"Shakespeare's Legal Knowledge" – Part 3

Having done this, Mr. Robertson sets out to find a parallel passage to the sentence, "if the devil have him not in fee simple, with fine and recovery," etc. And this is how he proceeds: "On Lord Campbell’s principle, [59] then, what inference shall we draw from this piece of dialogue between wooer and lady in one of Greene’s stories?

‘Yet Madame, (quoth he) when the debt is confest there remaineth some hope of recovery. . . . The debt being due, he shall by constraint of law and his own confession (maugre his face) be forced to make restitution. Truth, Garydonius (quoth she), if he commence his action in a right case and the plea he puts in prove not imperfect. But yet take this by the way, it is hard for that plaintiff to recover his costs where the defendant, being judge, sets down the sentence.’ The Card of Fancy, 1587, Works, ed. Grosart, IV., 108.*

"The ‘debt’ in question is one of unrequited love. Shall we then pronounce that Greene wrote as he did because ‘his head was full of the recondite terms of the law’?"

Amazement seizes me as I read passages like this. Is this, I ask, the strong reasoner, the great logician, the doughty controversialist? And does he really think that there is any analogy between the passage cited from The Merry Wives and the quotation above set forth from The Card of Fancy? Shakespeare uses the legal expressions (and whether "recondite" or not, they are, certainly, highly technical expressions) "fee simple with fine and recovery." What does Mr. Robertson triumphantly produce as a parallel passage? A quotation from Greene in which, certainly, there is mention of an "action" and of a "plea," and in which, moreover, there is talk of "recovery," viz. the recovery of a debt, and the recovery of costs. And Mr. Robertson would really appear to think that this ordinary use of the word is equivalent to the very technical use of the word "recovery" as used in connection with a "fine"! It would be as much to the point to cite a passage in which a patient is stated to have made a good "recovery" from an illness. But of course the ordinary reader, glancing rapidly through [60] Mr. Robertson’s countless parallels (so called), and knowing nothing of law, or legal terms, thinks that in the multitude of instances there is necessarily wisdom. What does he know of Wharton’s Law Lexicon?

But this is not all in connection with this expression "fine and recovery," so well known to lawyers although both fines and recoveries are now obsolete. I am constrained to ask (though here, again, I speak with bated breath) whether Mr. Robertson, albeit he lectures us on legal terms, is not under a total misapprehension as to the meaning of the word "fine"? I am compelled to put the question in view of the following passage in Mr. Robertson’s work (p. 46): "‘Fine and recovery’ occurs again in the Comedy of Errors (II, 2); and this time we are told that the puns extracted from the terms ‘show the author to be very familiar with some of the most abstruse proceedings in English Jurisprudence.’... ‘Fine,’ as it happens, is a common figure in the drama of Shakespeare’s day. Bellafront in Dekker’s Honest Whore (Part 2, IV, 1) speaks of

From Mall, in Porter’s Two Angry Women of Abington (III, 2), we have:

There is nothing more technical in the Comedy of Errors (my italics).

"Wonderful!" exclaims the reviewer, who, naturally, has not served his apprenticeship to the law. "What learning! What wealth of illustration! Obviously both Dekker and Porter knew quite as much about these technical legal expressions as did Shakespeare." Yet if Mr. Robertson had submitted his proofs to any young [61] law student preparing for his "exam," it would have been pointed out to him that he had been guilty of a ridiculous blunder. "Fine," as used in the expression "fine and recovery," means a method (now obsolete) of transferring land by means of a fictitious lawsuit. It has nothing to do with a money payment. But Mr. Robertson adduces as parallel passages to that cited from The Comedy of Errors lines from Dekker and Porter respectively, where the word "fine" is used in a totally different sense, viz. as meaning the premium on the grant of a lease! No better example could be found of Mr. Robertson’s qualifications for instructing us on the subject of Shakespeare’s knowledge of law.**

Then take the following further "parallel," which Mr. Robertson gives as though to clinch the case: "What, again, shall we say of the passage in Dekker’s Honest Whore (Part 1, IV, 1) in which Hippolito points to the portrait of Infelice as

and Bellafront replies,

Must Dekker too be a lawyer?" (p. 41).

