King Henry the Fourth, Part I

In Act III Sc. 1, we have the partition of England and Wales between Mortimer, Glendower, and Hotspur, and the business is [79] conducted in as clerk-like, attorney-like fashion, as if it had been the partition of a manor between joint tenants, tenants in common, or coparceners.

Glend. Come, here’s the map; shall we divide our right,
According to our three-fold order ta’en?

It may well be imagined, that in composing this speech Shakespeare was recollecting how he had seen a deed of partition tripartite drawn and executed in his master’s office at Stratford.

Afterwards, in the same scene, he represents [80] that the unlearned Hotspur, who had such an antipathy to "metre ballad-mongers" and "mincing poetry," fully understood this conveyancing proceeding, and makes him ask impatiently,

Shakespeare may have been taught that "livery of seisin" was not necessary to a deed of partition, or he would probably have directed this ceremony to complete the title.

So fond was he of law terms, that afterwards, when Henry IV. is made to lecture the Prince of Wales on his irregularities, and to liken him to Richard II., who, by such improper conduct, lost the crown, he uses the forced and harsh figure, that Richard

I copy Malone’s note of explanation on this line: "Gave himself up absolutely to popularity. A feoffment was the ancient mode of [81] conveyance, by which all lands in England were granted in fee-simple for several ages, till the conveyance of lease and release was invented by Serjeant Moor about the year 1630. Every deed of feoffment was accompanied with livery of seisin, that is, with the delivery of corporal possession of the land or tenement granted in fee."

To "sue out livery" is another law term used in this play (Act IV, Sc. 3)—a proceeding to be taken by a ward of the crown, on coming of age, to obtain possession of his lands, which the king had held as guardian in chivalry during his minority. Hotspur, in giving a description of Henry the Fourth’s beggarly and suppliant condition when he landed at Ravenspurg, till assisted by the Percys, says,

King Henry the Fourth, Part II

Arguments have been drawn from this drama against Shakespeare’s supposed great legal acquirements. It has been objected to the very amusing interview, in Act I, Sc. 2, between Falstaff and the Lord Chief Justice, that if Shakespeare had been much of a lawyer, he would have known that this great magistrate could not examine offenders in the manner supposed, and could only take notice of offences when they were regularly prosecuted before him in the Court of fling’s Bench, or at the assizes. But although such is the practice in our days, so recently as the beginning [83] of the eighteenth century that illustrious Judge, Lord Chief Justice Holt, acted as a police magistrate, quelling riots, taking depositions against parties accused, and, where a prima facie case was made out against them, committing them for trial. Lord Chief Justice Coke actually assisted in taking the Earl and Countess of Somerset into custody when charged with the murder of Sir Thomas Overbury, and examined not less than three hundred witnesses against them— writing the depositions with his own hand. It was quite in course that those charged with the robbery at Gadshill should be "had up" before Lord Chief Justice Gascoigne, and that he should take notice of any of them who, having disobeyed a summons to appear before him, happened to come casually into his presence.

His Lordship is here attended by the tip-staff (or orderly), who, down to the present day, follows the Chief Justice, like his shadow, wherever he officially appears. On this occasion the Chief Justice meeting Sir John, naturally taxes him with having refused to obey [84] the summons served upon him to attend at his Lordship’s chambers, that he might answer the information laid against him; and Sir John tries to excuse himself by saying that he was then advised by his "counsel learned in the laws," that, as he was marching to Shrewsbury by the king’s orders, he was not bound to come.

Again, it is objected that a Chief Justice could not be supposed, by any person acquainted with his station and functions, to use such vulgar language as that put into the mouth of Sir William Gascoigne when Falstaff will not listen to him, and that this rather smacks of the butcher’s shop in which it is alleged that young Shakespeare employed himself in killing calves.

Ch. Just. To punish yon by the heels would amend the attention of your ears; and I care not if I do become your physician.

But to "lay by the heels" was the technical expression for committing to prison, and I could produce from the Reports various instances of its being so used by distinguished [85] judges from the bench. I will content myself with one. A petition being heard in the Court of Chancery, before Lord Chancellor Jeffreys, against a great City attorney who had given him many briefs at the bar, an affidavit was read, swearing that when the attorney was threatened with being brought before my Lord Chancellor, he exclaimed—"My Lord Chancellor! I made him!" Lord Chancellor Jeffreys: "Then will I lay my MAKER by the heels." A warrant of commitment was instantly signed and sealed by the Lord Chancellor, and the poor attorney was sent off to the Fleet.

