SHAKESPEARE’S LAW – PART 4

I now come to an instance of alleged bad law in Shakespeare which has been frequently cited by the critics, and where again I think I shall have no difficulty in showing that it is the critics, and not Shakespeare, who are in error.

"In All’s Well that Ends Well," says Mr. Allen, the King of France assumed the power to compel his ward Count Bertram to marry Helena, though Bertram remonstrated against being compelled to marry a poor physician’s daughter." But the law of "Guardian and Ward" was that "the spouse must be of equal rank with the ward," and Coke on Littleton is quoted to show that "the lord could not disparage the ward by a mésalliance." Then, says Mr. Allen, "it is quite clear that Shakespeare overlooked this feature of the law"; and here he is supported by Mr. Arthur Underhill, a distinguished conveyancing counsel, who, in Shakespeare’s England (vol. i. p. 387), writes that Shakespeare had "ignored" this condition. Moreover, Lord Campbell himself has a note to the effect that "it is doubtful whether Bertram, without being liable to any penalty or forfeiture, might not have refused to marry Helena—on the ground that she was not of noble descent," citing Coke on Littleton as above.*

I venture to say, however, that Shakespeare had neither "overlooked" nor "ignored" the condition in question. True "the spouse must be of equal rank with the ward," as Mr. Underhill writes, but the King was no ordinary "guardian." The King is the fountain of honour, and it was in his power so to ennoble [29] "the spouse" as to make her "of equal rank with the ward." And this the King of France undertook to do in Helena’s case. Hearken unto the following:

King. ‘Tis only title thou disdain’st in her, the which I can build up . . .
If thou canst like this creature as a maid
I can create the rest: virtue and she
Is her own dower; honour and wealth from me.

Whereupon says Bertram:

And the King, to clinch the matter, adds:

It appears to me that it is the critics who have "overlooked" or "ignored" a very material passage in the play.

But even if it had been otherwise; if Shakespeare had made a King of France threaten a ward with the results of his displeasure should he refuse to marry a lady whom the King desired him to marry although of inferior rank, what cogency could reasonably be attached to such an incident in a drama, as evidence of ignorance of law on the part of the dramatist? Very little indeed as it appears to me. Yet this is the only instance cited by Mr. Underhill in support of his assertion that Shakespeare’s "knowledge of law was neither profound nor accurate"—an instance which, when carefully examined, has "melted into air, into thin air."

And here I must turn aside for a moment from Mr. Charles Allen in order to say yet another word concerning Mr. Underhill’s essay on Shakespeare’s Law. This learned writer remarks on Shakespeare’s allusions to "fines and recoveries," which, he says, "seemed [30] to Lord Campbell to ‘infer profound knowledge of the abstruse law of real property,’ but which only seem profound and difficult to lawyers of the nineteenth and twentieth centuries because they have become archaic and unfamiliar." Now to Lord Campbell, at any rate, such expressions as "fines" and "recoveries" would not have seemed either "profound" or "difficult," neither to him would such terms have been "archaic and unfamiliar," seeing that these proceedings were part of our normal legal procedure for upwards of fifty years of his Lordship’s life, and that he was himself Solicitor-General when they were abolished by the legislature in the year 1833. Moreover, I cannot find the quotation which Mr. Underhill purports to cite from Lord Campbell in his book on Shakespeare’s Legal Acquirements.† What he does say, with reference to some words quoted by him from the Comedy of Errors, is that "they show the author to be very familiar with some of the most abstruse proceedings in English jurisprudence"!—a very different thing from "the profound knowledge of the abstruse law of real property."

Lord Campbell further cites the following from The Merry Wives:

Mrs. Ford. What think you? May we, with the warrant of womanhood, and the witness of a good conscience, pursue him with any further revenge?

Mrs. Page. The spirit of wantonness is, sure, seared out of him. If the devil have him not in fee simple, with fine and recovery, he will never, I think, in the way of waste, attempt us again. [31]

Here Lord Campbell does not suggest that the mere mention of all these well-known legal terms—warrant, witness, waste, fee simple, fine and recovery—is proof of Shakespeare’s knowledge of legal principles. All he suggests is that his "head was so full of the recondite terms of the law, that he makes a lady thus pour them out, in a confidential tête-à-tête with another lady," and further, that "this Merry Wife of Windsor is supposed to know that the highest estate which the devil could hold in any of his victims was a fee simple, strengthened by fine and recovery."

Now few lawyers, I take it, of the present day know very much about fines and recoveries, and laymen, naturally, know nothing at all. Nevertheless we find that certain laymen, though themselves ignorant of law, have of late, with sublime confidence, undertaken to instruct us concerning Shakespeare’s legal knowledge, or the want of it; whence it happens that many laughable errors have been solemnly committed to print. One recent lay critic, for example, who desires to show that all Shakespeare’s "law" can be easily paralleled by similar legal expressions to be found in other dramatists, though devoid of all legal education, who were the great poet’s contemporaries, has cited the word "fine," when used in its ordinary sense of a money-payment, as a parallel to the word as used by Shakespeare in the expression "fine and recovery," and the word "recovery" when used of the recovery of a debt, or of the ordinary action for the recovery of land (as distinct from the fictitious suit), as parallel to Shakespeare’s usage of the word in the technical sense as above!