What have we here? The words "obligation," "penalties," and "suit." And having put before the reader these extremely simple expressions, which might, of course, be paralleled in the works of almost any writer of the time, Mr. Robertson asks: "Must Dekker too be a lawyer?" And complacently adds: "The reader has already begun, perhaps, to realise that lawyership is out of the question!" Di Magni, that our time should be wasted by such solemn nonsense!

But a word more on this question, "Must Dekker too [62] be a lawyer?" Here we come, at last, to the consideration of Mr. Robertson’s peculiar method of treating the comparative argument to which I have above alluded. It is as follows. Mr. Robertson takes a passage cited by Lord Campbell, or somebody else, as contributing to the proof of the theory that Shakespeare had more than ordinary knowledge of law, and thereupon cites a passage from some other Elizabethan writer which he conceives to be a parallel to the Shakespearean passage. Frequently it is, as in the cases above examined, no parallel at all. But let us suppose, for the sake of argument, that it is so; let us suppose, for example, that the passage produced from Dekker really contained legal expressions analogous to those used in the passage cited from Shakespeare. What does Mr. Robertson do then? He asks: "Must Dekker too be a lawyer?" But it requires but little consideration to see that this is a fallacious method of reasoning. If, indeed, we were to take one, two, or three passages from Shakespeare in which legal expressions are to be found, and to base upon these instances the hypothesis of his legal knowledge, then it might be open to a critic to take one, two, or three passages from some other writer of that day, in which similar expressions are found, and to ask: "Must he too be a lawyer?" But the real problem is, manifestly, a very different one. Here, if the comparative method is to be used to any purpose, it is incumbent upon him who makes use of it to show that at least some one or two writers of Shakespeare’s time, who had had no legal training, habitually use legal expressions, I do not say necessarily with the same frequency as Shakespeare but, as accurately and appropriately as he uses them; or, in other words, that such writers are comparable with him not only in the quantity but also in the quality of their legal terms and allusions.*** It is [63] obvious, therefore, that to take an instance from Dekker here, and from Greene there, and then another from Ben Jonson, making comparison in each case with some one selected passage from Shakespeare, really gets us no nearer to a satisfactory answer. This consideration appears to me to vitiate the whole of Mr. Robertson’s case. The proper mode of procedure would have been to examine carefully all the Shakespearean Plays and Poems with the view of forming an opinion as to how much legal knowledge Shakespeare may justly be credited withal. If thereupon it could be shown that one or two of his contemporaries, who had no peculiar opportunities of acquiring a special knowledge of law, nevertheless show as much familiarity with, and knowledge of, its terms and doctrines as is shown by Shakespeare, then, indeed, the comparative argument would be entitled to weight as against the theory that Shakespeare had himself received some special legal training. But this Mr. Robertson has not done. On the contrary, he treats us to passages like the following—to give yet another instance: "Out of a score of parallels to such phrases as ‘fee simple’ and ‘fine and recovery’ in other dramatists and writers, it may here suffice to note (i) in Lyly’s Mother Bombie (I, 2),

A good evidence to prove the fee simple of your daughter’s folly;

(2) in the old dialogue or quasi-interlude, Roye’s Rede Me and be not Wrothe (1528), one speaker’s description of the friars as,

and (3) Thomas Nashe’s second prefatory epistle to his Strange News of the Intercepting Certain Letters (1592), [64] where Gabrial Harvey is told that he is ‘here indited for an encroacher upon the fee simple of the Latin.’"†

Here again, Mr. Robertson triumphantly asks, "Are we to pronounce all three writers lawyers?" This strikes me as foolish. No man in his senses would think of making Shakespeare a lawyer on account of one instance of the use of the term "fee simple" (or several instances for the matter of that), nor would anybody out of Bedlam make Lyly, Roye, and Nashe lawyers on the strength of such instances as Mr. Robertson has cited. It is strange that he has not seen the futility of such a method of argument.

