Part One - Introduction to The Law in Shakespeare

SHAKESPEARE'S persistent and correct use of law terms was long ago noticed and caused the conjecture that he must have studied in an attorney's office. What is the truth in this respect will probably never be certainly known; but that he was more addicted to the employment of legal nomenclature than any English writer (excepting, of course, the jurists) is incontestable.

The work of winter evenings, commenced long ago, as an incident to habitual study of the works of him "who converted the elements which awaited at his command into entertainments," is submitted with little speculation upon questions concerning which there have been many words and few demonstrations. It is not pretended that every legal phrase which he used is here presented. The aim has been not to extend the task beyond the necessity of proof into a wearisome repetition of expressions which often recur in scores. To the lawyer many of the notes will be needless, though some of them will be found helpful. I have not hesitated to present the definitions of the commonest legal terms. To those unversed in law lore, they will present at a glance the argument intrinsic in the text. Some of the quotations, taken alone, are doubtless of trifling probative force. They are given because, in cumulative testimony, each independent fact is a multiplier.

We seem to have here something more than a sciolist's temerity of indulgence in the terms of an unfamiliar art. No legal solecisms will be found. The abstrusest elements of the common law are impressed into a disciplined service with every evidence of the right and knowledge of commanding. Over and over again, where such knowledge is unexampled in writers unlearned in the law, Shakespeare appears in perfect possession of it. In the law of real property, its rules of tenure and descents, its entails, its fines and recoveries, and their vouchers and double vouchers; in the procedure of the courts, the methods of bringing suits and of arrests, the nature of actions, the rules of pleading, the law of escapes, and of contempt of court; in the principles of evidence, both technical and philosophical; in the distinction between the temporal and the spiritual tribunals; in the law of attainder and forfeiture; in the requisites of a valid marriage; in the presumption of legitimacy; in the learning of the law of prerogative; in the inalienable character of the crown,-- this mastership appears with surprising authority.

It is not necessary in accounting for this to assault truth with a paradox, or to put a mask upon the face of the first of men. The law books of that time were few. Shakespeare's French is nearly as bad as the law French in which many of them were written; and it is not to be forgotten that to learn must have been easy to this man, whose mental endowments were so universal that the best intellects of after times have vainly essayed to admeasure them.

Coleridge has remarked "that a young author's first work almost always bespeaks his recent pursuits." He might have said with equal correctness that any author's works can never entirely hide his former pursuits. These may be betrayed by the style, or by prejudices, affections, antipathies. or affectations. Gibbon thought that his experience as an officer in the Hampshire militia was of assistance to him in describing that vast mutation in history whereby the Roman world, by a process almost physical in appearance, shifted from temperate simplicity, grandeur, civilization, and solidity to tropical luxury, effeminacy, barbarism, and quick decay. Were every detail of Falconer's and Somerville's lives unknown, it would be certain from their works that the one was a sailor and the other a sportsman. Sir Walter Scott had been called to the bar and his works attest his legal proficiency. We see Fielding's experience as a magistrate in the examination of Partridge, in the conspiracy between Lady Booby and Lawyer Scout against Fanny, and in that masterpiece of savage irony, the life of the late Mr. Jonathan Wild the Great. We know from the details of mercantile routine in Robinson Crusoe and Colonel Jack that Defoe must have been a merchant. That Thackeray had been an artist is very apparent in his works. Donne, (1572-1631,) who had been a student at Lincoln's Inn, satirized a barrister's wooing in law phrase:

----------------------------"he throws,
Like nets or lime twigs, wheresoe'r he goes,
His title of barrister on every wench,
And woos in language of the pleas and bench.
A motion, lady! Speak, Coscus. I have been
In love e'er since tricesimo the queen.
Continual claims I've made, injunctions got
To stay my rival's suit, that he should not
Proceed; spare me, in Hilary term I went;
You said if I returned next 'size in Lent,
I should be in remitter of your grace.
In th' interim my letters should take place
Of affidavits."

