years after he wrote his last play. That is why the plays are still read and performed. Certainly he has enriched my life, particularly in the last few years.
I hope that this presentation has been of some value to you and not just much ado about nothing. And I hope that you are not recalling what Macbeth says as his faces his ultimate calamity: “Life’s but a walking shadow, a poor player that struts and frets his hour upon the stage and then is heard no more. It is a tale told by an idiot, full of sound and fury signifying nothing.”
Rather, I hope that you are thinking of Hamlet: “What a piece of work is man! How noble in reason, how infinite in faculty, in form and moving how express and admirable, in action how like an angel, in apprehension how like a god!
Thank you.
