"Shakespeare's Legal Knowledge" – Part 5

Here I must advert to what seems to me a very naïve observation made by Mr. Robertson with reference to the works of playwrights contemporary with Shakespeare, viz. "Where Shakespeare merely uses legal phrases, as often as not metaphorically, the other dramatists introduce actual matters of litigation." My comment here is: "Exactly so." When "the other dramatists" introduce "actual matters of litigation," they, as a natural and inevitable consequence, introduce also legal terms and expressions, more or less correctly used. The contention with regard to Shakespeare is that he introduces such expressions (whether "metaphorically" or otherwise) where there is no necessity for them, and sometimes where they seem not a little out of place, or even "inartistic,"—pace Mr. Robertson. A man who puts on the stage "matters of actual litigation" must talk law as well as he can, and, doubtless, if a clever man, though no lawyer, he can get up his law well enough to avoid making many mistakes, or he may get a lawyer friend to help him. But the man who is himself a lawyer, or who has had some legal training, is frequently apt to bring in legal phrases and expression, maxims and metaphors, on occasions when they would not suggest themselves to an ordinary layman, or where he might think them actually mal à propos.

With regard to The Devil’s Law Case, Mr. Robertson says that I "might have taken the trouble to collate the legal references" in that play, which he thinks "would have been more to the purpose than any amount of simple asseveration, however emphatic." In the latter observation I quite agree, and am delighted to find that Mr. Robertson has himself culled from Webster’s drama passages which he conceives are sufficient to make good Mr. Devecmon’s proposition. Let us examine them: [81]

ACT I, SCENE 1

ROMELIO. He makes his colour
Of visiting us so often, to sell land.

CONTARINO. The evidence of the piece of land
I motion’d to you for the sale.

LEONORA. To settle your estate.

Here we actually have "colour," "sell," "land," "evidence," "sale"! These Mr. Robertson, apparently, considers to be "legal expressions, some of them highly technical, and all correctly used." I forbear to comment. It is obviously unnecessary. Let us proceed:

ACT I, SCENE 2

JOLENTA. Do you serve process on me?

ROM. Keep your possession, you have the door by the ring. That’s livery and seisin in England.

ERCOLE. To settle her a jointure.

JOLENTA. To make you a deed of gift.

WINIFRED. Yes, but the devil would fain put in for’s share
In likeness of a separation.

CONTARINO. You have delivered him guiltless.

Here we have "livery and seisin," certainly terms taken from the law (for was not land conveyed by "livery of seisin"?), and "jointure." There’s "law" for you! Perhaps "devil" is a law term also, for have we not all heard of "the Attorney-General’s devil"!

Revenons à nos moutons.

ACT II, SCENE 1

JULIO. Any action that is but accessory.

CRISPIANO. One that compounds quarrels.

ERCOLE. Your warrant must be mighty.

CONTARINO. has a seal
From heaven to do it. [82]

Mr. Robertson says he doubts whether Lord Campbell can be serious. But can Mr. Robertson himself be serious when he quotes such stuff in support of Mr. Devecmon’s amazing proposition? The words attributed to Julio are, most decidedly, not suggestive of legal knowledge. As to "compound quarrels" (Webster’s words here, by the way, are "one that persuades men to peace, and compounds quarrels among his neighbours, without going to law"), if anyone were to be guilty of the ineptitude of asserting that this is a legal expression, I would beg to refer him to my footnote 2 at p. 405 of The Shakespeare Problem Restated, and I might, further, refer him to Mr. Devecmon himself at p. 35. To compound, of course, simply means to settle or determine, as in the great classical example, tantas componere lites.

But perhaps Mr. Robertson relies upon "warrant" and "seal." "Highly technical expressions" these, and quite "correctly used"! It really seems useless to continue the quotations. The reader can refer for himself to Mr. Robertson’s work. In Act II, Scene 3, we have mention of the words "interrogatory" and "supersedeas." In Act II, Scene 4, "The law will strictly prosecute his life." In Act III, Scene 2, we read, "He has made a will and deputed Jolenta his heir." Is that supposed to be indicative of a lawyer? Then occur these words:

Here we have the very expression used by Mr. Robertson upon which I ventured the comment that he thereby makes known to us that he is not a lawyer, inasmuch as a lawyer would say "enter a caveat." I do not say, therefore, that Webster could not have been a lawyer (although, as we know, he was not), because a lawyer dramatist may well put into the mouth of non-legal characters expressions which students of the law would not employ. But to cite "put in a strong caveat" as a technical expression [83] correctly used is strange indeed. The other passages cited by Mr. Robertson are all of the same kind, though, if possible, weaker.

He then proceeds to quote a number of "legal allusions" from Appius and Virginia, another of Webster’s plays. Here are some of them:

First, the charge of her husband’s funeral, next debts and legacies, and lastly the reversion.

The term-time is the mutton-manger in the whole calendar.
Do your lawyers eat any salads with their mutton?

Deny me justice absolutely, rather
Than feed me with delays.

Having compounded with his creditors
For the third moiety.

Your reverence to the judge, good brother.

May it please your reverend lordships.

