Troilus and Cressida

In this play the author shows his insatiable desire to illustrate his descriptions of kissing by his recollection of the forms used in executing deeds. When Pandarus (Act III, Sc. 2) has brought Troilus and Cressida together in the Orchard to gratify their warm inclinations, he advises Troilus to give Cressida "a kiss in fee-farm," which Malone explains to be "a kiss of a duration that has no bounds—a fee-farm being a grant of lands in fee, that is for ever, reserving a rent certain."

The advice of Pandarus to the lovers being taken, he exclaims:

What! billing again? Here’s—In witness the parties interchangeably —

the exact form of the testatum clause in an indenture—"In witness whereof the parties interchangeably have hereto set their hands and seals."

To avoid a return to this figure of speech [97] I may here mention other instances in which Shakespeare introduces it. In Measure for Measure, Act IV, Sc. l

and in his poem of Venus and Adonis:

King Lear

In Act I, Sc. 4 the Fool makes a lengthy rhyming speech, containing a great many trite but useful moral maxims, such as:

which the testy old fling found rather flat and tiresome.

Fool. Then, ‘tis like the breath of an unfeed lawyer:
you gave me nothing for it. [98]

This seems to show that Shakespeare had frequently been present at trials in courts of justice, and now speaks from his own recollection. There is no trace of such a proverbial saying as "like the breath of an unfeed lawyer"—while all the world knows the proverb, "Whosoever is his own counsel has a fool for his client."

How unfeed lawyers may have comported themselves in Shakespeare’s time I know not; but I am bound to say, in vindication of "my order," that in my time there has been no ground for the Fool’s sarcasm upon the bar. The two occasions when "the breath of an unfeed lawyer" attracts notice in this generation are when he pleads for a party suing in formâ pauperis, or when he defends a person prosecuted by the crown for high treason. It is contrary to etiquette to take a fee in the one case as well as in the other; and on all such occasions counsel, from a regard to their own credit, as well as from conscientious motives, uniformly exert themselves with extraordinary zeal, and put forth all their learning and eloquence. [99]

I confess that there is some foundation for the saying that "a lawyer’s opinion which costs nothing is worth nothing;" but this can only apply to opinions given off-hand, in the course of common conversation—where there is no time for deliberation, where there is a desire to say what will be agreeable, and where no responsibility is incurred.

In Act II, Sc. 1, there is a remarkable example of Shakespeare’s use of technical legal phraseology. Edmund, the wicked illegitimate son of the Earl of Gloster, having succeeded in deluding his father into the belief that Edgar, the legitimate son, had attempted to commit parricide, and had been prevented from accomplishing the crime by Edmund’s tender solicitude for the Earl’s safety, the Earl is thus made to express a determination that he would disinherit Edgar (who was supposed to have deaf from justice), and that he would leave all his possessions to Edmund: [100]

In forensic discussions respecting legitimacy, the question is put, whether the individual whose status is to be determined is "capable," i.e. capable of inheriting; but it is only a lawyer who would express the idea of legitimising a natural son by simply saying:

Again, in Act III, Sc. 5, we find Edmund trying to incense the Duke of Cornwall against his father for having taken part with Lear [101] when so cruelly treated by Goneril and Regan. The two daughters had become the reigning sovereigns, to whom Edmund professed to owe allegiance. Cornwall having created Edmund Earl of Gloster says to him:

Seek out where thy father is, that he may ready for our apprehension.

On which Edmund observes aside:

If I find him comforting the King, it will stuff suspicion more fully.

Upon this Dr. Johnson has the following note: "He uses the word [comforting] in the juridical sense, for supporting, helping."

The indictment against an accessory after the fact, for treason, charges that the accessory ‘‘comforted" the principal traitor after knowledge of the treason.

In Act III, Sc. 6, the imaginary trial of the two unnatural daughters is conducted in a manner showing a perfect familiarity with criminal procedure. [102]

Lear places the two Judges on the bench, viz., Mad Tom and the Fool. He properly addresses the former as "the robed man of justice," but, although both were "of the commission," I do not quite understand why the latter is called his "yokefellow of equity," unless this might be supposed to be a special commission, like that which sat on Mary, Queen of Scots, including Lord Chancellor Audley.

Lear causes Goneril to be arraigned first, and then proceeds as a witness to give evidence against her, to prove an overt act of high treason:

I here take my oath before this honourable assembly, she kicked the poor king, her father.

But the trial could not be carried on with perfect regularity on account of Lear’s madness, and, without waiting for a verdict, he himself sentences Regan to be anatomized:

Then, let them anatomize Regan; see what breeds about her heart. [103]

Hamlet

In this tragedy various expressions and allusions crop out, showing the substratum of law in the author’s mind—e.g., the description of the disputed territory which was the cause of the war between Norway and Poland:

Earlier in the play (Act I, Sc. 1) Marcellus inquires what was the cause of the warlike preparations in Denmark:

Such confidence has there been in Shakespeare’s accuracy, that this passage has been [104] quoted, both by text writers and by Judges on the bench, as an authority upon the legality of the press-gang, and upon the debated question whether shipwrights, as well as common seamen, are liable to be pressed into the service of the royal navy.†

Hamlet, when mortally wounded in Act V, Sc. 2, represents that Death comes to him in the shape of a sheriff’s officer, as it were to take him into custody under a capias ad satisfaciendum:

The Grave-diggers’ scene, however, is the mine which produces the richest legal ore. The discussion as to whether Ophelia was entitled to Christian burial proves that Shakespeare had read and studied Plowden’s Report [105] of the celebrated case of Hales v. Petit, tried in the reign of Philip and Mary, and that he intended to ridicule the counsel who argued and the Judges who decided it.

