from Greenwood's Is There a Shakespeare Problem?

"Shakespeare's Legal Knowledge" – Part 2

It will be seen, therefore, that it would be difficult to find two sonnets more dissimilar than these two in which Mr. Robertson finds such a striking parallel that "there can be no question," in his judgment, that Shakespeare modelled his sonnet upon Drayton’s, and "closely imitated him"! It is true that the words "spirit," "angel," and "devil" occur in both, but the essential idea of Shakespeare’s sonnet is, as I have shown, absolutely different from that of Drayton’s. I am well content to be able to present the reader with this example of Mr. Robertson’s critical acumen.

But even if these sonnets had been as alike as they are, in fact, dissimilar, what right has Mr. Robertson to say that Shakespeare here imitated Drayton? Drayton’s sonnet first appeared in England’s Heroical Epistles, published in 1599. This was the third edition of that work, the first having been issued in 1597, and the second in 1598, but the sonnet in question was not added till the year 1599.* And Shakespeare’s sonnet (No. cxliv) was printed in The Passionate Pilgrim, which was published in the same year. The dates of publication, therefore, seem to exclude Mr. Robertson’s very questionable hypothesis, concerning which he characteristically says there can be "no question." But the reply is, of course, easy. Beyond doubt Drayton showed Shakespeare his sonnet in manuscript before the year 1599! Were they not bosom friends and boon companions? Did they not get drunk together at "a merry meeting," and did not Shakespeare die "of a fever there contracted"? Is not this the testimony of the Rev. John Ward, vicar of Stratford, somewhere about 1663? [49] In this way all carping objections are easily disposed of.**

But now let us consider further Mr. Robertson’s contention with regard to Shakespeare’s supposed legal knowledge, which is that a very large number of writers, dramatists and others, contemporary with Shakespeare, although devoid of legal training, not only use legal terms with the same frequency as he does, but (and this is the important point) display quite as much knowledge of law as is to be found in the Plays and Poems of Shakespeare; in fact, that the use of legal phraseology was a mere trick or fashion of the day, like Euphuism, for example; that Shakespeare merely indulges in this vogue like any other writer of the time, and that his use of legal phraseology shows no more real knowledge of law, or familiarity with legal life, than the similar use of such phraseology which is to be found abundantly in other lay writers his contemporaries.

I believe I have correctly stated the proposition, and in support of it Mr. Robertson has, with admirable industry, collected a large number of instances which he presents to us as parallel cases to that of Shakespeare in this connection.

But now, before going further, let us say one word with regard to the method of proof. What is it to be? Mr. Robertson quotes, in order to visit it with condign condemnation, the following passage from my book (p. 395) with regard to parson Adams and the legal expressions to be found in his sermons: [50]

"It is not," I wrote, "a question of the mere use of legal phrases or maxims, such as ‘acknowledging a fine,’ ‘a writ ad melius inquirendum,’ ‘non est inventus,’ ‘noverint universi,’ ‘seised,’ ‘volenti non fit injuria,’ ‘tenants at will,’ ‘tenants in capite,’ ‘bargain and sale,’ and the like. The question is, whether Shakespeare, when we consider his works as a whole, does not exhibit such a sound and accurate knowledge of law, such a familiarity with legal life and customs, as could not possibly have been acquired (or ‘picked up’) by the Stratford player; whether it be not the fact, as Richard Grant White puts it, that ‘legal phrases flow from his pen as part of his vocabulary, and parcel of his thought’? It is not to the purpose to compile mere lists of legal terms and expressions from the pages of other Elizabethan writers, and those who do so simply display an ignoratio elenchi, as the old philosophers would say."

