FOREWORD

[6] WHEN this essay was completed it occurred to me that it might, possibly, find a place in a certain Legal Magazine, which shall be nameless. I therefore wrote to a distinguished lawyer who had for some years edited the Journal in question, and with whom I happened to be acquainted, asking if I might be permitted to submit my paper for his consideration. He replied that he had recently resigned the editorship, but that he had forwarded my letter to the new editor, and subsequently that gentleman who was entirely unknown to me, was good enough to write that he was "willing to consider" my article. Thereupon I forwarded it to him, but he shortly returned it to me saying that it was "unsuitable."

Now if he had stopped there I should, of course, have had nothing further to say. An editor is master of the situation, and if he decides to reject a proposed contribution it is extremely foolish to quarrel with his decision. Nor was I, in truth, greatly perturbed by it. Unfortunately, however, this gentleman did not stop there. He proceeded to lecture me, de haut en bas, in a style which, speaking from a long experience, I venture to say that editors are not in the habit of employing in such a case. On the contrary, I believe, and I sincerely hope, that this gentleman’s editorial methods are unique. As I have already said, he was an entire stranger to me. I had never met him, nor [7] had I ever heard of him, and the Law List gave me no information concerning him except that, judging from the date of his call to the Bar, I gathered that he is a very considerably younger man than I am. And this is the style in which he thought it becoming to address a septuagenarian member of his profession, an entire stranger to him, who had, in an evil hour, been induced to submit an essay for his editorial consideration. He commenced by politely informing me that my article contains "a couple of howlers"! Now if he imagined that he had discovered two mistakes in my essay, and had, with due courtesy, drawn my attention to them, I should, if his criticism had appeared to be just, have been grateful for his correction, and if he had been an intimate friend I should not have taken any exception whatever to the familiar epithet employed to designate them. But for this stranger editor to write to me that I had been guilty of "howlers" appeared to me to indicate that, whatever else he might be a judge of, he is not exactly qualified to act as arbiter elegantiarum; in fact, that his manners are far from having that repose which stamps the caste of Vere de Vere!

And what were the "howlers" of which he asserted I had been guilty? Well, first, I state in my essay (see p. 31) that "no lawyer needs to be told that ‘fines’ and ‘recoveries’ were collusive actions." But, says the editor of this Legal Periodical, "a fine was not a collusive action." Here then is "howler" number one!

Now I should be quite content to leave this very remarkable assertion—viz., that "a fine was not a collusive action"—to any lawyer who has ever paid attention to the old law relating to "fines" and "recoveries." Moreover, it is quite unnecessary to refer to well-known authorities with regard to it, for I happen to have before me a very interesting pamphlet, entitled The Line of Least Resistance, by Mr. [8]Arthur Underhill, LL.D., Bencher of Lincoln’s Inn, and Senior Conveyancing Counsel to the Court, from which I will quote but two sentences:—"The Statute Quia Emptores made freehold tenancies in fee-simple saleable free from the rights of the vendor’s heir, although, curiously enough, subject to his widow’s right to dower. . . . This right was ultimately able to be barred by a collusive action called a fine" (p. 11). I do not think I need say more on this matter, though quite possibly my omniscient editor will retort that Mr. Arthur Underhill has been guilty of a "howler." I hardly think, however, that even his self-sufficiency will carry him quite so far as that.*

As to "howler" number two, it was a mere matter of misapprehension of my meaning, and I need not now waste words upon it. But let us see what follows.

Speaking not as a matter of opinion, but ex cathedra, from his editorial chair, as though making an infallible pronouncement, this pontifical lecturer tells me that Shakespeare "wrote of law as a dramatist, and in every one of the instances that can be quoted there [9] is not a single case in which he has not misapplied the technical expressions, or in which a lawyer would not have omitted them"!

This is really magnificent. The question of Shakespeare’s legal knowledge is thus settled for all time by this gentleman’s ipse dixit. There is, in fact, no question to be discussed. All the lawyers whose opinions I have cited in the following essay, and who in their time held high place in their profession, may be dismissed as poor ignorant simpletons whose judgment in this matter is not worth the paper it is written on. We may, therefore, spare ourselves the trouble of making any further inquiry as to our great poet’s knowledge of law. "I am Sir Oracle," says Mr. Editor, and "when I speak let no dog bark"! The only objection to this view of the case is that, so far as I can ascertain, this gentleman speaks with no authority except that which comes from self-assertion. I cannot learn that he is a gentleman of any particular distinction in his profession, or that he possesses any qualifications which entitle him to claim any particular value for his opinion. Let us see how he comments on the words of Mrs. Page, in the Merry Wives, to which Lord Campbell has drawn attention, and which I have discussed at p. 30 of the following paper. "If the devil have him not in fee-simple, with fine and recovery," says the Merry Wife, with reference to Falstaff, "he will never, I think, in the way of waste attempt us again." Now listen to the illuminating criticisms of the very learned lawyer (soi-disant) who occupies the exalted position of editor of a certain Legal Journal. Here it is. "The devil could not have Falstaff in fee simple, but could only have an estate pour autre vie. Again, as waste could only be enjoyed by freehold tenants of a manor grant (actual or presumed), there would be a suggestion to a lawyer that Ford and Page were pimps. The analogy of a copyhold tenant’s claim [10] to waste would be too far-fetched for a lawyer to consider it for a moment."

