IV.
AN ENGLISH QUEEN’S COUNSEL’S
REMARKABLE OPINION.
BUT most wonderful pronouncement
of all, Mr. Edward James Castle, Q. C., in 1897 prints a book—Shakespeare,
Bacon, Jonson, and Greene—in which he completely falls under the
umbra of Lord Campbell as to the value and significance of these "legalisms"
in the Plays. Mr. Castle divides Shakespeare’s dramas into legal
and non-legal plays, discovering, or professing to discover,
vast legal lore in the former and ignorance of the law in the latter.
In his Introduction he states ‘that his studies upon the subject were
not made with a view to support a theory. But it would appear that,
when Mr. Castle came to write his book, his "discovery" (to
use his own word) warped his judgment.
For even assuming that his theory is correct,
that some plays show knowledge and others ignorance of law; Mr. Castle’s
conclusion that the former must have been or even probably were the
joint production of Shakespeare and Bacon, or some other lawyer, who
worked together as Beaumont and Fletcher did, is certainly a non
sequitur. Writers of all times, when treating of technical subjects,
have been wont to consult and take the advice [28]
of men skilled in those subjects; the novelist who introduces medical
or legal subjects consults with a physician or lawyer—sometimes he correctly
uses the knowledge he thus acquires, and sometimes he does not. Or,
without consulting a specialist, he may have some familiarity with technical
terms, and may use them with accuracy or otherwise.
Mr. Castle’s efforts to show real legal
knowledge in the plays are labored in the extreme. The first instance
he gives of legalisms fairly illustrates them all, and my criticism
upon it is fairly applicable to them all. Shakespeare uses the word
"color" as meaning it "apparent, not real," which
is its signification when used as a law term. Mr. Castle devotes five
pages of his work to detailing the various technical refinements drawn
by the old lawyers in regard to "giving color" in pleadings,
and assumes that, because "color" is used with its legal meaning,
it must have been a lawyer who so used it, and that he knew all these
technical refinements—an unwarranted presumption even in the case of
a professional lawyer. Color, in its application to pleading, was, I
believe, abolished in England by the procedure act of 1852, and this
may be some excuse for Mr. Castle’s admitted ignorance (p. 20) on the
subject, but it is still in force in all states where the common-law
procedure is in vogue, and the average lawyer, who knows little or nothing
of the refinements in its use mentioned by Mr. Castle, refers to it
familiarly in his everyday practice. But the use of the word color was
not confined to the science of pleading; it was and still is used in
other applications [29] with practically
the same meaning: as "color of title," a title prima facie
good, but for some reason, not apparent on its face, not good in
fact; and "color of office," as where an act is done by an
officer under pretense that it is within his authority, when in truth
it is not, it is said to be done under color of office, colore officii.
The use of the word color in its legal sense of "apparent,
not real" cannot certainly indicate profound knowledge of law,
and it is simply absurd to assume that the mere use of
a technical legal term by Shakespeare indicates that he had a knowledge
of all the hair-splitting logic which the ancient doctors of the common
law used in applying legal doctrines and, terms to particular
cases. The "rule in Shelley’s case" any lawyer can define,
but of its application in particular cases every lawyer is doubtful;
the average layman is familiar with the phrase, but, according to Mr.
Castle’s logic, if a lay writer uses it this fact indicates that he
is a profound lawyer and has a knowledge of all the vast learning and
ingenious logic used in the application of the rule and embodied in,
many volumes of reports and text-books.
Shakespeare, in common
with his contemporaries and in common with observant men for many centuries
previous to his time, knew that all terrestrial bodies are attracted
toward the center of the earth, and he several times refers to this
fact; we must therefore believe, if we follow Mr. Castle’s mental processes,
that Shakespeare was familiar with the law of gravitation and all its
applications; that he knew Newton’s and Kepler’s laws and all modern
[30] astronomy. Old Capulet calls Juliet’s
fine distinction between being proud of the County Paris and being thankful
for him—"chop logic."* I know of no other
term so apt and appropriate to apply to Mr. Castle’s book.
But if he was unfortunate in his efforts
to discover legal knowledge in the "legal" plays, he becomes
positively puerile when he undertakes to prove lack of such knowledge
in the "non-legal" plays. After a careful search through the
many pages devoted to this part of his work I have failed to discover
a single instance given by him of any real blunder in
the use of legal terms. The following quotations fairly illustrate his
arguments here:
How utterly inane and childish such criticism
is! And yet Mr. Castle gives no better illustrations than these to prove
Shakespeare’s ignorance of law in what he calls the "non-legal"
plays.
The reader will notice that most of the
instances hereinafter given of Shakespeare’s mistakes in the use of
legal terms are taken from Mr. Castle’s "legal plays," to
wit, Hamlet, Richard III, Henry VIII, and 3 Henry VI,
etc. [32]
________
* Romeo and Juliet, III. v.
150. The late Mr. S. S. Cox once referred to the speech of a fellow-congressman
as "chopstick logic," which is even more appropriate. back