V.
SOME OF SHAKESPEARE’S ERRORS IN
LEGAL TERMINOLOGY

FOR my part I see no profound knowledge of law displayed in the plays. It would indeed be strange, considering the, surroundings of Shakespeare’s birth and education, if he did not make frequent use of legal expressions. Could the universal genius, who apparently like his own creation, Posthumus Leonatus, had

have been brought up as it were within the four walls of a court house, with the litigants, jurors, and lawyers his daily companions, and have failed to absorb, aye, drink in as he did the air, digest and make his own, a large fund of the legal lore of his surroundings? On the contrary, for him not to have done so would be a matter of infinite surprise.

To me it seems that it ought to, be apparent to any lawyer, who is not an enthusiast, that Shakespeare’s knowledge of law was simply a knowledge of legal expressions, with a fairly correct idea of their application such as any bright man attending court frequently and in daily companionship with [33] lawyers could not fail to acquire; and that of the law itself he had no real knowledge, except such little as he could pick up in the manner indicated.

Though the frequent use of legal terms, with their proper technical meanings, has a cumulative effect, and tends strongly to prove a legal training; yet a very few errors in such use, if glaring and gross, would absolutely nullify that effect and proof. Without presuming to rival the learning and ingenuity, the patience and labor bestowed by Lord Campbell and Senator Davis, I have collected some instances of inaccuracy in the use of law-terms which I believe destroy the force of their reasoning.

Dignities and honors could not be demised—3 Comyn’s Dig. Tit. Dignity (E), 2 Bl. Com. 36, 37.

A very few days, or, at most, weeks, of practical training in a lawyer’s office would have sufficed to teach Shakespeare that this is an incorrect use of the word replication. The course of pleading is as follows: The plaintiff makes his demand on the defendant by a narratio or declaration; the defendant replies by a plea; and the plaintiff’s reply to this plea is called a replication. Certainly comment is here unnecessary. Apparently Shakespeare determined to make use of a legal expression even if he had to [34] do violence to it, to commit an assault on it, as it were, and lug it in by the ears. And the same may be said of some of the other instances hereafter given. Shakespeare’s was a learned and a pedantic age, and while he could not rival his more plodding contemporaries in their labored efforts to weigh down their works with classical allusions, none of them at all rivaled him in his knowledge of, and his reference to, that great world around him—all that he could see and hear. He knew the habits of birds and insects, the properties of herbs and flowers, and besides, soon had a grasp of all the knowledge of that brilliant gathering of playwrights, his contemporaries and associates, among whom were lawyers, physicians, divines, and nearly all of whom were classical scholars. Like Leonatus he took his "learnings" as we do air; he breathed it in; he absorbed it; he did not get it out of books. This is what Milton means when he contrasts Jonson’s with Shakespeare’s learning:

But legal expressions are highly technical, and when Shakespeare attended those feasts of the law in courts and in gatherings of attorneys, and carried away scraps, it is not at all surprising that he should occasionally commit an error when he used them so frequently. And when, in a comparatively few instances, his applications of law terms are so highly technical and so correctly given as to suggest [35] a lawyer’s touch, can we not readily believe that here he took advice of some lawyer friend? In the very nature of things he must have had many such friends.

To compound (though cited as a legalism by Senator Davis) is in all these cases used in the general sense of to settle or determine; but, in a legal sense, it is to settle in a particular manner, as where a creditor agrees to receive part of his debt in satisfaction of the whole; or, in criminal law, where one receives a consideration to refrain from prosecuting a wrongdoer, as when one whose goods have been stolen agrees not to prosecute the thief if the goods are returned, which is called " compounding a felony," where the theft amounted to a felony. Today, in general literature, the word is used in pretty much the same sense in which Shakespeare uses it—perhaps this is due to the force of his great example. [36]

For if a king bid a man be a villain, he is bound by the indenture of his oath to be one. —Pericles, Act I. scene 3.

