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Part Five - William Shakespeare - Attorney At Law
There are, however, very considerable grounds for the opinion that Shakespeare had more than a layman’s acquaintance with the technical language of the law. For it must be admitted, in the first place, that he exhibits a remarkable acquaintance with it. That other playwrights and poets of his day manifest a like familiarity (as we have seen they do) precludes us, indeed, from regarding the mere occurrence of law-terms in his works as indications of early training proper to him alone. But they who, on the strength of the not unfrequent occurrence of legal phrases in many of the plays and much of the poetry of the Elizabethan period, would maintain that Shakespeare’s use of them furnishes no basis for the opinion that he acquired his knowledge of them professionally, must also assume and support the position, that, in the case of contemporary dramatists and poets, this use of the technical language of conveyancing and pleading also indicates no more than an ordinary acquaintance with it, and that, in comparing his works with theirs in this regard, we may assume the latter to have been produced by men who had no professional acquaintance with the law; because, if they had such professional acquaintance with legal phraseology, its appearance in their works as well as in Shakespeare’s would manifestly strengthen rather than invalidate the conclusion, that his familiarity with it was acquired as they acquired theirs. This position is, to say the least, a very difficult one to maintain, and one which any considerate student of Elizabethan literature would be very unwilling to assume. For our ignorance of the personal life of Shakespeare is remarkable only because he was Shakespeare; and we know little,  if any, more about the greater number of his literary contemporaries than we do about him. It cannot even be safely presumed, for instance, that George Wilkins, the author of the law-besprinkled passage just above quoted from the Miseries of Enforced Marriage, was not a practising attorney or barrister before or even at the time when he wrote that play. On the contrary, it is extremely probable, nay, quite certain, that he and many other dramatic authors of the period when he flourished, (1600-1620,) and of the whole Elizabethan period, (1575-1625) were nestling attorneys or barristers before they became full-fledged dramatists.
We are not without contemporary evidence upon this point. Thomas Nash, friend to. Robert Greene, a playwright, poet, and novelist, whose works were in vogue just before Shakespeare wrote, in an Epistle to the Gentlemen Students of the Two Universities, with which, according to the fashion of the time, he introduced Greene’s Menaphon (1587)* to the reader, has the following paragraph:
I will turn my back to my first text of studies of delight, and talk a little in friendship with a few of our trivial translators. It is a common practice, now-a-days, amongst a sort of shifting companions that run through every art and thrive by none, to leave the trade of Noverint, whereto they were born, and busy themselves with the endeavors of art, that could scarcely Latinize their neck-verse, if they should have need; yet English Seneca, read by candlelight, yields many good sentences, as, Blood is a beggar, and so forth; and if you intreat him fair in a frosty morning, he will afford you whole Hamlets—I should say, handfuls of tragical speeches. But, oh, grief! Tempus edax rerum—what is that will last always? The sea, exhaled by drops, will, ill continuance, be dry; and Seneca, let blood line by line and page by page, at length must needs die to our stage.
