"Shakespeare's Legal Knowledge" – Part 4

Again, Lord Campbell makes reference to the fact that Falstaff talks of "the wearing out of six fashions, which is four terms or two actions." This, again, may have very little value as evidence of Shakespeare’s familiarity with "the mysteries of terms and actions," but it will be obvious to any reader who will pause to reflect that what value it has (if any) is really not impaired by merely citing, as does Mr. Robertson, passages in which the word "term," or "term-time," occur in other authors of that day. The inference raised by Falstaff’s words is, as Lord Campbell puts it, "that in Shakespeare’s time, final judgment was obtained in an action of debt in the second term after the writ commencing it was sued out; and as there are four terms in the legal year—Michaelmas Term, Hilary Term, Easter Term, and Trinity Term—this is a legal circumlocution for a twelvemonth." I repeat this may have very little weight with reference to the "legal" argument, but to cite passages in proof of the proposition that "the ‘terms’ of the law-courts were then a normal way of dividing time," seems to me altogether beside the point.

I am not concerned to pursue Mr. Robertson’s criticisms on Lord Campbell at any further length, and it would be waste of time to do so.* [70]

Mr. Grant White and others have laid some stress upon Shakespeare’s use of the word "purchase" in its legal sense, viz. the acquisition of land by means other than by descent or inheritance. Mr. Robertson, however, tells us that there is no "legal" sense of the word: "There was no more a ‘legal’ sense of the term ‘purchase’ than there was or is of the term ‘property’ or ‘obtain’: the law simply discriminated on legal lines, between right and wrong modes of ‘purchase.’"** In support of this proposition he covers some ten pages with instances of the use of the word in what he tells us was its "original meaning," viz. "acquisition of property by one’s personal action as distinct from inheritance." The "so-called ‘legal’ meaning," therefore, "is the original meaning, and is the likely sense of the word in the whole feudal period"; for "the philological fact is that the sense of ‘acquisition’ or ‘thing got,’ is the fundamental meaning of the word ‘purchase,’ of which the starting-point is the idea of the chase (Fr. pourchasser), the product of hunting or foraging."

Now it seems to me that Mr. Robertson might well have spared himself all this labour and trouble—that he has really been wasting his time in order to demonstrate to us, with great parade of learning, that which [71] was perfectly well known even among the lawyers who supposed that there is a special "legal" sense in which the term "purchase" is sometimes used by Shakespeare, and many other writers also. I have before me a little book called Shakespeare as a Lawyer, by Franklin Fiske Heard (1883). Mr. Heard was, I believe, an American lawyer, and this is how he writes concerning the word "purchase": "The word purchase, in its common and confined acceptation, is now applied only to such acquisitions of land as are obtained by way of bargain and sale for money, or other valuable consideration. But much oftener in our old writers simply to acquire, being properly to hunt; and then to take in hunting; and then, as the commonest way of acquiring is by giving money in exchange, to buy." He then quotes Lord Bacon: "And therefore true consideration of estate can hardly find what to reject, in matter of territory, in any empire, except it be some glorious acquests obtained sometime in the bravery of wars, which cannot be kept without excessive charge and trouble; of which kind were the purchases of King Henry VIII, that of Tournay and that of Bologne." In these few words Mr. Heard had already told us, many years ago, practically all that Mr. Robertson has told us once more with such terrible prolixity. Mr. Robertson writes: "I will simply clear the matter up by citing many instances of the use of the quasi-legal use [sic] of the word in other writers and dramatists, noting that it is frequently applied in the sense of ‘booty’ or plunder." A lawyer may here remind Mr. Robertson that the law does not allow "a use upon a use," and that literature might well follow law in this respect! But I pass that little matter over as only one more of the very numerous proofs of the haste in which Mr. Robertson’s magnum opus was put together. All that concerns me now is to show, as I have done, by the above quotation from Mr. Heard’s [72] book, that the original meaning, of the word "purchase," viz. to "acquire," was perfectly well known, and stood in no need of demonstration "by citing many instances."

But is it true, then, that there is no "legal" sense of the term "purchase," as Mr. Robertson tells us? I opine that it is not true. As we have seen, Mr. Robertson writes, "the so-called ‘legal’ meaning of ‘acquisition of property by one’s personal action as distinct from inheritance’ is the original meaning." I do not know whence he takes his quotation giving a definition of the legal meaning. Whence has he taken the words "by one’s personal action"? It seems to me clear that they should be omitted from the definition. For if someone were to give me real estate, I could hardly be said to have acquired it by my "personal action," yet in the eye of the law I should be a "purchaser." Let me quote Mr. Heard once more. "In its legal acceptation, ‘to purchase’ is to acquire real estate by means other than by descent or inheritance. If one gives land freely to another, he is, in the eye of the law, a purchaser. A man who has his father’s estate settled upon him in tail, before he was born, is also a purchaser [not much "personal action" here!] And even if the ancestor devises his estate to his heir-at-law by will, with other limitations, or in any other shape, than the course of descents would direct, such heir takes by purchase. In Antony and Cleopatra the word is used in its legal sense. Lepidus, in palliating the faults of ‘a man who is the abstract of all faults,’ says,

