Part Two - Introduction to The Law in Shakespeare

It thus appears that Shakespeare amplified the statement of the compact with Fortinbras; changed Polonius' term, "a forced graunt," to a more formal and elaborate legal expression; inserted the word "canon" to express a divine law; forced the word "tender" to an ampler use; called lover's oaths "brokers ;" caught the idem sonans of the word "borne" and changed it to "bourne" as the boundary of that undiscovered country; took the suggestion of the word "demanded" and asked what "replication" shall be made; added the request for a "sealed acquitance," and the demand why "capital" crimes had not been "proceeded against;" rewrote the dialogue between the clowns solely to enlarge it and make it more accurate in its legal meaning, and more relevant to the case in Plowden; reconstructed Hamlet's meditations on the lawyer's skull; corrected the inaccurate suggestion of an indictment for an action of battery; struck out the words "leases and free-holde and tenements;" added to the enumeration of the devices of money-lenders the words "buyer of land," "statutes," "recognizances," "fines," "recoveries,"-- all with the greatest pains-taking to be full and accurate; added to the purport of the king's letter to England and, where Hamlet, in the quarto, merely resists Horatio's attempt to drink the cup by expressing a desire that he should live to tell the story, changed this to an injunction to his friend to live

to report me and my cause aright
To the unsatisfied.

By an unlearned writer such a task of correction and amplification would never have been attempted. By one who was learned in the subject, and who either delighted in it or had the tendency of practice in its employment, it was inevitable that this should be done.

In the scene between Hamlet and his father's ghost the effect of the "juice of cursed hebenon" is stated with much detail. This passage was also retouched, but no material change was made. No symptom or effect was added. The legal statements were changed throughout. But the former needed correction, for it is very inaccurate. The introduction of poison into the circulation through the porches of the ear, so that the effect will be an instantaneous incrustation of the skin, was a conception of Shakespeare and has no foundation in medical science.

It is especially to be noticed that this legal learning is accurately sustained in many passages with cumulative and progressive application. The word employed becomes suggestive of other words, or of a legal principle, and these are at once used so fully that their powers are exhausted. In one scene the lover, wishing a kiss, prays for a grant of pasture on his mistress' lips. This suggests the law of common of pasture, and she replies that her lips are no common. This suggests the distinction between tenancy in common and tenancy in severally, the lips being several, and she adds, "though several they be." Miranda and Ferdinand simply betroth themselves; sanctimonious ceremonies are intended to follow. In the case of Florizel and Perdita the contract before witnesses is proposed, but the disguised father interrupts the proceedings and prevents a marriage. In the case of Mariana there is a contract of marriage, followed by consummation in the legal and physical sense, and it is not even suggested that this is not a valid marriage. In describing the wager of battle everything is correctly and orderly set forth. The appeal is made; gloves are thrown down and taken up; the lists are set upon the green; proclamation is made; the judges take their places; the king stops the combat by throwing down his warder. The regularity of the process in Shylock v. Antonio is fully pointed out elsewhere. The trial of Queen Catherine opens with a proposition to read the commissions of the judges, citation is made, her appearance is demanded, and she refuses it, because to appear will be a submission to the jurisdiction of the court. This is precisely the ground upon which Mary Stuart stood at her trial, and so insurmountable did her prosecutors deem it to be, that she was cajoled into doing that which Catherine refused. The barbarous penalty of Shylock's bond is a reminiscence of the Twelve Tables, by which the creditors of a delinquent debtor were allowed to cut him into pieces. The Italian novel upon which the play is founded attributes the same penalty to the bond. So does the old ballad of Gernutus. It has been contended that the ballad is the offspring of the play, but incorrectly, because the former contains nothing concerning any woman as a judge,-- a circumstance too effective to have been omitted by any ballad maker who drew his inspiration from the play. When Hamlet surmises that the skull may be that of a lawyer, a lender of money, he enumerates at once the methods by which loans were secured. The words "factor" and "broker" are used with perfect understanding of the technical differences in their meaning. Tamora claims her Roman citizenship through her incorporation into a Roman family under the principle of adoption by marriage. Lear partitions his kingdom, and delivers it by livery of seizin. He entails the crown by apt words. Hermione is accused of adultery, and therefore of treason, according to the statute of Edward III. The validity of the acts of a king de facto and the duty of obedience to him are stated with the most precise understanding of the distinction between officers de facto and those de jure. Helena is a feudal ward. Cade makes a bestial pun, suggested by tenancy in capite, and by an infernal privilege of stupration, which is one of the recondite curiosities of the law. Dromio asserts that there is no time for a bald man to recover his hair. This having been written, the law phrase suggested itself, and he was asked whether he might not do it by fine and recovery, and this suggested the efficiency of that proceeding to bar heirs; and this started the conceit that thus the lost hair of another man would be recovered. A 'quest of thoughts all tenants to the heart is impaneled to decide the question of title to the visage of the beloved one between the heart and the eye, where the defendant denies the plea, and the verdict is a moiety to each. The remembrance of things past is summoned up to the sessions of sweet, silent thought.