Upon this Mr. Robertson waxes most virtuously indignant. He regrets that "there is something worse here than ignoratio elenchi," but, most mercifully, he "will not characterise it further than by the use of the phrase of the distinguished living statesman who pronounced certain political arguments to be samples of the ‘black arts of surrebuttal and surrejoinder.’" "Mr. Greenwood," says Mr. Robertson, "has simply sought to change the issue while professing to argue it"; and he adds, authoritatively: "It is a question of ‘the mere use of legal phrases or maxims’—or, still worse, of the inferences to be drawn from mere scoffing allusions to the practices of lawyers." The last part of this sentence, or its bearing on the controversy, I do not quite understand; but as to the "mere use of legal phrases or maxims," not even the ipsissumus dixit of Mr. J. M. Robertson can alter the obvious truth of my declaration. The legal knowledge of a writer, Shakespeare or anybody else, cannot be proved by the fact that he merely makes [51] "use of legal phrases and maxims." A man may string together a number of legal expressions, such as "fines and recoveries," "tenants in capite," "noverint universi," etc. etc., who is nevertheless altogether destitute of legal knowledge. If Shakespeare is found merely to do this, then, indeed, are they justified who talk so lightly about his "picking up" his law from his father’s law-suits in the local Court at Stratford, or at London "ordinaries," or by other means which may be easily suggested. I adhere absolutely to the words which Mr. Robertson has quoted from my book, and I absolutely deny that I have "sought to change the issue while professing to argue it"; noting meanwhile that Mr. Robertson does not scruple to charge me with such dishonest procedure. No, no. The question is as I have very clearly stated it. It may be that the authorities whom I cited, and upon whom I relied, are altogether wrong in thinking that Shakespeare, when we consider his works as a whole, "exhibits such a sound and accurate knowledge of law, such a familiarity with legal life and customs, as could not possibly have been acquired (or ‘picked up’)" unless he had received something in the nature of a legal training; but if the works do show this then it is, most assuredly, nothing to the purpose to produce lists of legal phrases culled from contemporary writers, as though such lists were evidence of an equal knowledge of law on the part of those who make use of them. Anybody can put together legal terms in this way, and if Shakespeare merely does this then it is absurd to argue that he shows an accurate, or, indeed, any, knowledge of law, beyond the knowledge of the existence of those terms whereof he makes use. Readers are familiar with the passage in Dekker’s Gul’s Horn-Booke, to which Lord Campbell has made reference, where he mentions the London "Ordinary, to which your London Usurer your stale Batchelor, and your thrifty Attorney [52] do resort"; where "if they chance to discourse, it is of nothing but of Statutes, Bonds, Recognizances, Fines, Recoveries, Audits, Rents, Subsidies, Sureties, Inclosures, Liveries, Inditements, Outlawes, Feoffments, Judgments, Commissions, Bankerouts, Amorcements, and of such horrible matter." But such talk, even though a "thrifty Attorney" be one of the party, does not reveal any special knowledge of law on the part of those who make use of the terms mentioned. These things, indeed, may be "picked up," but anyone who has served his apprenticeship to the law—who has read for some years "in Chambers," passed his examination, gone on "circuit" and attended Quarter Sessions, attained at last to practice in the High Court, after having held briefs in County Courts, and Police Courts, and wheresoever else employment might offer itself—will be well aware how ridiculous it is to talk of "picking up" a real knowledge of English law and procedure, and will appreciate the words of Lord Campbell, Lord Chief Justice and Lord Chancellor, when he speaks of "the difficulty to be encountered by Shakespeare in picking up his knowledge of that which I myself have been so long labouring to understand."

I repeat, therefore, if Shakespeare merely used his legal expressions in the same manner as that in which the heroes of Dekker’s "Ordinary" habitually strung them together, there is no question to be investigated, and it is sheer waste of time and trouble to summon a cloud of contemporary witnesses to prove that other writers of that day did the same thing; for, as I wrote in my book some six years back, it is admitted that "this use of legal jargon is frequently found in lay writers, poets and others, of the Elizabethan period." If, however, Shakespeare is found, not merely to have made use of these legal terms and expressions, but to have used them in such a way as to justify us in coming to the conclusion that he had real knowledge of the rules and technicalities [53] of the law, then, if the comparative method is to be employed to any purpose, it must show (on behalf of those who deny that Shakespeare had had a legal training) that other writers of the day, poets and dramatists included, who had had no legal training or exceptional opportunities of acquiring legal knowledge, also made use of such terms and expressions in a similar manner, evidentiary of a similar knowledge on their part also.