Here the oath of allegiance is referred to. The use of the word "indenture" is entirely out of place.

"‘An indenture’ was a writing containing a conveyance, bargain, or contract . . . between two or more parties, consisting of the same matter written twice or oftener on the same sheet with a space between, where, after execution, the parchment was cut in a serrated or indented line, and a part delivered to each of the parties." —Burrill’s Law Dictionary.

The word indenture has survived to modern times, though actual indenting or cutting is never done; but in Shakespeare’s time it seems actual indenting was necessary to constitute an "indenture " (5 Co., 21, Stile’s Case), and it was so in Maryland until 1794, when it was abolished by chapter 57 of the Acts of that year.

An oath never (and ex vi termini not an oath of allegiance, it being unilateral) had anything to do with an indenture or an indenture with an oath.

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

Moiety (L. Lat. mediatas) does not mean a third. A half; one of two equal parts. —Co.. Litt. 34 a, b.

It is to be noted, however, that some modern lawyers and text-writers use the word moiety as inaccurately as Shakespeare, as though it could mean a third, or any part.

To "challenge" is to object or except to those who are returned to act as jurors, either individually or collectively as a body. The judge was not subject to challenge.

Here "well ratified by" means "strictly in accordance with." As a legalism its use is out of place.

"Ratification is where a person adopts a contract or other transaction which is not binding on him because entered into by an unauthorized agent. Thus, if A enters into a contract on behalf of B, without having B’s authority to do so, B may either [38] repudiate or adopt the contract; if he adopts it he is said to ratify it, and it then takes effect as if it had been originally made by his authority." Rapalje & Lawrence’s Law Dic.

"Jointress, a woman who has an estate settled on her by her husband, to hold during her life if she survive him." —Co. Litt. 46.

Jointure was one of the means used for barring dower. It was an estate settled on the wife before marriage, and in lieu of dower; if made after marriage, upon the husband’s death the widow could either accept it or reject it and take her dower at common law (2 Bl. Comm. 137)

Queen Gertrude could have neither a dower nor a jointure in the kingdom of Denmark.

Boyet. So you grant pasture for me [offering to kiss her.]

Mar. Not so, gentle beast;
My lips no common are, though several they be.
         —Love’s Labour’s Lost, Act II scene 1.

Shakespeare doubtless knew that one cannot at the same time hold a thing in common and in severalty, and if so, he here sacrifices his knowledge for a mere play on words, which I fancy a professional pride, if he had had any legal training, would not have permitted him to do.

War. Why should you sigh, my lord?

King H. Not for myself, Lord Warwick, but my son,
Whom I unnaturally shall disinherit. [39]
But be it as it may: I here entail
The crown to thee, and to thine heirs forever;
Conditionally that thou here take an oath
To cease this civil war, and, whilst I live,
To honor me as thy king and sovereign;
And neither by treason, nor hostility,
To seek to put me down and reign thyself.
         —3 Henry V1, Act I. scene 1.

Senator Davis admits an inaccuracy here. I quote his language (p. 199): "This is an attempt to grant the crown, subject to a condition subsequent. The use of the word entail here seems to be inaccurate, for, though the use of the word heirs is necessary to create a fee, so the word ‘body’ or some other words of procreation are necessary to make it a fee tail. A gift, to a man and his heirs, male or female, is an estate in fee simple and not in fee tail" (2 Bl. Comm., 114).

The word "statutes" is here used to mean simply articles of agreement. It has no such meaning in law. A statute is an act of the legislature of a country. "Statutes-merchant" and "statutes staple" were the names of certain securities for debt in Shakespeare’s time, and perhaps this gave him the idea that any agreement might be called a statute. [40]

He was not arrested "on the case." Civil actions at law are broadly divided into two classes: action ex contractu, growing out of breach of contract, either express or implied, and actions ex delicto, for the recovery for wrongs independent of contract. The suit against Antipholus was of the former class, being for the recovery of the price of goods purchased from the jeweler; an action on the case is one of the actions ex delicto.

