SHAKESPEARE’S LAW – PART 5

Again, Mr. Allen takes objection to the use of the word "demise" in the following passage from King Richard III: [35]

Here he says the word "seems to be used not only in an untechnical, but in an unusual sense."

Now the first comment to be made on this is that the words in question are spoken by the Queen Elizabeth, and I am not aware that it has ever been asserted even by the most zealous advocate of the "legalist" Shakespearean School, that Shakespeare was not only such a hide-bound lawyer, but also so wanting in dramatic propriety as to make his ladies use legal expressions with the accuracy of the trained lawyer. He does, indeed, as we have already seen, sometimes put a string of well-known legal expressions, such as "fines" and "recoveries" and the like, into a woman’s mouth, but that is, of course a very different thing from making women speak, in serious conversation, in the technical language of the lawyer. This is the answer to another objection taken by Mr. Allen, viz.: that "In As You Like It, Celia, in speaking of her own father, says to Rosalind, ‘And, truly, when he dies, thou shalt be his heir,’ meaning that she herself would share her inheritance with Rosalind," where, says Mr. Allen, "this use of the word appears to be not only untechnical but unique."

Is he then prepared to argue that if Shakespeare had really possessed an adequate knowledge of law (which, of course, he denies) he would have sacrificed his dramatic art to legal propriety, and made his ladies speak with the technical accuracy of the law-student? If not, objections of this nature are but fond things vainly invented.

But to come back to this use of the word "demise." To "demise" means to "convey," "transfer," or "grant." To apply it to a "dignity" or "honour" may be unusual, but, certainly, it cannot be called an example of "bad law." Moreover, the Queen is right, prima facie at any rate, when she suggests to [36] Richard that he has no power to "demise" any dignity or honour to a child of hers, for, as Comyn’s Digest informs us, "a dignity or nobility cannot be aliened or transferred to another." Nevertheless there was an exception. It was possible for Richard to "demise" such dignities or honours, inasmuch as he was King, and even a subject could make a grant of such things "with the King’s licence."

And here I must give another alleged example of Shakespeare’s "bad law," again to be found (as it is said) in the utterance of a Queen, which, although it is not cited by Mr. Charles Allen, is so full of interest and instruction for Shakespearean critics and students that it cannot be left out of the account.

Queen Katherine, in Henry VIII (Act ii. 4), says to Wolsey:

Whereupon say certain critics, lay and legal—Mr. Devecmon of the Maryland Bar is one of them, and I quote his words: "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." This, therefore, is yet another instance of "bad law" on Shakespeare’s part.

Now, here I should have thought it was sufficient to reply that "challenge" was constantly used in the sense of "objection"; and that, 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 Katherine should apply, by a very natural analogy, to one of the two Cardinals who were to act as judges in her case (but subject to the supreme tribunal of the Pope, the real judge), a term which in strict legal usage is properly applicable to [37] a juror only; and here again I might comment 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.

But there is much more than this to be said. These critics have forgotten that the question of Katherine’s divorce was to be tried not in one of the Temporal Courts, but in an Ecclesiastical Court; and here an objection might be taken by the defendant on the ground that the judge was a "suspect" person (iudex potest ut suspectus recusari) for certain just causes which may be found set forth in the Corpus Juris Canonici, and the Decretals of Gregory IX. Katherine, therefore, acted strictly within her rights in challenging Wolsey ("challenge" here standing for "recusare"—"I do refuse you for my judge"), because she believed him to be her enemy. Wolsey, however, denies the accusation, tells the Queen to put such notions away from her, and will not admit the objection. This was provided for by the Canon Law: quod si iustam recusationis causam noluit admittere delegatus . . . a tali gravamine licite potuit ad nostram audientiam appellare. Agreeably with this Katherine makes her appeal:

Katherine, it seems, follows the correct procedure throughout, except that, perhaps, the more regular course would have been to let her proctors act for her in making her challenge and raising her appeal, but that would have led to the sacrifice of one of the most dramatic incidents of the play.

There seems, then, to be no doubt that the author of this part of King Henry VIII was acquainted with the correct procedure of the ecclesiastical courts, and [38] has stated it accurately in this scene, and, therefore, that this passage, instead of being an example of Shakespeare’s legal nescience, is, on the contrary, a very remarkable proof of his exceptional legal knowledge. One could hardly find a more instructive example of the dangers that lie in wait, not only for the layman, but for the lawyer himself, unless he be equipped with a very thorough all-round legal training, when he essays to criticize Shakespeare’s use of legal terms.*

All this is, I think, instructive and illuminating, but I have to admit that, so far as I am concerned, it is ex abundanti on the matter of Shakespeare’s legal knowledge, because, in my humble judgment, it has now been proved that so much of Henry VIII as was not written by Fletcher was the work of Massinger, who wrote in collaboration with him.†

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* Mr. W. W. Graham, British Vice-Consul at Durango, Mexico, writes to me that "Under the old Spanish Code either party to a suit has the right to 'recusar,' i.e., 'challenge' the judge on eleven different grounds, of which No. 9 is that he has previously interested himself or expressed an opinion on the case pending. This right is frequently exercised in Mexican law today. The Queen, true to her character as a Spanish lady, twice 'refuses' Wolsey as judge, an almost literal translation of 'recusar.' Surely this is one more proof that the Great Unknown was posted on Spanish law as well as on English"! back

† See Sidelights on Shakespeare, by H. Dugdale Sykes. (The Shakespeare Head Press, Stratford-upon-Avon, 1919.) It was, of course, Mr. James Spedding who offered proof that a great part of the play, including Wolsey's and Buckingham's speeches, was written by Fletcher, an opinion which has met with general acceptance. back