SHAKESPEARE’S LAW – PART 1

[13] IN the year 1859, Lord Campbell, who in that year became Lord Chancellor, having previously (in 1850) been Lord Chief Justice of the Queen’s Bench,** published a book in the form of a letter to Mr. Payne Collier, entitled Shakespeare’s Legal Acquirements, in which he contended that Shakespeare had "a deep technical knowledge of the law," and an easy familiarity with "some of the most abstruse proceedings in English jurisprudence." With regard to the poet’s "judicial phrases and forensic allusions" he writes: "I am amazed, not only by their number, but by the accuracy and propriety with which they are uniformly introduced." And on the question as to the means by which Shakespeare could have acquired all this legal knowledge, he expresses himself as strongly inclining to the hypothesis that the dramatist had studied law in an attorney’s office.

Lord Campbell’s great experience as a lawyer, and the high position which he held in the legal profession, naturally led to a very general acceptance of his opinion on this matter of Shakespeare’s knowledge of law, and that opinion has been too frequently cited as a conclusive authority on the question by writers who have not taken the trouble, [14] or who have not been competent, to examine the arguments upon which it is founded.

Now Lord Campbell had been anticipated in this inquiry by a learned barrister of Gray’s Inn, to wit Mr. William Lowes Rushton, who in August, 1858, a year before the issue of Lord Campbell’s book, had published a little work called Shakespeare a Lawyer, in which he also adduced arguments well worthy of consideration in support of the contention that Shakespeare had an accurate knowledge of law, and this author subsequently complained, and it appears not without justice, that the Lord Chancellor had made use of his work, but had omitted to make reference to the source upon which he had drawn. "It is well known," wrote a writer in one of the newspapers of that day,*** "that Lord Campbell, some time afterwards, published a similar work, availing himself, without acknowledgment, of Mr. Rushton’s labours, as the Examiner conclusively pointed out."

Mr. Rushton’s book has become scarce, and it is now very difficult to obtain a copy of it, but he subsequently published two little brochures on the same subject, viz.: Shakespeare’s Testamentary Language (1869) and Shakespeare’s Legal Maxims (1907), both of which, but especially the former, will be found well worthy of study. In both he takes note that Lord Campbell himself, in the work mentioned, has made several mistakes in law, and he makes use of that fact to warn the reader of the danger there is in concluding that Shakespeare was no lawyer because, it may be, he also has been guilty of some mistakes of the same kind. For if that argument [15] is to prevail it can be equally well proved that Lord Campbell himself was no lawyer, or, to use Sir Sidney Lee’s expression (infra p. 17), had had no "technical experience." Quod est absurdum.**** But, asks Mr. Rushton, "Is there a barrister or a solicitor in large practice, or a judge on the bench, who can say with truth, ‘I never made a mistake in law’?"

The question then is, Does Shakespeare, although, possibly, he may be found to be at fault here and there, show by his plays and poems such a general knowledge of law, and legal principles, and such an exceptional familiarity with legal procedure, and the ways and habits of lawyers, as force us to conclude that either he was himself a lawyer, or had, at any rate, received, somehow and somewhere, a sound legal education?

And here, before passing on, it may be well to mention that long before the days of Rushton and Campbell, one of the acutest, most learned, and most distinguished of Shakespearean critics, Malone to wit, himself a lawyer of no mean authority, had written of Shakespeare: "His knowledge and application of legal terms seems to me not merely such as might be acquired by the casual observation of even his all-comprehending mind; it has the appearance of technical skill." †

Another lawyer, and well-known Shakespearean, Richard Grant White, has written: "No dramatist of the time, not even Beaumont, who was a younger son of a judge of the Common Pleas, and who, after studying in the Inns of Court, abandoned law for the drama, used legal phrases with Shakespeare’s readiness and exactness… legal phrases flow from his pen as part of his vocabulary and parcel of his thought." [16]

Yet another learned lawyer, the late Mr. E. T. Castle, K.C., has borne testimony to the accuracy of Shakespeare’s legal knowledge, and lays stress on his "familiarity with the habits and thoughts of counsel learned in the law."

I might further cite the opinions of Lord Penzance, Judge Webb, and Judge Holmes of the Supreme Court of the United States, but as these were supporters of the "Baconian" theory it may perhaps be better not to call them as witnesses in the case.††

Turning now to lay writers, it is interesting to note that that highly distinguished critic, George Steevens, who, as Sir Sidney Lee writes, "made invaluable contributions to Shakespearean study," and whose edition of the poet, published in 1773, was "long regarded as the standard version," expressed himself as in agreement with Malone’s estimate of Shakespeare’s legal knowledge; and one may add that Charles and Mary Cowden Clarke, whose names will ever be remembered in the history of Shakespearean bibliography, spoke of "the marvellous intimacy which he displays with legal terms, his frequent adoption of them in illustration, and his curious technical knowledge of their form and force." Professor Churton Collins, also, has written of Shakespeare’s "minute and undeviating accuracy in a subject where no layman who has indulged in such copious and ostentatious display of legal technicalities has ever yet succeeded in keeping himself from tripping."