It has most unaccountably been assumed that this passage refers to Shakespeare;† and it is even so cited by Lord Campbell himself—to our surprise, when we remember his professional training and experience as a sifter of evidence. But, as far as regards its reference to a leaving of law for literature, it is clearly of general application. Nash says, "It is a common practice, now-a-days, amongst a sort of shifting companions, etc., to leave the trade of Noverint, whereto they were born, and busy themselves," etc. By the trade of Noverint be meant that of an attorney. The term was not uncommonly applied to members of that profession, because of the phrase, Noverint universi per presentes, (Know all men by these presents,) with which deeds, bonds, and many other legal instruments then began. And Nash’s testimony accords with what we know of the social and literary history of the age. There was no regular army in Elizabeth’s time; and the younger sons of gentlemen and well-to-do yeomen, who received from their fathers little more than an education and a very small allowance, and who did not become either military or maritime adventurers, opening their oyster with a sword, entered the Church or the profession of the law in its higher or lower grade; and as at that period there was much more demand for lawyers and much less for clergymen than there is now, and the Church had ceased to be a stepping stone to political power and patronage, while the law had become more than ever before an avenue to fame, to fortune, and to rank, by far the greater number of these young gentlemen aspired to the woolsack. But then, as now, the early years of professional life were seasons of sharp trial and bitter disappointment. Necessity pressed sorely or pleasure wooed resistlessly, and the slender purse wasted rapidly away while the young attorney or barrister awaited  the employment that did not come. He knew then, as now he knows, "the rich man’s scorn, the proud man’s contumely"; nay, he felt, as now he sometimes feels, the tooth of hunger gnawing through the principles and firm resolves that partition a life of honor and self-respect from one darkened by conscious loss of rectitude, if not by open shame. Happy—yet, perhaps, oh, unhappy—he who now in such a strait can wield the pen of a ready writer!—for the press, perchance, may afford him a support which, though temporary and precarious, will hold him up until he can stand upon more stable ground. But in the reigns of Good Queen Bess and Gentle Jamie there was no press. There was, however, an incessant demand for new plays. Play-going was the chief intellectual recreation of that day for all classes, high and low. It filled the place of our newspapers, our books, our lectures, our concerts, our pictureseeing and, in a great measure, of our social gatherings and amusements, of whatever nature. It is hardly extravagant to say, that there were then more new plays produced in London in a month than there are now in Great Britain and the United States in a year. To play-writing, then, the needy young attorney or barrister possessed of literary talent turned his eyes at that day, as he does now to journalism; and it is almost beyond a doubt, that, of the multitudinous plays of that period which have survived and the thousands which have perished, a large proportion were produced by the younger sons of country gentlemen, who, after taking their degrees at Oxford or Cambridge, or breaking away from those classic bounds ungraduated, entered the Inns of Court, according to the custom of their day and their condition. They wrote plays in Latin, and even in English, for themselves to act; and they got the professional players to act popular plays for them on festal days. What more natural, then, than that those who had the ability and the need should seek to recruit their slender means by supplying the constant demand for new plays? and how inevitable that some of them, having been successful. in their dramatic efforts, should give themselves up to play-writing! As do the great, so will the small. What the Inns-of-Court man did, the attorney would try to do. The players, though they loved the patronage of a lord, were very democratic in the matter of playmaking. If a play filled the house, they did not trouble themselves about the social or professional rank of him who wrote it; and thus came about that "common practice" for "shifting companions" to "leave the trade of Noverint" and "busy themselves with the endeavors of art"; and hence it is that the plays of the period of which we are writing have, in many passages, so strong a tinge of law.
One reason for the regarding of Nash’s sneer as especially directed against Shakespeare is the occurrence in it of the phrase, "whole Hamlets—I should say, handfuls of tragical speeches," which has been looked upon as an allusion to Shakespeare’s great tragedy. But the earliest edition of Hamlet known was published in 1603, and even this is all imperfect and surreptitiously obtained copy of an early sketch of the play. That Shakespeare had written this tragedy in 1586, when he was but twenty-two years old, is improbable to the verge of impossibility; and Nash’s allusion, if, indeed, he meant a punning sneer at a play, (which is not certain,) was, doubtless, to an old lost version of the Danish tragedy upon which Shakespeare built Hamlet.