Antipholus was actually placed under arrest upon the simple statement of the jeweler to an officer that the former was indebted to him without writ, warrant, or any process whatever.

Justice must be administered in a very primitive style, where one who claims that another is indebted to him can call an officer and say, "Here, officer, this man owes me money; arrest him." Lawyers and courts would be unnecessary, and no one could [41] complain of the law’s delay where such a summary method of procedure was permitted.

The use of the word "testament" is here incorrect. A testator bequeaths personal property by a testament"; he devises real estate by a "will."

In regard to this passage Senator Davis says: It is to be remarked that Antony, in speaking of the real estate left by Caesar to the Roman people, does not use the appropriate word ‘devise.’ Shakespeare nowhere uses the word in connection with a will. It was also unnecessary for Caesar’s will to have contained the expression ‘to your heirs forever’ in order to give the people a perpetual estate in the reality."

Shylock. Go with me to a notary; seal me there
Your single bond, and in a merry sport
If you repay me not on such a day,
In such a place, such sum or sums as are
Expressed in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body it pleaseth me.
         —Merchant of Venice, Act I. scene 3. [42]

It is hardly conceivable that any lawyer, or anyone who had spent a considerable time in a lawyer’s office, in Shakespeare’s age, could have been guilty of the egregious error of calling a bond with a collateral condition a "single bond." A single bond, simplex obligatio, is a bond without a collateral condition, but that described by Shylock is with collateral condition. It is possible that a lawyer in this age would be guilty of ignorance on this point; but hardly in Elizabeth’s age, and least of all a lawyer in an inland town like Stratford. In our time, the use of sealed instruments except in cases of contracts in reference to real estate, contracts by corporations, and bonds with collateral condition, has largely ceased among merchants and business men generally, though still in frequent use by lawyers. This disuse of sealed instruments is, perhaps, chiefly due to the extension of the lex mercatoria, and the advantage of negotiability that pertains to most unsealed instruments, and is also undoubtedly largely due to the fact that almost all men can write their names, and that not to be able to do so is considered a disgrace. Certain legal incidents, for historical reasons, still attach to sealed instruments; but, for practical business purposes, the private seal is now a useless survival of the Middle Ages. Its use has been abolished by statute in most of the Western States. But in Shakespeare’s time the situation was entirely different. The seal was in universal use. Indeed it is beyond dispute that sometimes educated men belonging to the gentry, instead of writing their names themselves, would [43] prefer to have them written by the draughtsman of the instrument which they were to sign and would themselves simply affix their seals, as being distinctive of their house or family; and tradesmen who could write would merely make their marks, they being generally distinctive of their trade or calling. The probability is that, in the small town of Stratford, having little or no commerce with the outside world, the use of the promissory note, bill of exchange, or any unsealed instrument was entirely unknown to its business people. Accordingly, it must be assumed that the difference between a single bond and a bond with a collateral condition was thoroughly understood by every lawyer and every lawyer’s clerk in Stratford.

But in this play, Shakespeare not only manifests his lack of knowledge of the technique of the legal profession; he shows a profound ignorance of law and of the fundamental principles of justice—unless we assume that the trial scene disregards all ideas of law, justice, and morality for mere dramatic effect; but it has been repeatedly shown by many writers that equal dramatic effect could have been attained without such sacrifice.

Portia, as amicits curiæ, or referee, in The Merchant of Venice makes five distinct rulings which are bad in law, in logic, and in morals.* Shylock [44] sues for the penalty under his bond. Portia decides that the contract is lawful, and that he has a right to the penalty. Ex turpe causa non oritur actio was a maxim of the Civil as well as the Common law. Shakespeare was himself apparently familiar with it, for in Henry VI, Part II Act V. Scene 1, he says:

The action could no more have been sustained in Venice than it could in England. Yet Portia awards judgment.

But she adds:

Well might Shylock exclaim "Is that the law?"

Whoever heard of flesh without blood? A fig without seeds, a nut without a shell?