These illustrations have been given as they occur to the memory from hundreds of passages to enforce the argument of the probative force of accumulated circumstances from diverse sources, when there can be no doubt of the circumstances themselves. There is no question here of fabricated evidence. While the simulation of evidence by perverting or inventing circumstances is a device of all fabricators from the time of the exhibition of Joseph's coat to Jacob, the noting the mole on Imogen's snow-pure breast, the smearing by Lady Macbeth of the grooms' faces with blood, and the use of the handkerchief by Iago, are done with legal craft, and form Shakespeare's judgement upon what is called circumstantial evidence, which after all the judicial cant upon the subject, such as the assertion that circumstances cannot lie, can be made the most illusory of all testimony; for while circumstances cannot lie, they can be feigned, invented, distorted, half-stated, misapplied, mistaken, or lied about with most infernal skill. It is upon circumstantial evidence so misunderstood that the claims of all impostors have been maintained from the falsi Neronis ludibrio which moved the hosts of Parthia to the pretensions of the claimant in the Tichborne case. The least mistake makes all the difference in the world. Suppose, for instance, that in the perspective of ages events should be so foreshortened that the years which cover Shakespeare's life-time and that of Milton should blend, it might be argued from the extracts from Comus, which are hereinafter set out, from an assumption that Shakespeare was an obscure and illiterate man, and from Milton's commanding intellectual force and erudition, that the latter wrote the plays in that heyday of his youth when, according to his own statement, he delighted in the sinuosi pompa theatri; or it might be maintained with nearly equal force that Shakespeare wrote Areopagitica or Paradise Lost in his later years, after he had forsaken the vanities of his youth, had become devout, and had thrown all the forces of his mighty intellect into the polemics incident to a great political and religious revolution. These considerations are also relevant to what it is intended to submit relative to the theory that Francis Bacon was Shakespeare.

We can apply here the tests which decide our ordinary actions, and which in courts are found sufficient to adjudicate the most momentous questions. In the daily conduct of our lives we act upon the results of a calculation of probabilities. We frequently make it for ourselves, but as to our habitual actions it was made for us, perhaps thousands of years ago, and its results constitute what we call experience. In any such case, it is found from observation that a certain series of events is followed by certain consequences, so that an aggregate of circumstances being given we assume that but one result can follow. So unvarying are such results that, for all practical purposes, they are certainties. These experiences form the path in which we traverse life. They guide our business conduct. They map the course of storms upon the sea. They know where planets will shine, what eclipses will occur, what comets will return, for all time to come. It is thus that order is introduced into what is apparently inextricable confusion, and relationship is established between subjects separated by vast intervals of time and space. This is the great triumph of comparative philology which demonstrated the affinity of languages, traced diverse peoples to a common origin, and went far to mark the stages of their progress from the table lands of Asia through all the centuries from the morning of time. From this the unity of many nations was deduced, and a substantial identity of their religious conceptions, primal laws and domestic habits became established facts. All this is the result of what Whewell calls the "consilience of inductions."