I must confess that I am rather mortified by the advantage given to the fat knight over my predecessor in this encounter of their wits. Sir John professes to treat the Chief Justice with profound reverence, interlarding his sentences plentifully with your Lordship—"God give your Lordship good time of day: I am glad to see your lordship abroad: I heard say your Lordship was sick: I hope your Lordship goes abroad by advice. Your Lordship, though not clean past your youth, [86] hath yet some smack of age in you, some, relish of the saltness of time; and I most humbly beseech your Lordship to have a reverend care of your health." Yet Falstaff’s object is to turn the Lord Chief Justice into ridicule, and I am sorry to say that he splendidly succeeds—insomuch that after the party accused of felony has vaingloriously asserted that he himself had done great service to the state, and that his name was terrible to the enemy, the Chief Justice, instead of committing him to Newgate to answer for the robbery at Gadshill, is contented with admonishing him to be honest, and dismisses him with a blessing;—upon which Sir John is emboldened to ask the Chief Justice for the loan of a thousand pounds. To lower the law still further, my Lord Chief Justice is made to break off the conversation, in which Falstaff’s wit is so sparkling, with a very bad pun.

Ch. Just. Not a penny, not a penny: you are impatient to bear crosses.* [87]

The same superiority is preserved in the subsequent scene (Act II, Sc. 1), where Falstaff being arrested on mesne process for debt at the suit of Dame Quickly, he gains his discharge, with the consent of the Chief Justice, by saying to his Lordship—"My Lord, this is a poor mad soul; and she says, up and down the town, that her eldest son is like you:" and by insisting that although he owed the money, he was privileged from arrest for debt, "being upon hasty employment in the king’s affairs."

In Act V, Sc. I, Falstaff, having long made Justice Shallow his butt daring a visit to him in Gloucestershire, looks forward with great delight to the fun of recapitulating at the Boar’s Head, East Cheap, Shallow’s absurdities; and, meaning to intimate that this would afford him Opportunities of amusing [88] the Prince of Wales for a twelvemonth, he says:

I will devise matter enough out of this Shallow to keep Prince Henry in continual laughter the wearing out of six fashions (which is four terms, or two actions), and he shall laugh without intervallums.

Dr. Johnson thus annotates on the "two actions: "There is something humorous in making a spendthrift compute time by the operation of an action for debt." The critic supposes, therefore, that in Shakespeare’s time final judgment was obtained in an action of debt in the second term after the writ commencing it was sued out; and as there are four terms in the legal year—Michaelmas Term, Hilary Term, Easter Term, and Trinity Term—this is a legal circumlocution for a twelvemonth. It would seem that the author who dealt in such phraseology must have been early initiated in the mysteries of terms and actions.

Shakespeare has likewise been blamed for an extravagant perversion of law in the promises [89] and threats which Falstaff throws out on hearing that henry IV. was dead, and that Prince Hal reigned in his stead.

Fal. Master Robert Shallow, choose what office thou wilt in the land, ‘tis thine.—Pistol, I will double charge thee with dignities. * * * Master Shallow, my Lord Shallow, be what thou wilt, I am Fortune’s steward. * * * Come, Pistol, utter more to me; and withal devise something to do thyself good.—Boot, boot, master Shallow: I know the young King is sick for me. Let us take any man’s horses; the laws of England are at my commandment. Happy are they which have been my friends, and woe unto my Lord Chief Justice!—Act V, Sc. 4.

But Falstaff may not unreasonably be supposed to have believed that he could do all this, even if he were strictly kept to the literal meaning of his words. In the natural and usual course of things he was to become (as it was then called) "favourite" (or, as we call it, Prime Minister) to the new king, and to have all the power and patronage of the crown in his hands. Then, why might not Ancient Pistol, who had seen service, have been made War Minister? And if Justice Shallow had been pitchforked into the [90] House of Peers, he might have turned out a distinguished Law Lord.—By taking "any man’s horses" was not meant stealing them, but pressing them for the king’s service, or appropriating them at a nominal price, which the law would then have justified under the king’s prerogative of pre-emption. Sir W. Gascoigne was continued as Lord Chief Justice in the new reign; but, according to law and custom, he was removable, and he no doubt expected to be removed, from his office.

Therefore, if Lord Eldon could be supposed to have written the play, I do not see how he would be chargeable with having forgotten any of his law while writing it.