The court, having pronounced judgment and awarded execution, tells Shylock that he must himself execute the judgment. He might well have answered, "I have come here for the court to give me justice, not to take the law in my own hands. [45] I am not an officer of the court; let the court’s officers execute its judgment, and let them be responsible for failure to do so properly. Even if the court gave a judgment for so much money I should perhaps render myself liable in an action for damages if I attempted to collect it myself. It would be the business of the court, through its own officers, to collect my money, and it is the business and duty of the court to deliver me my pound of flesh. I have no right to take it myself, and no court of justice can have the legal power or moral right to make a suitor therein responsible for the execution of its judgments."

But the next ruling is more remarkable than the former. Shylock says he will accept the tender of thrice the bond; but Portia answers "Thou shall have nothing but the penalty," and

Can one imagine it being a criminal act for a creditor to take less than the amount due him?

And, to cap the climax, this remarkable judge then rules that Shylock has forfeited the principal of his debt because he refused a tender. The climax? No; that was still to come. The court quickly resolves itself into one of criminal jurisdiction, and the Jew’s goods and life are declared forfeit: [46] and for what? For having dared to, make a contract which that same court had a moment before declared valid and binding. And finally this judge, who had given utterance to that eloquent appeal for mercy, stands by while the Jew is required, on pain of forfeiture of his life, to abandon the cherished religion of his fathers and his race, and embrace the hated religion of the Christian—an ingenuity of cruelty surpassing that of the thumbscrew or the rack. And all this; the three thousand ducats he had lent, all his property, and all the property which he might afterward acquire (for he was required to record in court a deed of gift of all he died possessed), his religion, and even his life—all forfeited because he had made a contract which the court held was valid and could be enforced.

And, by the way, this deed of gift is another blunder in law. It is a fixed principle of the common law that a man cannot convey a thing which he has not, though he afterward acquire it. Only things in esse, having an actual or potential existence, were subjects capable of gift or grant (Comyn’s Dig. Tit: Grant (D)).

It has been suggested to the author of these papers that this deed of gift might have been valid as a gift causa mortis, or as a Will. But of course no lawyer need be told that it has not a single element necessary to the validity of a gift causa mortis, either under the Civil or Common law. Cooper’s Justinian (ed. 1852), pp. 100, 476.

To be sure instruments in the form of deeds have [47] frequently been construed to be wills under the Common Law. "There is nothing that requires so little solemnity," said Lord Hardwick (in Ross vs. Ewen, 3 Atkins, 163), "as making a Will of personal property, for there is scarcely any writing which will not be admitted as such." In Maryland in 1883 a letter written by a decedent to his daughter was held to be a valid will of personalty (Byers vs. Hoppe, 61 Md. 2o6). Indeed, any writing signed by the party making a disposition of property to take effect after death, whether in the form of a deed, or whatever its form, might or could be construed to be a will. It would appear, however, that this was not so by the Civil law. By it certain particular formalities were necessary in the making of a will (Cooper’s Justinian, Ed. 1852, p. 112, et seq.), and it is therefore improbable that a paper executed as a deed of gift, could, under that system, be adjudged to be a will. But Shylock’s deed of gift of "all he died possessed" would not have been valid as a will of real estate which he might acquire after the date of its execution, any more than it would have been as a deed of gift as to "after-acquired" property. Other reasons of a technical nature might be given why this deed could not have taken effect as a will either under the Common law or the Civil law of Venice. But they are unnecessary. The deed of gift which Shylock was required to execute was not his voluntary act, and it is a contradiction in terms to speak of an involuntary act as a will or testament (which latter word is, essentially identical in meaning with [48] "will"). Testamentum ex eo appellatur, quod testatio mentis sit.

This deed of gift was required to be recorded "here in the court." The recital of such an instrument (for a paper in the form of a deed always shows the consideration or cause of its execution) would show on its face that it was executed in pursuance of a decree of the court, and not by the voluntary act of the party.