Let us take just one other instance. Lord Campbell cites from The Merchant of Venice the lines:

Now the old practice of the Court of the King’s Bench was that when a complaint was made against a person for a "contempt," he was sent into the Crown Office, and being there "charged upon interrogatories," he was made to swear to "answer all things faithfully." But Mr. Robertson omits the third line of the quotation, where these last mentioned words occur, and by way of furnishing us with parallels gives (more suo) several instances of the use of the word "interrogatories" by writers contemporary with Shakespeare, apparently impervious to the fact that the passage cited by Lord Campbell derives whatever strength it has not from the mere occurrence of the word "interrogatory" but the accurate description of the legal practice contained in the words which his lordship has written in italics in the above quotation, a material portion of which Mr. Robertson has omitted. Now opinions may well differ with regard to the value of such a [65] passage as a strand in the evidentiary rope, but, merely to collect passages where the word "interrogatories" occur (even though in one of them we find the common expression "swear me on interrogatories") is entirely beside the mark.

And here I would like to say this further word with regard to Lord Campbell. Mr. Robertson objects to him that he wrote in ignorance of Elizabethan literature generally and was therefore unaware that other writers and dramatists of the time, destitute of special legal knowledge, commonly and habitually made use of legal expressions. This objection may apply to Lord Campbell, but it certainly does not apply to Malone, upon whose authority, as I have already stated, I mainly relied, so far as authority entered into the question; for Malone, as is well known, was widely and deeply read in seventeenth-century literature.

But then, says Mr. Robertson, "the legalist case" proceeds "on the implicit assumption that Shakespeare chronically [sic] vitiates his art by putting in the mouths of lay characters phraseology which only lawyers could understand" (p. 87), the inference being that in Mr. Robertson’s opinion all Shakespeare’s legal allusions are such as could have been easily understood by his audiences generally. Would Shakespeare, he asks, "be likely to put in the mouth of one of his ‘merry wives’ language which to his audience would seem utterly out of character and fit only for an attorney"? The first proposition, therefore, is that to the audience generally the legal allusions and expressions would have been quite intelligible. The second proposition is that if such allusions and expressions were not understood by the audience generally (i.e. though understood, of course, to be legal allusions, not understood in their true and technical meaning) they would have seemed to the audience "utterly out of character and fit only for an [66] attorney." But the second proposition by no means follows from the first. On the one hand, though the audience failed properly to understand the allusions, such allusions might nevertheless (in days when admittedly law terms were more popular in ordinary life and conversation than they are now) have seemed, if not quite natural, at any rate not a whit objectionable, and certainly not "utterly out of character," or "fit only for an attorney." On the other hand, even if we were to assume that the audience thoroughly understood these legal allusions, it does not follow that those among them who were inclined to be critical might not think them very doubtful art.

But who were Shakespeare’s audiences, and of what sort of people were they composed? The question has always appeared to me a difficult one. Of course, when plays were acted, as Shakespeare’s plays frequently were, at royal palaces, such as Greenwich, or stately mansions, such as Wilton, or at one of the Inns of Court—in the Middle Temple Hall, for instance—they would be seen by men of learning and culture who might well be able, for the most part, to understand the legal allusions. But at the public theatres, if indeed we have true descriptions of them in such books as Taine’s English Literature, for example, the case would be very different. "The theatres," he writes, "were great and rude contrivances, awkward in their construction, barbarous in their appointments, open to the sky as to the pit, admittance to which was one penny. If it rained . . . the people in the pit, butchers, mercers, bakers, sailors, apprentices, received the streaming rain on their heads . . . while waiting for the piece, they amuse themselves after their fashion, drink beer, crack nuts, eat fruit, howl, and now and then resort to fists . . . when the beer took effect, there was a great upturned barrel in the pit, a peculiar receptacle for general use. The smell rises and then comes the cry, ‘Burn the juniper’! They burn some in a plate on the stage and the [67] heavy smoke fills the air," etc. etc. etc. It is difficult to conceive of a play like Hamlet or Lear being acted in such a theatre before such an audience. But, if Shakespeare’s dramas were played at the public theatres, would anyone really contend that the "groundlings," and "stinkards," and the audience generally, must necessarily have been able to understand all the legal expressions used in those dramas—or, for the matter of that, in the plays of Ben Jonson, or other dramatists of the time? That is a proposition which appears to me to have very little reason or probability to commend it. I believe, on the contrary, singular as it may appear, that a considerable part of the dramas of that day could not be generally "understanded of the people." Will it be contended that the audience generally were able to understand the Latin quotations with which some Elizabethan writers were so fond of embellishing their plays? Take a popular drama such as Kyd’s Spanish Tragedy, for example. Act XI, Scene 5, concludes with fourteen Latin hexameters, and there are many others throughout the play. Am I to be told that the audience generally in those days, at the public theatres, understood and appreciated these Latin lines? Why, the majority of them, I apprehend, could neither read nor write! But many people, as we know, are highly pleased with things that they cannot altogether understand, and the "groundlings" and "stinkards" were, doubtless, highly impressed by the Latin, French, or Italian quotations introduced by the dramatists.