The argument on the present question rests mainly, of course, upon the general and constant employment by Shakespeare of the terms of a science which, in his time, was crabbed and harsh, and which has at any time few points of contact with the graces of literature.

There is another special argument of great force, in presenting which my inadequate resources for comparison restrict me to the use of Hamlet, though I have no doubt that corroborative results will be yielded to any one who may make a more extended investigation.

Hamlet was published in quarto in 1603. Compared with the final version which appeared in the folio of 1623, it is a magnificent imperfection, but invaluable because it shows how the hand of the master wrought upon his work. From the one to the other we see Shakespeare's mind in operation. Its creative processes are disclosed. Its industry is demonstrated. Here are the blotted lines Jonson wished for. We see the growth of immortal blossoms from barren common-places. It is as if some sculptor, with an enchanter's power, had wrought upon an unadorned Milan cathedral through one night, so that the morning showed thousands of carvings and statues where the day before were only walls of unadorned simplicity.

If Shakespeare's use of legal learning were not that of a full man, with pride in his skill, we should not expect to see, in the changes by which he brought the play to perfection, any additions or elaborations in that respect. But that they do appear most remarkably, the following, in which the text of the quarto is given, together with that of the finished version, will show:

Who by a seale compact, well ratified by law
And heraldrie? did forfeit with his life all those
His lands which he stood seazed of to the conqueror,
Against the which a moiety competent
Was gaged by our king (Quarto.)

To this Shakespeare added:

----------------which had returned
To the inheritance of Fortinbras
Had he been vanquisher; as by the same covenant
And carriage of the article designed,
His fell to Hamlet. (Standard Version.)

He hath, my lord, wrung from me a forced graunt. (Quarto.)

He hath, my lord, wrung from me my slow leave,
By laborsome petition, and at last
Upon his will I sealed my hard consent. (Standard Version.)

Or that the Everlasting had not fix'd
His canon 'gainst self-slaughter! (Not in Quarto.)

Oph. My lord, he hath made many tenders of his love to me.
Cor. Tenders. I, I, tenders you may call them.
Oph. And withall such earnest vowes.
Cor. Springes to catch woodcocks.
What, do I not know when the blood cloth burne
How prodigall the tongue lends the heart vowes.
In brief, be more scanter of your maiden presence,
Or tendering thus you'l tender mee a foole. (Quarto.)

Oph. He hath, my lord, of late made many tenders
Of his affection to me.
Pol. Affection! Pooh! You speak like a green girl
Unsifted in such perilous circumstance.
Do you believe his tenders, as you call them?
Oph. I do not know, my lord, what I should think.
Pol. Marry, I'll teach you: think yourself a baby:
That you have ta'en these tenders for true pay
Which are not sterling. Tender yourself more dearly:
Or--not to crack the wind of the poor phrase,
Running it thus--you'll tender me a fool, (Standard Version.)

"Do not believe his vows, for they are brokers,
Not of that dye which their investments show,
But mere implorators of unholy suits,
Breathing like sanctified and pious bawds,
The better to beguile." (Not in Quarto.)

I did repel his letters, deny his gifts,
As you did charge me. (Quarto.)

I did repel his letters, and denied
His access to me. (Standard Version.)

For in that dreame of death, when we awake,
And borne before our everlasting judge,
From whence no passenger euer returned,
The undiscovered country, at whose sight
The happy smile and the accursed damn'd. (Quarto.)

The undiscoverod country from whose bourne
No traveller returns. (Standard Version.)

Yet you cannot
Play upon me, besides to be demanded by a spunge. (Quarto. )

Besides, to be demanded of a spunge: what replication
Should be made by the son of a king? (Standard Version.)

King. Now must your conscience my acquittance seal.
* * * * *
Laer. It will appear: but tell me
Why you proceeded not against these feats
So crimeful and so capital in nature. (Not in Quarto.)