Now the question,
(With favour of the bench) I will make plain
In two words only without circumstance.

If that your claim be just, how happens it
That you have discontinued it the space
Of fourteen year?

And so forth, and so forth.

I am really at a loss to know how to characterise these extraordinary citations. Mr. Robertson seems to imagine that any passage which contains any expression known to the law or even remotely connected with it, however common and familiar to all, may be cited as a "legal allusion"! Unconsciously he has proved my proposition up to the hilt: "There is, practically, no law at all in Webster’s play." There are, indeed, as I also wrote, some legal terms, thrown in as from a peppermill, but surprisingly little of these, seeing that the play is founded on a supposed "law case."

But perhaps Mr. Robertson will reply, "There is, at [84] any rate, no more law in any one of Shakespeare’s plays than there is in this play of Webster’s." If that assertion be true, then I admit "there is no law at all" in Shakespeare. But is it true? I am quite content to leave the answer to that question to any student of Shakespeare who has at least enough elementary knowledge of law to be competent to express an opinion.

Mr. Robertson accuses me of having "blamed Mr. Devecmon in error." Let us see how he sets about to prove this.*

I cited Devecmon as quoting Senator Davis to the effect that "Antony in speaking of the real estate left by Caesar to the Roman people does not use the appropriate word ‘devise.’"** Upon this I commented "that Shakespeare here was just transcribing, more suo, from North’s Plutarch, ‘He left his gardens and arbours unto the people, which he had on this side of the river Tiber,’ and he did not, as a dramatist, think it necessary, nor was he so absurdly pedantic as to alter these words in order to make Antony use the technically correct legal expression." I then added the following words: "Ah! but then, says the critic, ‘it was also unnecessary for Caesar’s will to have contained the expression to your heirs for ever, in order to give the people a perpetual estate in the realty.’" Upon this further objection, raised by Senator Davis, in the passage quoted by Devecmon, I wrote: "Really, really! This is just a little irritating. Shakespeare does not say that the will did contain those words; Antony is telling the people the effect of the will. To pray in aid these words, ‘and to your heirs for ever,’ used with excellent dramatic effect, as though they upheld the proposition that Shakespeare was no lawyer, is merely an argument fit only for the least intelligent of readers." How then have I "blamed Mr. Devecmon in error"? [85] Why, says Mr. Robertson, "the critic" must mean Devecmon, "but the offence comes from Senator Davis, who affirms in general the profundity and accuracy of Shakespeare’s legal knowledge, not Mr. Devecmon who denies it!"

But, with great respect, Mr. Robertson is entirely wrong. "The critic" refers to Senator Davis; but although "the offence comes" from him in the first instance, it is shared by Mr. Devecmon who here quotes Davis with approval in order to argue [very absurdly] that Shakespeare was, in this instance, guilty of "bad law."

"And only thirty pages earlier," writes Mr. Robertson with an air of triumph, "Mr. Greenwood had cited this very Senator Davis [original italics] as one giving weighty testimony to Shakespeare’s command of a legal vocabulary in which ‘no legal solecisms will be found.’" Mr. Robertson thus gives us proof that he is not above condescending to the fallacy that because one cites an author’s opinion in support of a general proposition one is bound by all the arguments advanced by him. I quoted Senator Davis’s opinion, with others, for what it is worth, on the legal knowledge of which it is alleged proof can be found in the works of Shakespeare. I certainly am not therefore bound to follow Senator Davis (or Devecmon who here follows him) in his very absurd criticism of Antony’s celebrated speech.

But the fact is—and it is mainly for this reason that I again refer to the passage in Mr. Devecmon’s work—that both Senator Davis, and Devecmon who cites him, are wrong in thinking that the word "devise" was the technically appropriate word to denote testamentary gifts of real estate in Shakespeare’s day. The law and custom as to wills in those times was much laxer than it is now, and, as Mr. Rushton writes, "Although the word devise is now applied by Real Property lawyers to real property, and the word bequeath to personal property, yet such [86] distinction was riot made in Shakespeare’s time… in Shakespeare’s time the use of the word devise in a Will in disposing of real property, or the omitting to use that word in disposing of the personal property, or even the use of the word bequeath in disposing of the personal property, or the omitting to use the word bequeath in disposing of the real property, would afford no evidence of technical skill, nor would the application of the word devise to personal property, or of the word bequeath to real property, afford evidence of a want of technical skill; because the few quotations I have made, from the old law writers, prove that before, during, and after Shakespeare’s day, the words devise and bequeath were applied in differently to both real and personal property."***

In the face of this it appears doubly ridiculous to find fault with Shakespeare for making Antony say to the assembled crowd, "He hath left you all his walks," because, forsooth, he has not used "the appropriate word ‘devise’"!