On the whole, then, this argument of Mr. Robertson’s, that Shakespeare’s legal allusions and expressions, so far from being evidentiary of any special legal knowledge, must have been quite plain and intelligible to the audience generally, appears to me altogether untenable.†† [68]

Let us take another sample of Mr. Robertson’s style of criticism. Lord Campbell cites a passage from The Winter’s Tale in which Hermione refers to an antiquated "piece of English law procedure," viz. "that whether guilty or innocent, the prisoner was liable to pay a fee oft his liberation." This, says his lordship, "could hardly be known to any except lawyers, or those who had themselves actually been in prison on a criminal charge." Now that Lord Campbell herein shows very little wisdom I should be the first to admit. Mr. Robertson, naturally, holds up this supposed item of proof to scorn and ridicule. He then comments as follows: "If Lord Campbell and Mr. Greenwood had but handled this case as they would have done [sic] a legal one, and taken a little trouble to discover precedents, they or their readers [69] might have been saved the construction and demolition of a legal house of cards." Hereby Mr. Robertson, inferentially, gives his readers to suppose that I had made special and approving reference to this particular passage in Lord Campbell’s book, the truth being that I had merely quoted his opinion, among others, as to Shakespeare’s alleged legal knowledge. Mr. Robertson cannot really think that by quoting his lordship’s opinion in support of a general proposition I thereby endorse every particular argument by which he essays to make it good.

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* Work cited, p. 41. back

** One reviewer, at any rate, had detected this absurd error. See article headed "Bacon and the Bard" in The Literary Guide for June 1st, 1913. back

*** An American lawyer, Mr. Franklin Fiske Heard, writes: "There can be no doubt that legal expressions are more frequent, and are used with more precision in his [Shakespeare's] writings than in those of any other dramatic author of the period" (Shakespeare as a Lawyer, p. 11). This is, of course, the question at issue. back

† Work cited, p. 44. back

†† Lord Campbell quoting Hamlet's speech "on taking in his hand what he supposed might be the skull of a lawyer," says: "These terms of art are all used seemingly with a full knowledge of their import; and it would puzzle some practising barristers with whom I am acquainted to go over the whole seriatim and to define each of them satisfactorily." Whereupon Mr. Robertson comments (p. 79): "So that Shakespeare, once more, is inartistic enough to put in the mouth of a prince a string of law terms which a Victorian barrister would be hard put to it to define." The argument, therefore, may be put in the form of a syllogism:

But, in the first place, I would remark that Mr. Robertson makes a false point by laying stress on his "Victorian barrister," because the terms used by Hamlet, such as "double vouchers" and "recoveries" (e.g.), had become practically obsolete before Victorian days, and therefore barristers of that day, or this, might well be unable to define them. And, secondly, Mr. Robertson finds no difficulty in admitting that Shakespeare may be "inartistic" when he hath a mind. With regard to Measure for Measure, for example, he sees that in altering the old plot of Promos and Cassandra, "by positing a precontract between Claudio and Julia the recast 'takes all the point out of the story,'" as Mr. Castle says, "so that in reality there is no motive left for the play," because, as he writes, "the case of Julia and Claudio is (thus) on all fours with the case of Mariana and Angelo, in which the Duke, after treating Claudio as liable for the same thing to capital punishment, plans the intercourse of the precontracted persons." This is "inartistic" enough in all conscience, so inartistic in fact that Mr. Robertson thinks a lawyer could not have been guilty of it. (Work cited, p. 134.) back