First Clo. I say no, she ought not to be buried
In Christian burial.
Sec. Clo. Why, sir?
First Clo. Marry, because shee's drown'd.
Sec. Clo. But she did not drowne her selfe.
First Clo. No, that's certaine, the water drown'd her.
Sec. Clo. Yea, but it was against her will.
First Clo. No, I deny that; for looke you, sir; I stand here;
If the water come to me I drowne not my selfe;
But if I goe to the water, and am then drown'd,
Ergo, I am guiltie of my owne death.
Y'are gone; goe, y'are gone, sir.
Sec. Clo. I; but see, she hath Christian burial
Because she is a great woman. (Quarto.)

First Clo. Is she to be buried in Christian burial that wilfully seeks her own salvation?
Sec. Clo. I tell thee she is: and therefore make her grave straight: the crowner hath sat on her, and finds it Christian burial.
First Clo. How can that be, unless she drowned herself in her own defence?
Sec. Clo. Why, 'tis found so.
First 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, to perform: argal, she drowned herself wittingly.
Sec. Clo. Nay, but hear you, goodman delver,--
First Clo. Give me leave. 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.
Sec. Clo. But is this law?
First Clo. Ay, marry, is't; crowner's quest law.
Sec Clo. Will you ha' the truth on't? If this had not been a gentlewoman, she should have been buried out o' Christian burial. (Standard Version.)

Ham. Looke you, there's another, Horatio.
Why mai't not be the scull of some Lawyer?
Me thinkes he should indite that fellow
Of an action of Batterie, for knocking
Him about the pate with's shovel: now where is your
Quirkes and quillets now, your vouchers and
Double vouchers, your leases and free-holde
And tenements? Why that same box will scarce
Hold the conveiance of his land, and must
The honor lie there? O pittifull transformance!
I prithee tell me, Horatio,
Is parchment made of sheep-skinnes?
Hor. I, my lorde, and of calves-skinnes too.
Ham. I'faith they proove themselves sheepe and calves
That deale with them or put their trust in them. (Quarto.)

Ham. There's another: why may not that be the skull of a lawyer? Where be his quiddities 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? Hum! 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 him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures? The very conveyances of his lands will hardly lie in this box; and must the inheritor himself have no more, ha?
Hor. Not a jot more, my lord.
Ham. Is not parchment made of sheep-skins?
Hor. Ay, my lord, and of calf-skins too.
Ham. They are sheep and calves which seek out assurance in that. (Standard Version.)

Ham. An earnest conjuration from the king,
As England was his faithful tributary,
As love between them like the palm might flourish,
As peace should still ber wheaten garland wear
And stand a comma 'tween their amities,
And many such-like 'As'es of great charge,
That, on the view and knowing of these contents,
Without debasement further, more or less,
He should the bearers put to sudden death,
Not shriving-time allow'd.
Hor. How was this seal'd!
Ham. Why, even in that was heaven ordinant.
I had my father's signet in my purse,
Which was the model of that Danish seal;
Folded the writ up in form of the other,
Subscribed it, gave't the impression, placed it safely,
The changeling never known. (Not in Quarto.)

Hor. No, I am more an antike Roman
Than a Dane; here is some poison left.
Ham. Upon my love I charge thee let it goe.
O fie, Horatio, and if thou shoulds't die
What a scandale woulds't thou leave behind;
What tongue should tell the story of our deaths,
If not from thee. (Quarto.)

Ham. Had I but time--as this fell sergeant, Death,
Is strict in his arrest-- O, I could tell you--
But let it be. Horatio, I am dead;
Thou livest; report me and my cause aright
To the unsatisfied.
Hor. Never believe it;
I am more an antique Roman than a Dane:
Here is yet some liquor left.
Ham. As thou'rt a man
Give me the cup: let go; by heaven, I'll have't.
O good Horatio, what a wounded name,
Things standing thus unknown, shall live behind me!
If thou didst ever hold me in thy heart,
Absent thee from felicity awhile,
And in this harsh world draw thy breath in pain,
To tell my story. (Standard Version.)