Tuesday, April 16, 2013

No Salique Law Sallies, Pretty Please

For we will hear, note[,] and believe in heart
That what you speak is in your conscience wash'd
As pure as sin with baptism.

King Henry, Henry V (I.2)

When most people hear the word “lawyer” they react in a way that ain’t pretty. In Shakespeare one finds plenty of suggestions that his perception of lawyers ‘tweren’t pretty either. I was recently reminded of a (potentially) hilarious example of the unpretty perception Shakespeare had of the law and lawyers and how that example provides an efficient lesson.

The passage of which I speak is from Henry V. After a rousing Prologue, the play’s main action begins with a whispered exchange between the Archbishop of Canterbury and a colleague about how, if a certain bill offered up in the House of Commons passes, they, as churchmen, stand to use a whole bunch of land and stuff. Now that the young, formerly profligate Prince Hal has just assumed the throne, these churchmen want to take advantage of unstable times to kill the bill.

Sure, these men have noticed Prince Hal’s remarkable transformation:

Never was such a sudden scholar made;
Never came reformation in a flood,
With such a heady currance, scouring faults
Nor never Hydra-headed wilfulness
So soon did lose his seat and all at once
As in this king.

Yet these churchmen believe that, in terms of the bill in question, the King is, at worst, indifferent and, at best, slightly inclined to their perspective. Therefore, they plan to press their cause—which involves inciting war against France—before the King hears from a French Ambassador who has just arrived at court.

What the young King wants from these churchmen—his learned counselors—is a quick lesson in “Salique” (or “Salic”) law. Specifically, the question presented is:

Why the law Salique that they have in France
Or should, or should not, bar us in our claim[?]

The “claim” to which King Henry refers is to certain lands that the French think they own. And the King is well aware that he is likely to meet great resistance if he asserts such a claim. Indeed, pursuing that claim shall likely “awake our sleeping sword of war.” Therefore, King Henry cautions his advisors not to “fashion, wrest, or bow [their] reading” of the law so as to make it seem more favorable to his claim. He wants the unvarnished truth. Human blood is, after all, on the line:

We charge you, in the name of God, take heed;
For never two such kingdoms did contend
             Without much fall of blood—

But, of course, just before this scene, Shakespeare had shown us how the churchmen who are about to explain the law to him have their own agenda. They want war with France! They want the Salique law—which supposedly applied to French territorial holdings in Germany during the early Middle Ages—to be construed so as justifying an invasion of French territory and thus diverting attention from the dreaded bill that would strip the Church of “the better half of [its] possession.” In short, these counselors are not interested in delivering an objective interpretation of legal text. And when the Archbishop of Canterbury launches into his exegesis of Salique law, the audience, unlike Henry V, knows that the King’s counselors are not pure vessels of Truth who will fairly represent The Law.

The speech Canterbury delivers is, however, designed to induce a kind of confidence—but not the kind that comes from sparking real understanding; it is a false or desperate confidence in another that comes from being overwhelmed by that person’s pedantry such that the client is willing to cede judgment to the counselor just to bring an end to the agony. Indeed, the explanation of Salique law that Canterbury offers up exemplifies lawyers at their most mind-numbingly offensive. You don’t have to read the whole speech to get the idea. But the full comic effect requires hearing someone deliver it out loud, starting in soothing tones at a moderate pace and gradually picking up steam until the delivery is as unintelligible as the substance is impenetrable:

Then hear me, gracious sovereign, and you peers,
That owe yourselves, your lives and services
             To this imperial throne. There is no bar
To make against your highness' claim to France
But this, which they produce from Pharamond,
             'In terram Salicam mulieres ne succedant:'
             'No woman shall succeed in Salique land:'
Which Salique land the French unjustly gloze
To be the realm of France, and Pharamond
             The founder of this law and female bar.
             Yet their own authors faithfully affirm
That the land Salique is in Germany,
Between the floods of Sala and of Elbe;
             Where Charles the Great, having subdued the Saxons,
             There left behind and settled certain French;
             Who, holding in disdain the German women
             For some dishonest manners of their life,
             Establish'd then this law; to wit, no female
             Should be inheritrix in Salique land:
             Which Salique, as I said, 'twixt Elbe and Sala,
             Is at this day in Germany call'd Meisen.
             Then doth it well appear that Salique law
             Was not devised for the realm of France:
             Nor did the French possess the Salique land
             Until four hundred one and twenty years
             After defunction of King Pharamond,
             Idly supposed the founder of this law;
             Who died within the year of our redemption
             Four hundred twenty-six; and Charles the Great
             Subdued the Saxons, and did seat the French
             Beyond the river Sala, in the year
             Eight hundred five. Besides, their writers say,
             King Pepin, which deposed Childeric,
             Did, as heir general, being descended
             Of Blithild, which was daughter to King Clothair,
             Make claim and title to the crown of France.
             Hugh Capet also, who usurped the crown
             Of Charles the duke of Lorraine, sole heir male
             Of the true line and stock of Charles the Great,
             To find his title with some shows of truth,
             'Through, in pure truth, it was corrupt and naught,
             Convey'd himself as heir to the Lady Lingare,
             Daughter to Charlemain, who was the son
             To Lewis the emperor, and Lewis the son
             Of Charles the Great. Also King Lewis the Tenth,
             Who was sole heir to the usurper Capet,
             Could not keep quiet in his conscience,
             Wearing the crown of France, till satisfied
             That fair Queen Isabel, his grandmother,
             Was lineal of the Lady Ermengare,
             Daughter to Charles the foresaid duke of Lorraine:
             By the which marriage the line of Charles the Great
             Was re-united to the crown of France.
             So that, as clear as is the summer's sun.
             King Pepin's title and Hugh Capet's claim,
             King Lewis his satisfaction, all appear
             To hold in right and title of the female:
             So do the kings of France unto this day;
             Howbeit they would hold up this Salique law
             To bar your highness claiming from the female,
             And rather choose to hide them in a net
             Than amply to imbar their crooked titles
             Usurp'd from you and your progenitors.

In response to this interminable recitation, which is anything but “clear as the summer's sun,” King Henry asks in exasperation, “May I with right and conscience make this claim?” In other words, just give me a direct answer to my friggin’ question!
Good lawyers frontload the answers to their clients’ questions in clear and accessible terms. Good lawyers do not bludgeon their clients with obfuscating legal analysis so that either (1) the client is merely induced to do what the lawyer wants the client to do or (2) the client has received nothing of value from the exchange—the lawyer has merely covered his own arse—and the client must still make a dire decision, while continuing to feel hopelessly alone. Perhaps we can call this thing that good lawyers do not do “the Salique Sally Syndrome.” And lawyers should “in the name of God, take heed” not to succumb, lest their words be used to “give edge unto the swords/That make such waste in brief mortality.” (I am reminded of a certain infamous “torture memo.”) At the very least, Salique Sallies are not likely to prevent crappy decision-making.

1 comment:

  1. In the early pages of a novel about life in academia, called "Stoner", the protagonist is asked, in a somewhat Socratic style beatdown, what the meaning is of Shakespeare's sonnet number 73. The sonnet is recited in the novel and as I read it, I imagined myself in that classroom trying to answer the professor's question. The character in the story was saved by the bell, but no such luck for me; I was a little stumped and slightly embarrassed by my own lack of imagination. So I thought of you; I wondered, would Gretchen take requests on her blog? what might a real expert's thoughts on the question be? Of course, the subject of this blog restricts the question further to its relevance to legal landscapes, but I would still love to hear what you think. If I'm not mistaken, I think it may even have application to blogging more generally.