But, before considering the manner in which Mr. Robertson employs the comparative method, let us say one word more concerning Lord Campbell and his letter to Mr. Payne Collier. Mr. Robertson speaks of Lord Campbell in terms of unmeasured contempt. As for his "evidential passages . . . the mere presentment will probably suffice to dispose of them for most readers, so utterly void are they of justification for the thesis built upon them. Comment is often entirely needless; the one constant difficulty is to believe that the judge is serious."***

Now here I will make Mr. Robertson the present of a frank admission. I cited Lord Campbell’s opinion as to Shakespeare’s legal knowledge because, as the opinion of a Lord Chief justice and Lord Chancellor, I conceived that it was entitled to some weight, and because his book Shakespeare’s Legal Acquirements is so constantly referred to with respect by Shakespeareans—Sir Sidney Lee, as I have shown, being no exception to the rule. I am quite free to own, however, that I should not care to rest the theory that Shakespeare had the amount of legal knowledge which Lord Campbell ascribes to him, simply on the "evidential passages" which he has presented to us.† At the same time I am not quite satisfied [54] that those passages deserve the very large measure of scorn and contumely which Mr. Robertson has heaped upon them. I do not propose to impose upon myself or my readers the weary task of going through them seriatim, but I will just turn to one or two examples.

The first is from The Merry Wives (II, 2), where Ford says his love was "Like a fair house built upon another man’s ground; so that I have lost my edifice by mistaking the place where I erected it." Upon this Lord Campbell says that it "shows in Shakespeare a knowledge of the law of real property, not generally possessed." This, certainly, sounds somewhat ridiculous. Mr. Robertson, who puts the words "not generally possessed" into italics to emphasize their absurdity, says: "It might suffice to answer that such knowledge is to-day possessed by millions of laymen; and that in the litigious days of Elizabeth it must have been at least as common."

Can we "believe that the judge is serious"? asks Mr. Robertson. Why, "millions of laymen know it." Yes, but what do they know? Why, that if A. builds a house on B.’s land the house becomes the property of B. Well, but let us suppose that A. builds upon B.’s land honestly believing that it is his own land, "mistaking the place where he erects it," and B., the real owner, allows the erection to be made, and gives no notice of his claim, can B. then, when A. has spent his money and the house is built, assert that he is the rightful owner of it, and will the law support him in such a claim on the ground that aedificatum solo solo cedit? If so, surely the law is very unjust! But is such the law? No doubt the "millions of laymen" can answer this question off-hand, and to Mr. Robertson, with his four and a half years in a Scotch law office, there is, of course, no difficulty at all. For myself, however, I own that (no doubt because my law is somewhat rusty) I was not a little doubtful what the [55] rrect answer would be; so knowing that the legal maxim above cited is founded on Justinian’s Institutes, I turned to that work (long unopened by me) as edited by T. C. Sandars, once a "Barrister-at-law," and "late Fellow of Oriel College, Oxford," and I found the whole question learnedly discussed on Lib. II, Tit. I, par. 30; and I am brought to the conclusion that, in such a case as I have supposed, if the owner brings a suit for the recovery of the land, Equity would compel him to make allowance and compensation, for the improvement of his property, so that although A. would still "lose his edifice" he would, nevertheless, receive compensation from the owner of the land. "Of course," says Justinian (as translated by Mr. Sandars), "if the person who builds is in the possession of the soil, and the owner of the soil claims the building, but refuses to pay the price of the materials and the wages of the workmen, the owner may be repelled by an exception of dolus malus, provided the builder was in possession bond fide." Such was the old Roman law upon which our law on this subject is founded. Justinian’s statements and Mr. Sandars’s learned comments thereon are well worth consulting by the reader who is interested in the matter. Meanwhile we may remark that the question is not one of quite such childlike simplicity, nor is the law on the subject quite so universally known and understood, as Mr. Robertson appears to imagine.†† [56]