Now no lawyer needs to be told that fines and recoveries were collusive actions employed to bar estates tail, to bar dower, to convey estates of married women, to enable married women to join with their husbands in selling property, and for other purposes known to conveyancers. They differed in their procedure [32] and in their effects. One "levied" a fine, but one "suffered" a recovery. The word "fine" in this connection had nothing to do with a money payment. As we read in an ancient record of Parliament, 18 Edward I, "finis sic vocatur eo quod finis et consummatio omnium placitorum esse debet"; and, similarly, we read in the statute 27 Edward I, c. i, "Quia fines in curia nostra levati finem litibus debent imponere, et imponunt et ideo fines vocantur."††

And the supposed parallels to the word "recovery" as used by Shakespeare in conjunction with "fine," are equally ridiculous.

But some sapient critics have objected that Shakespeare is [33] inaccurate in speaking of a "fee simple with fine and recovery," imagining that both these forms of assurance would not be employed in respect of the same property. They are wrong, as the reader may satisfy himself if he cares to refer to Cruise on Fines and Recoveries (3rd Edn. 1794; see vol. ii. pp. 21 and 52). Together these two devices operated to "make assurance doubly sure," and were not unfrequently so used.‡

Let us now return to Mr. Charles Allen and see what further supposed proofs of Shakespeare’s "bad law" he has to set before us. He actually finds one in Antony’s great speech over the body of the murdered Julius.

But, cries Mr. Allen, "In a devise or dedication of lands to the public, the words ‘to your heirs for ever’ are misplaced, as they would imply individual ownership, instead of a right vested in that indefinite body the public." These words, he says, are not to be found in any other account of Caesar’s Will, "and they were probably added by Shakespeare, who either did not know or overlooked their inappropriateness in a devise of this kind."

It is difficult to speak with due restraint of such criticism as this. "Their inappropriateness"! Good Heavens! Whether or not Shakespeare was a lawyer he was certainly a dramatist, and the best of all dramatists. And could anybody with a spark of [34] dramatic instinct, anybody but a hide-bound pedant, fail to see how splendidly those words, "and to your heirs for ever," ring out for the ears of the populace? They may be "inappropriate" for an indenture, but Antony was no lawyer, and he was not drafting a deed. Neither was Shakespeare, whether lawyer or not, such a poor dramatist as to make a great orator, speaking to rouse the passions of a Roman mob, talk in the technical language of a conveyancer.

And this is solemnly put before us as an example of Shakespeare’s "bad law," and our literary pastors and masters commend it to us as "especially noteworthy" criticism! Yes, noteworthy it is indeed.

Here is another example: In Coriolanus, Sicinius says:

But, comments Mr. Allen, "Resisting law was no legal reason for denying him a trial"!

Now it is curious that Mr. Rushton, himself a learned lawyer, has quoted this very passage, amongst others cited by him, to illustrate Shakespeare’s familiarity with legal maxims. In connection with the above-quoted words from Coriolanus (Act iii.1) he refers to the maxim, "Merito beneficium legis amittit, qui legem ipsam subvertere intendit" (2 Inst. 53), and notes that, in accordance therewith, "Coriolanus had resisted law and therefore lost the benefit of the law."‡‡

And after all, as Mr. Allen notes, "it was finally decided to proceed regularly by process." Really such solemn trifling is but waste of the reader’s time.

_________

* Shakespeare's Legal Acquirements (1859), p. 58. back

** Act ii. Sc. 3. back

† Mr. Underhill has kindly written to me that his article was written upwards of ten years ago, and that he cannot now say where he got the words in question, but "must have taken it [the quotation] from some printed source." I think, therefore, there can be no doubt that he took it from some writer who misquoted Lord Campbell. Certainly he would not have written such nonsense. See my letter in the Times Lit. Supp., March, 11, 1920. back

†† Mr. Underhill gives us a brief description of a Common Recovery, and adds a word with regard to a fine (Work cited, pp. 404-5). I would refer to Stephen's Comm., 8th Edn., i. 564; Kerr's Blackstone (1862), vol. ii. 351; and Cruise on Fines and Recoveries (3rd Edn., 1794, vol. i. pp. 175, 197-227). Mr. J. M. Robertson, who, as a layman, was not unnaturally ignorant of the meaning of the words "fine" and "recovery" used in their technical sense, has come quite amusingly to grief by finding parallels to them in the use by Dekker and other dramatists contemporary with Shakespeare of the same words in their ordinary signification, as, e.g., in the use of "fine" in its common meaning of a money payment. Thus, after telling the reader that "'Fine,' as it happens, is a common figure in the drama of Shakespeare's day," he quotes from Dekker:

and from Porter:

And actually informs us that, "There is nothing more technical in the 'Comedy of Errors'"! (The Baconian Heresy, p. 46). This is, of course, ludicrous. See my Shakespeare's Law and Latin (Watts & Co., 1916), p. 11 et seq. We even find the above absurd error as to the meaning of the word "fine" in Schmidt's Shakespeare Lexicon (1874). back

‡ Malone tells us of a deed of June 2, 1647, "to lead the uses of a fine and recovery of our poet's estate, then in the possession of his eldest daughter, Susanna Hall." Boswell's Malone (1821), vol. ii. pp. 116-7. back

‡‡ Shakespeare's Legal Maxims (1907), p. 58. back