If then appeal is to be made to authority on this matter, one could point to a formidable body of [17] opinion in support of the proposition that the works of Shakespeare prove that their author must have been exceptionally well equipped with legal knowledge; and, in accordance therewith, we find Sir Sidney Lee, in the earlier editions of A Life of William Shakespeare, making mention of "Shakespeare’s accurate use of legal terms which deserves all the attention that has been paid it."††† Since those editions were published, however, it appears that Sir Sidney has changed his views on the subject, for he now writes: "The poet’s legal knowledge is a mingled skein of accuracy and inaccuracy, and the errors are far too numerous and important to justify on sober inquiry the plea of technical experience [sic].†††† No judicious reader of The Merchant of Venice or Measure for Measure can fail to detect a radical unsoundness in Shakespeare’s interpretation alike of elementary legal principles and of legal procedure." And in a note, after expressing his opinion that Lord Campbell "greatly exaggerated Shakespeare’s legal knowledge," he refers us to Notes on the Bacon Shakespeare Question by Charles Allen (Boston, 1900), as showing "the true state of the case," and more particularly to ch. vii. of that work, on "Bad Law in Shakespeare," which he informs the reader "is especially noteworthy."‡

Now were I to attempt to make a survey of Shakespeare’s plays and poems with the object of testing the truth of Sir Sidney Lee’s assertion that the great [18] poet and dramatist was "radically unsound in his interpretation alike of elementary legal principles and of legal procedure"—a fairly sweeping statement—I should require to add yet another volume to the mountainous mass of "Shakespeare" literature, in order to do justice to such a far-reaching and comprehensive subject. Happily, however, Sir Sidney has himself indicated a shorter and easier method of investigation. He has referred to Mr. Charles Allen’s chapter on "Bad Law in Shakespeare" as being "especially noteworthy." I propose, therefore, to examine the evidence of our great poet’s ignorance of legal principles and procedure so conveniently set before us by this American writer,‡‡ and vouched for by Sir Sidney Lee, only premising that I decline to accept as examples of Shakespeare’s alleged "bad law" instances taken from plays which are, in whole or in part, of very doubtful authorship, such as Henry VI (all three parts), Titus Andronicus, Timon of Athens, and some others. We must confine ourselves to admittedly "Shakespearean" plays.

Here, then, is a "noteworthy" example of Shakespeare’s "bad law" according to our legal mentor Mr. Charles Allen (p. 128). In Love’s Labour’s Lost the King addresses his three friends and companions in the following words:

What says Mr. Charles Allen as to this? "A statute imports a legislative act; or, if used here for ‘edict,’ even an edict stands of its own force, and does not require an oath to support it in order to make it binding. . . . The word seems to be used inaccurately for vows or resolves." [19]

Now this criticism really appears to me—if one may be allowed to express an honest opinion in plain language—to exhibit such a deficiency both of knowledge and common sense that, in my judgment, it is sufficient of itself to put Mr. Allen’s book, so far as it pretends to be an exponent of law and legal principles, altogether out of court. "A statute imports a legislative act"! Mr. Allen, then, had never heard of "Statutes Merchant" and "Statutes Staple." But we may put these aside. He had never heard of the "statutes" of a School or College, or of a Cathedral Chapter! He had never heard of scholars, students, disciples, or teachers being called upon to make oath to keep such statutes! And this is set before us as an example of Shakespeare’s "bad law"—save the mark! It is, really, a very melancholy example of the teacher’s incompetence to teach.‡‡‡

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** We now speak of "The Lord Chief Justice of England," but that title dates only from the year 1875, although Coke had tried to assume it, and was informed, when he was dismissed in the year of Shakespeare's death, that he had incurred the displeasure of the, King by so doing. Upon this matter we read in the modern Encyclopaedia of the Laws of England: "Shakespeare, ever accurate in his legal terminology, styles Gascoigne, C. J., 'Lord Chief Justice of the King's Bench,' in the dramatis personae of 'King Henry IV. Part 2.'" (Italics mine.) back

*** The Liverpool Albion. Mr. Rushton was closely connected with Liverpool. We may notice that Lord Campbell's letter to Payne Collier bears the date, in his book, September 15, 1858, though the book itself was not published till 1859. Mr. Rushton's book was published in the first week of August, 1858. back

**** I would recommend those who are inclined to sneer at Lord Campbell's authority as a lawyer to read Mr. G. P. Macdonell's article on him in the Dict. Nat. Biog. back

† Boswell's Malone (1821), Vol. ii. p. 108. back

†† Mr. Castle was not altogether "orthodox." He entertained the curious idea that Shakespeare and Bacon collaborated in what he calls "the Legal Plays." See Shakespeare, Bacon, Jonson, and Greene, by E. T. Castle, K.C. Lord Penzance's legal competence no one, I apprehend, will be found to question. back

††† I quote from the Illustrated Library Edition (1899), p. 30. back

†††† How "errors" could possibly "justify a plea of experience" is beyond the limit of my very ordinary intelligence. back

‡ A Life of Shakespeare (1915), p. 43. He further refers to Mr. J. M. Robertson's Baconian Heresy (1913), but I have said all I desire to say about that work in my booklet, Shakespeare's Law and Latin (Watts & Co., 1916). Mr. Robertson, it will be remembered, is not a lawyer, nor, for that matter, is Sir Sidney Lee. back

‡‡ Mr. Charles Allen, now deceased, was a lawyer of some distinction, who practised latterly at Boston. back

‡‡‡ "Statutes." A writer in the Times Literary Supplement of June 25, 1920, has brought to our notice an instructive example of the use of this word, where it certainly does not "import a legislative Act." The "Statutes" of the Ewelme Almshouse (built before 1450) "run in the names of William de la Pole, Duke of Suffolk, and Alice his wife." But such use of the word was, and is, of course, extremely common. back