On the accession of Mary Tudor, Sir James Hales, a puisne Judge of the Common Pleas, was prosecuted for being concerned in the plot which placed the Lady Jane Grey for a few days upon the throne; but, as he had previously expressed a strong opinion that the succession of the right heir ought not to be disturbed, he was pardoned and released from prison. Nevertheless, so frightened was he by the proceedings taken against him that he went out of his mind, and, after attempting suicide by a penknife, he drowned himself by walking into a river. Upon an inquisition before the Coroner, a verdict of felo de se was returned. Under this finding his body was to be buried in a cross-road, with a stake thrust through it, and all his goods were forfeited to the crown. It so happened that at the time of his death he was possessed of a lease for years of a large estate in the county of Kent, granted by the Archbishop of Canterbury [106] jointly to him and his wife, the Lady Margaret, who survived him. Upon the supposition that this lease was forfeited, the estate was given by the crown to one Cyriac Petit, who took possession of it—and Dame Margaret Hales, the widow, brought this action against him to recover it. The only question was whether the forfeiture could be considered as having taken place in the lifetime of Sir James Hales: for, if not, the plaintiff certainly took the estate by survivorship.

Her counsel, Serjeants Southcote and Puttrel, powerfully argued that, the offence of suicide being the killing of a man’s self, it could not be completed in his lifetime, for as long as he was alive he had not killed himself, and, the moment that he died, the estate vested in the plaintiff. "The felony of the husband shall not take away her title by survivorship, for in this manner of felony two things are to be considered—first, the cause of the death; secondly, the death-ensuing the cause; and these two make the felony, and without both of them the felony is not [107] consummate. And the cause of the death is the act done in the party’s lifetime, which makes the death to follow. And the act which brought on the death here was the throwing himself voluntarily into the water, for this was the cause of his death. And if a man kills himself by a wound which he gives himself with a knife, or if he hangs himself, as the wound or the hanging, which is the act done in the party’s lifetime, is the cause of his death, so is the throwing himself into the water here. Forasmuch as he cannot be attainted of his own death, because he is dead before there is any time to attaint him, the finding of his death by the Coroner is by necessity of law equivalent to an attainder in fact coming after his death. He cannot be felo de se til1 the death is fully consummate, and the death precedes the felony and the forfeiture."

Walsh, Serjeant, contra, argued that the felony was to be referred back to the act which caused the death. "The act consists of three parts: the first is the imagination, which is a reflection or meditation of the [108] mind, whether or not it is convenient for him to destroy himself, and what way it can be done; the second is the resolution, which is a determination of the mind to destroy himself; the third is the perfection, which is the execution of what the mind had resolved to do. And of all the parts, the doing of the act is the greatest in the judgment of our law, and it is in effect the whole. Then here the act done by Sir James Hales, which is evil, and the cause of his death, is the throwing himself into the water, and the death is but a sequel thereof."

Lord C. J. Dyer and the whole court gave judgment for the defendant, holding that although Sir James Hales could hardly be said to have killed himself in his lifetime, "the forfeiture shall have "relation to the act done by Sir James Hales in his lifetime, which was the cause of his death, viz., the throwing himself into the water." Said they, "Sir James Hales was dead, and how came he to his death? by drowning; and who drowned him ? Sir James Hales; and when did he drown him? in his lifetime. So that Sir [109] James Hales, being alive, caused Sir James Hales to die; and the act of the living man was the death of the dead man. He therefore committed felony in his lifetime, although there was no possibility of the forfeiture being found in his lifetime, for until his death there was no cause of forfeiture."

The argument of the gravediggers upon Ophelia’s case is almost in the words reported by Plowden:

1 Clo. Is she to be buried in Christian burial, that wilfully seeks her own salvation?

2 Clo. The crowner hath sate on her, and finds it Christian burial.

1 Clo. How can that be, unless she drowned herself in her own defence?

2 Clo. Why, ‘tis found so.

1 Clo. It must be se offendendo; it cannot be else. For here lies the point: if I drown myself wittingly, it argues an act; and an act hath three branches; it is to act, to do, and to perform. Argal she drowned herself wittingly. * * * Here lies the water; good: here stands the man; good. If the man go to this water and drown himself, it is, will he, nill he, he goes; mark you that: but if the water come to him and drown him, he drowns not himself. Argal he that is not guilty of his own death shortens not his own life. [110]

2 Clo. But is this law?

1 Clo. Ay’ marry is’t, crowner’s quest law.

Hamlet’s own speech, on taking in his hand what he supposed might be the skull of a lawyer, abounds with lawyer-like thoughts and words:

Where be his quiddits now, his quillets, his cases, his tenures, and his tricks? Why does he suffer this rude knave now to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Humph! This fellow might be in’s time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries: is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?

These terms of art are all used seemingly with a full knowledge of their import; and it would puzzle some practicing barristers with whom I am acquainted to go over the whole seriatim, and to define each of them satisfactorily. [111]

__________

* One would suppose that photography, by which this mode of catching criminals is now practised, had been invented in the reign of King Lear. back

† See Barrington on the Ancient Statutes, p. 300. back