Still it must be admitted that we should require many instances of this sort, and instances of a more striking kind, before we could safely build upon such utterances any decided theory as to Shakespeare’s legal knowledge. Besides, does not Mr. Robertson supply us with a further answer? "Let the lawyer," says he, "be answered in legal form. In Dekker’s Shoemaker’s Holiday, published in 1597, Hodge says (V, 2): ‘The law’s on our side; he that sows on another man’s ground forfeits his harvest.’ Hodge is a foreman shoemaker. Was Dekker an attorney’s clerk, or was Hodge talking in character and saying what any shoemaker might? Or was it a lawyer who penned in Heywood’s English Traveller (IV, 1) the lines,

Or is Chapman to be credited with a legal training because he cites the legal maxim Aedificium cedit solo in May Day (III, 3)?"†††

Here, I must say, in passing, that I fail to see what the relevancy is of the passage cited from Heywood. Is it really suggested that this passage is a fair parallel to that cited from Shakespeare? If so, I can only say that I am quite unable to appreciate it. But let that pass. We are now brought to a consideration of the manner in which Mr. Robertson makes use of the comparative argument founded upon the employment of legal terms and expressions by other writers contemporary with Shakespeare. But, yet again, before entering upon this consideration, let us consider the second instance taken [57] by Mr. Robertson from Lord Campbell. It runs thus:

MRS. FORD. What think you? (May we, with the warrant of womanhood, and the witness of a good conscience, pursue him) with any farther revenge?

MRS. PAGE. The spirit of wantonness is, sure, scared out of him: (if the devil have him not in fee simple, with fine and recovery, he will never), I think, in the way of waste, attempt us again.‡

Now it is true that Lord Campbell puts the words "warrant" and "witness" into italics, thus calling attention to them in connection with the legal terms which follow, but he makes no reference to them as supporting his case. What he does say is: "This Merry Wife of Windsor is supposed to know that the highest estate which the devil could hold in any of his victims was a fee simple strengthened by fine and recovery."

Now it is, of course, open to Mr. Robertson, or anybody else, to say that in his judgment such an instance as this has no weight as a contribution to the argument that Shakespeare had more than ordinary legal knowledge. But what does Mr. Robertson do? He actually has collected instance after instance of the use of the words "warrant" and "witness" in other contemporary writers. Among others he quotes a passage from Ben Jonson’s Every Man in His Humour, where the verb "warrants" occurs ("warrants your authority"), and concludes with this sapient dictum: "‘Warrants,’ in fact, swarm through the play. Which clearly proves that Jonson must have been an attorney’s clerk! [my italics]. And between ‘warrant’ and ‘witness’ every other Elizabethan dramatist would be in the same list."

I should hesitate to say whether criticism of this kind [58] is more distinguished by its shallowness or its disingenuousness. "‘Warrants,’ in fact, swarm." Why, of course they do. The word "witness" occurs in every other Elizabethan dramatist. Why, of course it does. Mr. Robertson has led his readers to think that Lord Campbell had founded his judgment and based his argument on these two words, and having so done he occupies himself in the futile task of collecting other instances of their occurrence in the pages of other writers of the day, where, of course, they are to be found "thick as autumnal leaves that strew the brooks in Vallombrosa." And as, probably, not one in a hundred of Mr. Robertson’s readers will refer to Lord Campbell’s book the effect will, no doubt, be all that Mr. Robertson desires.

In truth, whatever weight Lord Campbell ascribes to the passage in question, is derived, as he tells us, from the fact that Mrs. Page is supposed to know that "the highest estate" which man or devil could hold, according to the law at that time, was "a fee simple strengthened by fine and recovery." It may be that his lordship was altogether wrong in attaching any importance at all to the passage in question, but to wander away from it in order to pick up "warrants" and "witnesses" wheresoever they may be found (and, of course, they are to be found everywhere) is simply to darken counsel and to give anything but a fair measure of justice to Lord Campbell’s unfortunate book.‡‡