We have, then, direct contemporary testimony, that, at the period of Shakespeare’s entrance upon London life, it was a common practice for those lawyers whom want of success or all unstable disposition impelled to a change in their avocation to devote themselves to writing or translating plays; and this statement is not only sustained by all that we know of the customs of the time to which it refers, but is strongly confirmed by the notably frequent occurrence of legal phrases in the dramatic literature of that age.  But the question, then, arises—and it is one which, under the, circumstances, must be answered—To what must we attribute the fact, that, of all the plays that have come down to us, written between 1580 and 1620, Shakespeare’s are most noteworthy in this respect? For it is true, that, among all the dramatic writers of that period, whose works have survived, not one uses the phraseology of the law with the frequency, the freedom, and the correctness of Shakespeare. Beaumont, for instance, was a younger son of a Judge of the Common Pleas, and, following the common routine that we have noticed, after leaving the University, became an Inns-of-Court man, but soon abandoned law for literature; his friend and associate, Fletcher, was the son of a bishop, but had an uncle who was a lawyer and a diplomatist, and is himself believed to have been of the Inns of Court. Rich gleanings of law-terms might, therefore, be expected from the plays written by these dramatists; yet it may safely be asserted, that from. Shakespeare’s thirty-seven plays at least twice as many passages marked by legal phraseology might be produced, as from the fifty-four written by Beaumont and Fletcher, together or alone! a fact the great significance of which is heightened by another—that it is only the vocabulary of the law to the use of which Shakespeare exhibits this proclivity. He avails himself, it is true, of the peculiar language of the physician, the divine, the husbandman, the soldier, and the sailor; but he uses these only on very rare occasions, by way of description, comparison, or illustration, when something in the scene or the subject in hand suggests them. But the technical language of the law runs from his pen as part of his vocabulary and parcel of his thought. The word "purchase," for instance, which in ordinary use means to acquire by giving value, in law applies to all legal modes of obtaining property, except inheritance of descent. And the word in this peculiar and most technical sense occurs five times in Shakespeare’s thirty-seven plays, but only in a single passage (if our memory and Mr. Dyce’s notes serve us) in the fifty-four plays of Beaumont and Fletcher. Equal, or greater, is the comparative frequency with which Shakespeare uses other legal phrases; and much wider is the, disparity, in this regard, between him and the other dramatic writers of his whole period—Marlowe, Greene, Peele, Kyd, Lilly, Chapman, Jonson, Middleton, Marston, Ford, Webster, Massinger, and the undistinguished crowd.
These facts dispose in great measure of the plausible suggestion which has been made—that, as the courts of law in Shakespeare’s time occupied public attention much more than they do at present, they having then regulated "the season," as the sittings of Parliament (not then frequent or stated) do now, they would naturally be frequented by the restless, inquiring spirits of the time, Shakespeare among them, and that there he and his fellow-dramatists picked up the law-phrases which they wove into their plays and poems. But if this view of the case were the correct one, we should not find that disparity in the use of legal phrases which we have just remarked. Shakespeare’s genius would manifest itself in the superior effect with which he used knowledge acquired in this manner; but his genius would not have led him to choose the dry and affected phraseology of the law as the vehicle of his flowing thought, and to use it so much oftener than any other of the numerous dramatists of his time, to all of whom the courts were as open as to him. And the suggestion which we are now considering fails in two other most important respects. For we do not find either that Shakespeare’s use of legal phrases increased with his opportunities of frequenting the courts of law, or that the law-phrases, his use of which is most noteworthy and of most importance in the consideration of the question before us, are those which he would have heard oftenest in the course of the  ordinary business of the courts in his day. To look at the latter point first, the law-terms used by Shakespeare are generally not those which he would have heard in ordinary trials at nisi prius or before the King’s Bench, but such as refer to the tenure or transfer of real property, "fine and recovery," "statutes," "purchase," "indenture," "tenure," "double voucher," "fee simple," "fee farm," "remainder," "reversion," "dower," "forfeiture," etc., etc.; and it is important to remember that suits about the title to real estate are very much rarer in England than they are with us, and in England were very much rarer in Shakespeare’s time than they are now. Here we buy and sell houses and lands almost as we trade in corn and cotton; but in England the transfer of the title of a piece of real estate of any consequence is a serious and comparatively rare occurrence, that makes great work for attorneys and conveyancing counsel; and two hundred and fifty years ago the facilities in this respect were very much less than they are now. Shakespeare could hardly have picked up his conveyancer’s jargon by hanging round the courts of law; and we find—to return to the first objection—that, in his early plays, written just after he arrived in London, he uses this peculiar phraseology just as freely and with as exact a knowledge as he displayed in after years, when (on the supposition in question) he must have become much more familiar with it. Shakespeare’s earliest work that has reached us is, doubtless, to be found in King Henry the Sixth, The Comedy of Errors, and Love’s Labor’s Lost. In the very earliest form of Part II of the first-named play ("The First Part of the Contention betwixt the two Houses of York and Lancaster," to which Shakespeare was doubtless a contributor, the part of Cade being among his contributions) we find him making Cade declare (Act iv. Sc.7) "Men shall hold of me in capite; and we charge and command that wives be as free as heart can wish or tongue can tell." Both the phrases that we have Italicized express tenures, and very uncommon tenures of land. In the Comedy of Errors, when Dromio of Syracuse says "There’s no time for a man to recover his hair that grows bald by nature," [Hear, O Rowland! and give ear, O Phalon!] his master replies, "May he not do it by fine and recovery?" Fine and recovery was a process by which, through a fictitious suit, a transfer was made of the title in an entailed estate. In Love’s Labor’s Lost, almost without a doubt the first comedy that Shakespeare wrote, on Boyet’s offering to kiss Maria, (Act ii. Sc.1) she declines the salute, and says, "My lips are no common, though several they be." This passage—an important one for his purpose—Lord Campbell has passed by, as he has some others of nearly equal consequence. Maria’s allusion is plainly to tenancy in common by several (i. e., divided, distinct) title. (See Coke upon Littleton, Lib. iii. Cap. iv. See. 292.) She means, that her lips are several as being two, and (as she says in the next line) as belonging in common to her fortunes and herself—yet they were no common pasture.