As for Senator Davis, as I have already said, I quoted his opinion amongst others. What it is worth I do not pretend to say. I will make Mr. Robertson a present of "this very Senator Davis" if he likes, or

But as to Mr. Devecmon, I repeat all that I before said concerning that gentleman’s law, and I am quite certain that any "open-minded lawyer," provided he be also a competent lawyer, will bear me out in every word of it.† [87] And here Mr. Robertson brings us back again to one of the objections raised by Mr. Devecmon to Shakespeare’s law—a particularly ridiculous one as it seems to me. Queen Catherine, in Henry VIII, Act II, Scene 4, says to Wolsey:

Whereupon says the learned Mr. Devecmon: "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." Now I maintain, with entire confidence, that anyone who can argue from this use by Shakespeare (if indeed Shakespeare, and not Fletcher, wrote this passage) of the [88] word "challenge" that the writer of the play could not have had a legal training, is what Mr. Bumble said the law is. "Challenge," as I wrote before, was constantly used in the sense of "objection," and "even though the poet might have had the legal significance in his mind, it certainly does not argue the absence of legal training on his part that Catherine should apply, by a very natural analogy, to one of the Cardinals who were to act as judges in the case, a term which, in strict legal usage, was properly applicable only to a juror." I further commented on the curious idea "that a dramatist cannot be a lawyer unless he makes his ladies and laymen speak in the language that a trained lawyer would employ." What is Mr. Robertson’s triumphal criticism on this? He appears to be smarting under the sting of my indexer’s unfortunate note, "Robertson, J. M., betrays his ignorance of law." It evidently rankles:

"But," says he, "let Mr. Greenwood’s and the indexer’s judgment stand; what then becomes of Mr. Greenwood’s attempted rebuttal of Mr. Devecmon? He really cannot have it both ways. If he insists that no lawyer would say ‘put a caveat,’ he has quashed his own objection to the argument that Shakespeare makes his characters talk law as no lawyer would. He does not deny that Shakespeare makes Queen Catherine ‘challenge’ a judge, as lawyers ‘challenge’ jurors. Then Shakespeare was no lawyer. It is idle for Mr. Greenwood to say that ‘challenge’ was used in a general sense. What about ‘caveat’?"

Once more I am at a loss how to characterise this sample of Robertsonian argument. Shall I pay Mr. Robertson the compliment of imitating him, and talk of its "naked insanity"? Nay, I will use language more restrained, and only say that this seems to me, on the [89] whole, about the silliest piece of criticism that I have come upon in the whole of this wearisome "Shakespearean" controversy. Shakespeare, as I have explained, even though he had himself been Lord Chancellor might well, as a dramatist, put the word "challenge" into the mouth of a Queen, and make her apply it to one of the two Cardinals who were to try her case.†† To draw from that the inference that the author of the play could not have been possessed of legal knowledge is, I wrote, "an argument fit only for the least intelligent of readers." But, cries Mr. Robertson, if a lawyer might write "challenge" of a judge, why should not he also write it put a caveat? You "really cannot have it both ways" You have "quashed your own objection"! Dear, dear! What a terrible dilemma! Yet I think the answer is tolerably simple. A lawyer writing not as a dramatist but in his own personal capacity would not write "put a caveat," because his training has taught him that "enter a caveat" is the proper legal expression; but if he were, as a dramatist, to bring a layman on the scene, one without legal training—shall we say a politician who had spent four and a half years in a Scotch law office, but had given preferential treatment to literature?—he might well make him use the words which Webster puts into the mouth of Romelio, viz. "put (or "put in") a caveat"! Webster, as it happens, was no lawyer, but these words so used do not of themselves prove that he had no legal knowledge.

And here let me commend to Mr. Robertson’s consideration words which I have recently lighted upon in a little book entitled Was Shakespeare a Lawyer? by a [90] barrister who contents himself with the initials "H. T." Shakespeare, writes this author (p. 4), shows that he was well acquainted with law, because "when he allows any of his characters to speak law, they not being professional lawyers, he makes them talk nonsense. In this he evinces a professional pride—a sentiment which is common to men of all professions; hence non-professionals are allowed to lay down bad law and to misuse legal words. On the contrary, when his lawyers speak, their doctrine is always sound, and their technical terms are correct."

This criticism well illustrates the point I have endeavoured to make clear. A lawyer writing in his own personal capacity will use correct legal terms. A lawyer dramatist will make legal characters use correct legal terms; but, if he is a skilful and artistic dramatist, he certainly will not make his lay characters speak in the technical language of the trained lawyer.

But then, says Mr. Robertson (p. 161), "if the trial in Webster 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’ [as I wrote in The Shakespeare Problem Restated with absolute accuracy], what, in the name of honest controversy, is the trial in The Merchant of Venice, which Lord Campbell alleged to be ‘conducted according to the strict forms of legal procedure’?" Mr. Robertson, because I quoted Lord Campbell’s opinion, amongst others, on the question of Shakespeare’s legal knowledge, astutely seeks to tie me down, bound hand and foot, to every one of his lordship’s pronouncements upon the subject. But as one nullius addictus jurare in verba magistri I am certainly not prepared to subscribe to all Lord Campbell’s views and arguments. As to The Merchant of Venice, I have never founded upon that play an argument in support of Shakespeare’s knowledge of law or legal procedure. The [91] story of this drama, and let us not forget that it is a comedy, is manifestly taken from the Pecorone of Ser Giovanni, Day IV, Novel I, of which, by the way, there was certainly no translation available in Shakespeare’s time.