When Andrew asked me if I would write a post for Shakespeare’s birthday, I enthusiastically agreed. I had just been rewatching Kenneth Branagh’s film, Henry V and as a dedicated Anglophile thought, this will be easy! I subsequently realized that as a writer for the Law Library’s blog I would need to write about Shakespeare and the law – and what did Henry V have to do with the law? Surely it is a play about war and Henry’s conquest of France with the penultimate scenes at the battle of Agincourt and the rallying St. Crispian’s day speech. The primary connection I could make between Shakespeare and the law was the famous (or, for those of us in the legal profession, infamous) quote from Henry VI, Part 2, Act IV: “The first thing we do, let’s kill all the lawyers.” But while I was biting my nails and worrying about this post, I began to reread Henry V and realized that the action in the play actually commences with a lengthy speech on Salic law and Henry’s right to the throne of France.
Henry V opens with a setting of the scene by the Chorus and then a brief discussion between the Archbishop of Canterbury and the Bishop of Ely. The bishops are concerned about a bill currently pending in Parliament: “If it pass against us, We lose the better half of our possession” (Act I, Scene I). The bishops then move on to a discussion of the transformation of the king’s character from the rough, wild youth found in Henry IV to a king “full of grace and fair regard and a true lover of the holy Church.” However, to ensure the permanence of this transformation, the Archbishop of Canterbury reveals to his fellow prelate that he has offered a large sum in support of Henry’s ambitions in France: “For I have made an offer to his Majesty, […] as touching France, to give a greater sum than ever at one time the clergy yet did to his predecessors part withal.” Moreover, this selfsame Archbishop would provide Henry with a justification for his war.
Henry’s claim to the throne of France could be traced back to his great grandfather, Edward III, whose mother, Isabella of France, was the daughter of Philip IV of France. When Philip’s son, Charles IV, died without a direct male heir the throne passed to Philip, Count of Valois, who was a first cousin to the French king. Edward III initially did not press a claim to the throne of France but later disputes between the French and English led Edward to assert his claim and initiate the 100 Years War. It is this claim about which Henry V is seeking advice at the beginning of play: “My learned lord, we pray you to proceed,/ […] Why the law Salic, that they have in France/ Or should or should not bar us in our claim.” (Act I, Scene 2).
The Archbishop’s speech on Salic law, which supposedly prohibits a woman from inheriting, is a masterpiece of legalistic reasoning. He begins by summarizing the French argument against Henry’s claim: “But this, which they produce from Pharamond: […] No woman shall succeed in Salic land.” This would mean that not only could a woman not succeed but also that she could not pass on to any male children a claim to inherit.
Despite this seemingly clear bar to Henry’s claim, however, the Archbishop argues that this is not the case at all. The reason? Salic law does not operate in France! “Which Salic land the French unjustly gloze to be the realm of France […] Yet their own authors faithfully affirm/ That the land Salic is in Germany,/ Between the floods of Saale and Elbe.” The Archbishop of Canterbury continues to throw out justification after justification, arguing next that various French kings, including the usurping Hugh Capet, had in fact justified their claims to the French throne through the female line. He finishes his argument with a declaration that the French are entirely in the wrong and have illegally “usurped” the French throne from Henry and his “progenitors.”
The Salic Law is the name given to a legal code composed during the time of Clovis of France in the 6th century. The code was composed of 65 articles which covered various issues including theft, murder, rape, magicians and wergeld (Titles II, III, XI, XII, XIII, XIX, XLI, LXII). Article LIX covered the inheritance of private property. According to this law, women could inherit private property except in Salic territory: “But of Salic land no portion of the inheritance shall come to a woman: but the whole inheritance of the land shall come to the male sex.” It is interesting to note, that some scholars believe that this legal code was lost for much of the Middle Ages. Certainly, the first occurrence of the term, Salic Law according to the Oxford English Dictionary, dates to 1548.
Shakespeare’s Henry V is convinced of the rightfulness of his claim and proves it by his conquest of the French territory. But, as the Chorus tells us in the play’s Epilogue, right is not enough to ensure the welfare of a kingdom or two:
“Small time, but in that small most greatly lived
This star of England. Fortune made his sword,
By which the world’s best garden he achieved,
And of it left his son imperial lord.
Henry the Sixth in infant bands crowned King
Whose state so many had the managing
That they lost France and made his England bleed.”
A note: there is no record of Shakespeare’s actual birth date, but many believe he was born on April 23, 1564. This idea is particularly popular since he died on April 23, 1616, and it seems right to many that the playwright’s life should itself be so tidily bracketed. However, we do know that he was baptized on April 26, 1564, at Holy Trinity Church in Stratford-upon-Avon.