Indeed, it is rather strange for one who has in days gone by spent more or less weary hours over "the Tables of Descent," in Stephen’s Commentaries, or Williams’s "Real Property," and remembers how often, on the failure of a [73] particular line of descent, one had to go back to "Benjamin Brown the Purchaser," and begin again, to be told that there is no special legal sense in the term "purchase," and that "the law simply discriminated, on legal lines, between right and wrong modes of ‘purchase.’" But, as I have shown, this is not a true statement, for "purchaser" in its legal sense includes not only those who have acquired land by "personal action as distinct from inheritance," but also, as we have seen, those who have received land as a gift, or upon whom it has been settled before they were born, and even heirs-at-law, who would otherwise have inherited, if they take by a devise not in accordance with "the course of descents." Here then is a special legal meaning which would not be included in the ordinary "original meaning," and that Shakespeare uses the word in this special legal sense in the passage quoted from Antony and Cleopatra cannot, surely, be doubted, though whether or not such usage of the word here and in other places has much weight with regard to the question of Shakespeare’s alleged legal knowledge I do not now stop to inquire.*** [74]

I may here pause to consider some curious remarks made by Mr. Robertson concerning John Shakespeare, the father of William (neither father nor son called himself "Shakespeare," but let that pass). Referring to the "fashion of lawyerism" in the seventeenth century, Mr. Robertson writes (p. 145): "In respect of the state of society in which this was a normal experience it is hardly necessary to prove that Shakespeare had any special inducement in youth to take an interest in legal procedure. But, as it happened, he had. It is generally known, and the legalists might have been expected to remember [my italics] that Shakespeare’s father was a man of many law-suits. But nowhere in connection with this question, I think, has note been taken of the extent and significance of that experience in the Shakespearian household. It has been left to a clerical writer—partly bent on proving the quite "arguable thesis that John Shakespeare was a Puritan recusant, partly on pressing the fantastic one that William Shakespeare was a profound Biblical student—to bring out the full force of the evidence as to the father’s manifold experience of law courts. The summary is that ‘He was one of the most litigious of men. . . . From July, 2 Philip and Mary, to March, 37 Elizabeth, there are no less than 67 entries of cases in which his name appears on one side or the other; and some of his actions are with his best friends, as Adrian Quiney, Francis Herbage, Thomas Knight, and Roger Sadler; but in 1591 there is only one entry, wherein John Shakespeare sued as plaintiff in a debt recovery action and won with costs."† [75]

Now what were all these law-suits in which John Shakespeare was engaged, either as plaintiff or defendant? Well, there was a Court of Record at Stratford-on-Avon which seems to have been mainly made use of as a Court for the collection of small debts. That, at any rate, was its chief function, and we find that, almost without exception, these suits in which John Shakespeare was from to time involved were actions in placito debiti, i.e. actions for debt.†† And it is these miserable pettifogging actions, mostly involving very small sums of money, which are supposed to have given the young William Shakespeare his taste for and knowledge of the law of England as it was in his day.††† Mr. Robertson says that such actions bring home to us "the normality of litigation in Stratford as in Elizabethan England in general." They certainly bring home to us what sort of folk these petty tradesmen of Stratford were, and throw light upon their "early-rising-sad- litigious-base-informing-plaguey-ways." Evidently a huckstering, disputatious, and not very well conditioned bourgeoisie. Mr. Robertson also says these actions further show "the abundant share of the Shakespeares in legal experience." Well, yes, of a kind! One can get the same experience today, only of a very much better sort, in the White chapel County Court.‡ [76]