Here, then, is Shakespeare using the technical language of conveyancers in his earliest works, and before he had had much opportunity to haunt the courts of law in London, even could he have made such legal acquirements in those schools. We find, too, that he uses law-terms in general with frequency notably greater—in an excess of three or four to one—than any of the other playwrights of his day, when so many playwrights were or had been Noverints or of the Inns of Court; that this excess is not observable with regard to his use of the vocabulary peculiar to any other occupation or profession, even that of the actor, which we know that he practised for many years but that, on the contrary, although he uses other technical language correctly, he avails himself of that of any single art or occupation with great rarity, and only upon special occasions. Lord Campbell remarks, as to the correctness with which Shakespeare uses legal phrases—  and this is a point upon which his Lordship speaks with authority—that he is amazed "by the accuracy and propriety with which they are introduced," and in another place adds that Shakespeare "uniformly lays down good law"; and it is not necessary to be a Chief Justice of the Queen’s Bench to know that his Lordship is fully justified in assuring us that "there is nothing [of the kind (?)] so dangerous as for one not of the craft to tamper with our free-masonry." Remembering, then, that genius, though it reveals general and even particular truths, and facilitates all acquirement, does not impart facts or the knowledge of technical terms, in what manner can we answer or set aside the question that we have partly stated before—How did it happen that in an age when it was a common practice for young attorneys and barristers to leave their profession and take to writing plays and poems, one playwright left upon his works a stronger, clearer, sharper legal stamp than we can detect upon those of any other, and that he used the very peculiar and, to a layman, incomprehensible language of the law of real property, as it then existed, in his very earliest plays, written soon after he, a raw, rustic youth, bred in a retired village, arrived in London? How did it happen that this playwright fell into the use of that technical phraseology, the proper employment of which, more than any other, demands special training, and that he availed himself of it with apparent unconsciousness, not only so much oftener than all of his contemporaries, but with such exact knowledge, that one who has passed a long life in the professional employment of it, speaking as it were officially from the eminent position which he has won—Lord Campbell—declares that,
"While novelists and dramatists are constantly making mistakes as to the law of marriage, of wills, and of inheritance, to Shakespeare’s law, lavishly as he propounds it, there can neither be demurrer, nor bill of exceptions, nor writ of error"?