Now I would beg the reader to refer once more to the delightful passage in Shakespeare’s play to which all this refers, and then to ask himself whether in the whole range of Shakespearean commentary he can point out a more entirely futile and absurd pronouncement, or one that shows such an entire lack of appreciation of comedy, than this portentously pedantic display of absurdly misapplied learning, if learning indeed it be! What the train of reasoning is that would induce "a lawyer" (save the mark!) to discover in Mrs. Page’s words "a suggestion that Ford and Page were pimps," I thank Heaven—though I used to call myself "a lawyer"—I have not the least idea.

But, unfortunately, our legal lecturer descends to still lower depths. I have pointed out in the following essay (p. 28) that the critics who think they have detected "bad law" in Shakespeare’s play All’s Well that Ends Well, are mistaken, because, although a guardian was not entitled to insist that his ward should marry a lady of inferior rank, as was Helena’s position with regard to Bertram, yet the King of France was no ordinary guardian, seeing that he had the power to raise the lady to a rank as high as that of his ward, and had actually undertaken so to do. Now hear the comment of my editorial mentor upon this. "I must say," he writes, "that I do not appreciate your suggestion that a king could, by ennobling a strumpet, make her a suitable match for his ward"! I commend this charming piece of legal and literary criticism to all lovers of Shakespeare, lawyers or laymen; I commend it to all who have ears to hear, heads to appreciate, and hearts capable of righteous indignation. Helena, according to Coleridge—no mean critic—is Shakespeare’s "loveliest creation." Concerning Helena Mrs. Jameson writes: [11] "There never was, perhaps, a more beautiful picture of a woman’s love . . . patient and hopeful, strong in its own intensity, and sustained by its own fond faith . . . the beauty of the character is made to triumph over all."

Such is Helena to Coleridge and Mrs. Jameson. Such I should have thought she would be to all men and women sufficiently educated to read Shakespeare’s play, and who are possessed of wholesome and decently constituted minds. But to him who from his editorial chair sends me this unsolicited, this entirely gratuitous—may I not say this extremely impertinent?—written harangue, Helena is "a strumpet"!

Well, well. There I am content to leave it. Such are now, it seems, the self-constituted Judges who preside over the Courts of English Literature. I know, of course, and know only too well, that a "Great Taboo," as a recent writer has styled it, has been established against those who venture to suggest that, possibly, the name "Shake-Speare" was a mask-name under which some great man, other than he who came from Stratford-on-Avon, was able to write while preserving his own anonymity. I know that the Highbrows of English Literature will not deign even to mention, still less to admit, any discussion of an hypothesis which is so shocking to their tender sensibilities; I know that, as a distinguished French scholar has said, "L’hétérodoxie dans ce domaine a paru jusqu’à present aux maitres des universités et aux érudits, une opinion de mauvais goût, téméraire et malseante, dont la science patentée n’avait pas à s’occuper, sauf pour la condamner."† I myself, although I yield to none in my admiration of Shakespeare’s works, have been called a "Defamer [12] of Shakespeare," because, after many years’ thought and study of the subject, I find I am constrained to hold this "heterodox" opinion concerning the authorship of those works. But to write of one of Shakespeare’s most beautiful characters that she is "a strumpet," that, of course, is not to "defame Shakespeare," provided you are sound on the true Stratfordian Faith. And it is before such Judges that we poor heretics have to be tried! It is true that there is nothing at all "heretical" in the following essay. It might have been written by the most "orthodox" of "Stratfordians." Aye, but my antecedents are, of course, known. I come before the Court as a suspect character. Nay, more, I am marked out as a subject of the "Great Taboo"!

Well, we must e’en bear it as best we may. Magna est Veritas et praevalebit—some day perhaps!

________

* Amongst other authorities, I might mention the Encyclopaedia of the Laws of England, where "Fines" are described as "collusive actions." In other places they are called "fictitious" actions, as (e.g.) in Williams on the Law of Real Property: "Fines were fictitious suits commenced and then compromised by leave of the Court, whereby the lands in question were acknowledged to be the right of one of the parties" (12th Edn., p. 230). It is hardly necessary to say that the word "collusive" does not necessarily connote fraud, or deceit. As we read in Termes de la Ley, "Collusion is where an action is brought against another by his own agreement." If both plaintiff and defendant agree to bring an action with a common object, that is a "collusive action." As my editorial mentor himself admits, "Recoveries" were "collusive actions," but, like "fines," they were recognized and approved methods of dealing with land in certain cases, and no suggestion of fraud or deceit attached to them. back

† Sous le Masque de "William Shakespeare" by Abel Lefranc, Professeur au Collège de France, Vol. 1. p. 20. back