But there is yet something more, it seems, to be got from the "noteworthy record" of John Shakespeare’s law-suits. There is a Court entry of November, 1585, to the effect that a distraint should be issued against John Shakespeare to satisfy the judgment in one of these small actions for debt, and this is followed, on January 19th, 1586, by another entry to the effect that John Shakespeare had no goods on which to distrain, so a writ of "capias" was directed to issue against the said John Shakespeare at the suit of John Browne, if John Browne should so require. Now it has been generally thought, and not unnaturally, that the fact that John Shakespeare was returned as having no goods upon which to distrain is a proof that he was in "reduced circumstances" at that time. Not at all, says the Rev. Thomas Carter. "The poverty theorists," indeed, say the "capias" was issued against John "because he is a penniless man; having no property he could not be distrained upon." But, adds the reverend gentleman, "he had landed property, as the Exchequer Returns show" (p. 202). I fear the author of Shakespeare: Puritan and Recusant had forgotten the form of the precept or warrant issued to the Sergeants at Mace of which he gives us a copy at p. 31: "Preceptum est servientibus ad clavam quod distringatis, seu unus‡‡ vestrum distringat, Johannem Shakespere per omnia bona et cattalla sua." Only "goods and chattels" could be taken under the [77] distraint, and as the return was that he had no property upon which a distress could be levied, it seems natural to suppose that such was the case. Mr. Robertson, however, following the Rev. T. Carter, thinks the fact was otherwise, and that John Shakespeare was all the time a man of means, and "was simply baffling the suit against him," in some unexplained manner. The matter is obviously important, because the supposition had hitherto been that the generally accepted tradition, as handed down to us by Rowe and others, to the effect that William Shakespeare had to be taken from school at the age of thirteen on account of his father’s embarrassed circumstances, was a true statement of the case. But, as Mr. Robertson observes, "among other things the theory that the boy William had to leave school at thirteen because of his father’s pecuniary embarrassments is obviously put in doubt" by the Rev. Thomas Carter’s hypothesis, and if William was not taken from school at thirteen he might have learned a good deal more there, which would, of course, be mighty convenient. And all this will follow if only we will adopt the theory that John Shakespeare was a Puritan recusant. In that case, "the whole episode of" his "finings, and the disqualification consequent on his non-attendance at the Council, was simply a matter of his recusancy," which Mr. Robertson thinks quite a reasonable proposition; though why John Shakespeare should be returned as having "no distrainable property" simply "because he was a recusant" passes my poor comprehension. But the truth is that Mr. Carter’s theory is mere hypothesis and there does not seem to be a tittle of evidence to support it. On the contrary, as Sir Sidney Lee writes (p. 10 n.), "the circumstance that he [John Shakespeare] was the first bailiff to encourage actors to visit Stratford is conclusive proof that his religion was not that of the contemporary puritan, whose hostility to all forms of dramatic representations [78] was one of his most persistent characteristics. The Elizabethan puritans too . . . regarded coat-armour with abhorrence, yet John Shakespeare with his son made persistent application to the College of Arms for a grant of arms." It is plain that Mr. Robertson has taken under his patronage "a fond thing vainly invented." But the motive is obvious.‡‡‡

I have already dealt with the case of parson Adams adduced by "Mr. Judge Willis," and shown how Mr. Robertson has, more suo, met my reply by suppressing the most material portion of it. I now come to the sad case of Mr. Robertson’s guide, philosopher, and friend in legal matters, to wit one Mr. William C. Devecmon, A.M. of the Maryland Bar, who in the year 1899 published a book called In re Shakespeare’s "Legal Acquirements." Mr. Robertson in his work Did Shakespeare Write Titus Andronicus? had cited this writer to the effect that in Webster’s play The Devil’s Law Case there are "more legal expressions (some of them highly technical and all correctly used) than are to be found in any single one of Shakespeare’s works." To this I replied (The Shakespeare Problem Restated, p. 397) that, the subject of Webster’s play being a "law case," the work was, naturally and inevitably, full of expressions borrowed from legal terminology, but that Mr. Devecmon’s statement that this play contained "more legal expressions than are to be found in any one of Shakespeare’s works," that some of these legal expressions are highly technical, and all of them correctly used," is not only not true, but so preposterously contrary to the truth that one can hardly believe that Mr. Devecmon had read the drama [79] in question." I went on to say: "There is, incredible as it may sound, practically no law at all in Webster’s play! There are, indeed, a few legal terms, such as ‘livery and seisin,’ ‘a caveat,’ ‘tenements,’ ‘executors,’ thrown in here and there, and there is an absurd travesty of a trial where each and everybody—judge, counsel, witness or spectator—seems to put in a word or two just as it pleases him." Then, after again quoting Mr. Devecmon’s words, I wrote that his statement "is an astounding perversion of the fact, as any reader can see who chooses to peruse Webster’s not very delicate drama"; and I added, "I cannot but think that Mr. Robertson had either not read the play, or had forgotten it when he quoted this amazing passage."

Upon this Mr. Robertson now writes (p. 157): "I am quite willing to stake the entire question upon this issue." Presuming that by "the entire question" he means the question whether or not Shakespeare’s works (Plays and Poems) show, as a whole, and speaking generally, more knowledge of law than the works of other poets and dramatists, his contemporaries, for whom we are not justified in assuming any special legal training or opportunity for acquiring legal knowledge, I am quite content to accept this challenge. I repeat that The Devil’s Law Case shows no knowledge of law whatever on the part of its author. On the contrary, one might be astonished that in a play the subject of which is a "law case" there should be such a dearth of anything that a lawyer can recognise as "law," were it not for the fact that the whole thing is, of course, in the nature of an extravaganza. A clever writer like Webster, if he had been seriously engaged in writing a legal drama, would no doubt have got up his law beforehand, and in that case we might, certainly, have been treated to many "legal expressions, some of them highly technical and all correctly used." As it is, considering the nature of [80] the play in question, it is not surprising that such expressions are conspicuous by their absence.