It is remarkable that while Falstaff and his companions, in Act V, Sc. 5, are standing in Palace Yard to see the new king returning from his coronation in Westminster Abbey, Pistol is made to utter an expression used, when the record was in Latin, by special pleaders in introducing a special traverse or negation of a positive material allegation of [91] the opposite side, and so framing an issue of fact for the determination of the jury—absque hoc, "without this that"—then repeating the allegation to be negatived. But there is often much difficulty in explaining or accounting for the phraseology of Ancient Pistol, who appears "to have been at a great feast of languages and stolen the scraps;"—so that if, when "double charged with dignities," he had been called upon to speak in debate as a leading member of the government, his appointment might have been carped at.

King Henry VI, Part II

In the speeches of Jack Cade and his co-adjutors in this play we find a familiarity with the law and its proceedings which strongly indicates that the author must have had some professional practice or education [92] as a lawyer. The second scene in Act IV. may be taken as an example.

Dick. The first thing we do, let’s kill all the lawyers.

Cade. Nay, that I mean to do. Is not this a lamentable thing, that the skin of an innocent lamb should be made parchment?—that parchment, being scribbled o’er, should undo a man? Some say the bee stings; but I say ‘tis the bee’s wax, for I did but seal once to a thing, and I was never mine own man since.

The Clerk of Chatham is then brought in, who could "make obligations and write court hand," and who, instead of "making his mark like an honest plain-dealing man," had been "so well brought up that he could write his name." Therefore he was sentenced to be hanged with his pen and ink-horn about his neck.

Surely Shakespeare must have been employed to write deeds on parchment in court hand, and to apply the wax to them in the form of seals: one does not understand how he should, on any other theory of his bringing up, have been acquainted with these details. [93]

Again, the indictment on which Lord Say was arraigned, in Act IV, Sc. 7, seems drawn by no inexperienced hand:

Thou hast most traitorously corrupted the youth of the realm m erecting a grammar-school: and whereas, before, our forefathers had no other books but the score and the tally, thou hast caused printing to be used; and contrary to the King, his crown and dignity, thou hast built a paper-mill. It will be proved to thy face that thou hast men about thee that usually talk of a noun and a verb, and such abominable words as no Christian ear can endure to hear.† Thou hast appointed justices of peace, to call poor men before them about matters they were not able to answer. Moreover thou hast put them in prison; and because they could not read, thou hast hanged them, when indeed only for that cause they have been most worthy to live.

How acquired I know not, but it is quite certain that the drawer of this indictment must have had some acquaintance with ‘The Crown Circuit Companion,’ and must have had a full and accurate knowledge of that rather obscure and intricate subject—"Felony and Benefit of Clergy." [94]

Cade’s proclamation, which follows, deals with still more recondite heads of jurisprudence. Announcing his policy when he should mount the throne, he says:

The proudest peer in the realm shall not wear a head on his shoulders unless he pay me tribute: there shall not a maid be married but she shall pay me her maidenhead ere they have it. Men shall hold of me in capite; and we charge and command that their wives be as free as heart can wish, or tongue can tell.

He thus declares a great forthcoming change in the tenure of land and in the liability to taxation: he is to have a poll-tax like that which had raised the rebellion; but, instead of coming down to the daughters of blacksmiths who had reached the age of fifteen, it was to be confined to the nobility. Then he is to legislate on the mercheta mulierum. According to Blackstone and other high authorities this never had been known in England; although, till the reign of Malcolm III., it certainly appears to have been established in Scotland; but Cade intimates his determination to adopt it—with this alteration, that instead of conferring the [95] privilege on every lord of a manor, to be exercised within the manor, he is to assume it exclusively for himself all over the realm, as belonging to his prerogative royal.

He proceeds to announce his intention to abolish tenure in free soccage, and that all men should hold of him in capite, concluding with a licentious jest, that although his subjects should no longer hold in free soccage, "their wives should be as free as heart can wish, or tongue can tell." Strange to say, this phrase, or one almost identically the same, "as free as tongue can speak or heart can think," is feudal, and was known to the ancient law of England. In the tenth year of King Henry VII., that very distinguished judge, Lord Hussey, who was Chief Justice of England during four reigns, in a considered judgment delivered the opinion of the whole Court of King’s Bench as to the construction to be put upon the words, "as free as tongue can speak or heart can think." See YEAR BOOK, Hil. Term, 10 Hen. VII., fol. 13, pl. 6. [96]

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