Must we believe, that the man, who, among all the lawyer-playwrights of his day, showed—not, be it noticed (as we are at present regarding his works) the profoundest knowledge of the great principles of law and equity, although he did that too—but the most complete mastery of the technical phrases, the jargon, of the law and of its most abstruse branch—that relating to real estate—and who used it very much the oftenest of them all, and with an air of as entire unconsciousness as if it were a part of the language of his daily life, making no mistakes that can be detected by a learned professional critic—must we believe that this man was distinguished among those play-writing lawyers, not only by his genius, but his lack of particular acquaintance with the law? Or shall we rather believe that the son of the High Bailiff of Stratford, whose father was well-to-do in the world, and who was a somewhat clever lad and ambitious withal, was allowed to commence his studies for a profession for which his cleverness fitted him and by which he might reasonably hope to rise at least to moderate wealth and distinction, and that he continued these studies until his father’s loss of property, aided, perhaps, by some of those acts of youthful indiscretion which clever lads as well as dull ones sometimes will commit, threw him upon his own resources—and that then, having townsmen, perhaps fellow-students and playfellows, among the actors in London, and having used his pen, as we may be sure he had, for other purposes than engrossing and drawing precedents, he, like so many others of his time, left his trade of Noverint and went up to the metropolis to busy himself with endeavors of art? One of these conclusions is in the face of reason, probability, and fact; the other in accordance with them all.
But of how little real importance is it to establish the bare fact, that Shakespeare was an attorney’s cleric before he was an actor! Suppose it proved, beyond a doubt—what have we learned? Nothing peculiar to Shakespeare; but merely  what was equally true of thousands of other young men, his contemporaries, and hundreds of thousands, if not millions, of those of antecedent and succeeding generations. It has a naked material relation to the other fact, that he uses legal phrases oftener than any other dramatist or poet; but with his plastic power over those grotesque and rugged modes of speech it has nought to do whatever. That was his inborn mastery. Legal phrases did nothing for him; but he much for them. Chance cast their uncouth forms around him, and the golden overflow from the furnace of his glowing thought fell upon them, glorifying and enshielding them forever. It would have been the same with the lumber of any other craft; it was the same with that of many others—the difference being only of quantity, and not of kind. How, then, would the certainty that he had been bred to the law help us to the knowledge of Shakespeare’s life—of what he did for himself, thought for himself, how he joyed, how he suffered, what he was? Would it help us to know what the Stratford boys thought of him and felt toward him who was to write Lear and Hamlet, or how the men of London rewarded him who was a-writing them? Not a whit. To prove the fact would merely satisfy sheer aimless, fruitless curiosity; and it is a source of some reasonable satisfaction to know that the very people who would be most interested in the perusal of a biography of Shakespeare made up of the relation of such facts are they who have least right to know anything about him. Of the hundreds of thousands of people who giggled through their senseless hour at the American Cousin—a play which in language, in action, in character, presents no semblance to human life or human creatures, as they are found on any spot under the canopy, and which seems to have been written on the model of the Interlude of Pyramus and Thisbe, "for, in all the play, there is not one word apt, one player fitted"—of the people to whom this play owed its monstrous success, and who, for that very reason, it is safe to say, think Shakespeare a bore on the stage and off it, a goodly number would eagerly buy and read a book that told them when he went to bed and what he had for breakfast, and would pay a ready five-cent piece for a picture of him, as he appeared in the attorney’s office, to preserve as a companion to the equally veritable "portrait of the Hon. Daniel E. Sickles, as he appeared in prison." Nay, it must be confessed that there are some Shakespearean enthusiasts ever dabbling and gabbling about what they call Shakespeariana, who would give more for the pen with which he engrossed a deed or wrote Hamlet, than for the ability to understand better than they do or ever can, what he meant by that mysterious tragedy. Biography has its charms and its uses; but it is not by what we know of their bare external facts that
What the readers of Shakespeare, who are worthy to know aught of him long to know, would have been the same, had he been bred lawyer, physician, soldier, or sailor. It is of his real life, not of its mere accidents, that they crave a knowledge; and of that life, it is to be feared, they will remain forever ignorant, unless he himself has written it.
* Lord Campbell gives the date 1589; but see Mr. Dyce's indisputable authority. Greene's Works. Vol. I., pp. xxxvii. and ciii. back
It seems clear, on the contrary, that Nash's object was to sneer at Jasper Heywood, Alexander Nevil, John Studley, Thomis Nuce, and Thomas Newtonone or more of themwhose Seneca, his Tenne Tragedies translated into Englysh, was published in 1581. It is a very grievous performance; and Shakespeare, who had read it thoroughly, made sport of it in A Midsummer Night's Dream. back
Falstaff, for instance, speaks of "the wearing out of six fashions, which is four terms or two actions." back
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