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* I will make Mr. Robertson the present of a criticism with regard to one of Lord Campbell's observations which has altogether escaped him. Edmund, in Lear, says: "If I find him comforting the King, I will stuff his suspicion more fully." Upon this, says Mr. Robertson (p. 77), "we are duly reminded [by Lord Campbell] that 'comforting' is the term used in 'the indictment against an accessory after the fact, for treason.'" Whereupon Mr. Robertson comments: "The Lord Chancellor would appear to have been unaware that the word is used in indictments after the fact [sic] for lesser crimes than treason!" I do not know what is meant by "indictments after the fact," but the really appropriate comment on Lord Campbell's remark is that he appears to have forgotten, very strangely, that there are no accessories in treason, all being principals in the eye of the law! Mr. Robertson would not perhaps have learned this during his four and a half years in a Scotch law office, but he must, surely, have read the trial of Alice Lyle in Macaulay's History, where he would find the law correctly stated (History of England, 1854, Vol. I, p. 634). back

** Work cited, p. 99. back

*** Mr. Robertson quotes from my book a passage cited by me from Mr. Grant White: "Take the word 'purchase,' for instance, which in ordinary use means to acquire by giving value, but applies in law to all legal modes of obtaining property, except by inheritance or descent, and in this peculiar sense the word occurs five times in Shakespeare's thirty-four plays, and only in one single instance in the fifty-four plays of Beaumont and Fletcher." On this Mr. Robertson comments: "By the definition 'legal modes of obtaining property,' the critic merely obscures the fact that the term covered all modes of acquisition save inheritance. There was no more a 'legal' sense of the term 'purchase' than there was or is of the term 'property' or I obtain'; the law simply discriminated on legal lines, between right and wrong modes of 'purchase.' To pick out cases in the plays in which 'purchase' means lawful acquisition is thus pure mystification." I think it is obvious, however, that by "legal modes of obtaining property" Mr. White did not mean "lawful modes," but the various modes recognised by law of acquiring real property, other than inheritance, as by gift, or such other means as those to which I have already referred. Mr. Robertson, by the way, commenting upon Heywood's frequent use of the word "purchase," says: "For Heywood in fact, 'purchase' normally means acquisition otherwise than by inheritance or buying." But "buying" does not necessarily mean buying for money or even for goods. One may buy (or purchase) things with labour, service, tears, entreaties, etc. And Heywood, it hardly needs to be said, frequently uses the word "purchase" to mean "buying" in this sense. back

† The reference is to Shakespeare: Puritan and Recusant, by the Rev. T. Carter, 1897, p. 166. back

†† As to the Stratford Court of Record, see Note A at the end of this chapter. back

††† One of the actions was in "case." John Shakespeare was sued by Nicholas Lane, who claimed that he, the defendant, had made himself surety for £10, part of a debt of £22 owed to the plaintiff by Henry Shakespeare, the defendant's brother. The plea represents John as "machinans callide et deceptive decipere et defraudare dictam sommam decem librarum." What a magnificent legal education such actions must have provided, and how they must have aroused the interest of the youthful poet! back

‡ Mr. Devecmon (of whom more presently) speaking of the butchers, bakers, candlestick-makers, "glovers," etc., of Stratford-on-Avon, which he describes as a "little provincial town having at that time about 1800 inhabitants, with little or no commerce or intercourse with the outside world," writes as follows: "It may well be imagined that the greater part of the male population of Stratford was in constant attendance at the Sessions of the Court [listening to petty law-suits in placito debiti]; that the arguments of the lawyers [i.e. the attorneys], the verdicts of the juries, and the judgments of the court, were in the long evenings rehashed over and over again by these worthies of Stratford in the midst of their potations of home-brewed ale, in the love of which they excelled no less than in the love of litigation, there being at the time about thirty alehouses in the town." Can one imagine a better training than this for the world's greatest poet in the days of his youth? It might be mentioned that there was a court of pie poudre at Stratford also! back

‡‡ Not "unum," as printed in Mr. Carter's book. back

‡‡‡ Another reverend gentleman, viz. the Rev. Richard Davies, writing towards the end of the seventeenth century, says of William Shakespeare that he "died a Papist." If so, he was apparently more interested in his father's law-suits than in his father's religion! But there seems no evidence at all either of the father's Puritanism or of the son's Papistry. back