The court which passed upon Shylock’s case did not observe the distinction of England between courts of law and equity, but assumed to act as both (indeed, it also assumed criminal jurisdiction). Now, a court of equity originally acted wholly by decrees in personam, and enforced its decrees in no other way than by fine and imprisonment for disobedience. Where, therefore, one obeys such a decree, he cannot be said to act voluntarily.

Waiving, however, all fine distinctions, I conclude: If Shakespeare desired to show his knowledge of law by indicating that a paper in the form of a deed may be considered a will; the method he uses to do so, of itself, shows gross ignorance of the fundamental principles of the law. Assuming that this was Shakespeare’s intention, he—in effect—makes the court order and decree Shylock to execute a will, and file it in the court. If any court ever had such power, this is, I believe, the only recorded instance of its exercise. But it is an absurdity in terms. Assuming, however, that the court had the power, its exercise would be futile, for, if the deed which Shylock executed was in fact [49] a will, he could immediately afterwards have revoked it and made a new and last Will and Testament, thereby defeating the object of Portia’s decree—a thing which could not be within the purview of the dramatic action of the Play. Portia’s object was to compel Shylock to execute a paper which would have the finality of a judicial action. It is the last will that counts, just as in the case of deeds, it is the first.

Of course, if Shylock died intestate, Jessica would inherit or succeed to his property, provided he did not afterwards remarry, and have other children; in which case she would only have taken her pro rata share. But what would happen in case of intestacy is not under discussion. The question is, was the paper valid either as a will or as a deed? The result is that Portia’s effort to vest Jessica (who had married a Christian) with Shylock’s estate, real and personal, was as abortive and as ridiculous as any or all of her judicial pronouncements. Lawyers who like my Lord Campbell and Senator Davis, desire to swear Shakespeare in as a lawyer learned in the law had best omit consideration of The Merchant of Venice.

I cannot close my reference to the law of this play better than by quoting again from Von Ihering:

"The truth remains truth, even when the individual defends it only from the narrow point of view of his personal interests. It is hatred and revenge that takes Shylock before the Court to cut his pound of flesh out of Antonio’s body; but the words [50] which the poet puts into his mouth are as true in it as in any other. It is the language which the wounded feeling of legal right will speak, in all times and in all places; the power, the firmness of the conviction, that law must remain Law, the lofty feeling and pathos of a man who is conscious that, in what he claims, there is a question not only of his person but of The Law. ‘The pound of flesh,’ Shakespeare makes him say:

‘I crave the law.’ In these four words, the poet has described the relation of the law, in the subjective, to law in the objective sense of the term: and the meaning of ‘The Struggle for Law,’ in a manner better than any philosopher of the law could have done it. These four words change Shylock’s claim into a question of the Law of Venice. To what mighty, giant dimensions does not the weak man grow, when he speaks these words! It is no longer the Jew demanding his pound of flesh; it is the Law of Venice itself, knocking at the door of justice; for his Rights and the Law of Venice are one and the same; they must stand or fall together."

We feel little pity for Shylock, but our sense of reverence for the law is shocked—the majesty of the Law is degraded. [51]

Thus I believe I have shown, though in a very brief and imperfect way, that Shakespeare had no knowledge of the technique of law, and no just appreciation of those fundamental principles of justice which are the basis of all law. Though he excelled all other men who have ever lived in knowledge of, and in ability to portray, human nature in all its aspects, his ideas of human rights were narrow and bigoted.

It has been said that Englishmen for generations took their religion from Milton, and their history from Shakespeare; but for their law they have looked and must look to an entirely different class of men.

THE END

________

* See Shakespeare in Fact and in Criticism, Appleton Morgan; New York, Benjamin, 1888, p. 180. To make these errors more apparent, Dr. Morgan imagines the case of Shylock and Antonio, as decided by Portia, sent back for a new trial before Portia, and finally as reversed, as to every one of her rulings, by a full bench on appeal. back