SHAKESPEARE’S LAW – PART 6

It now only remains to say a word concerning Measure for Measure, the second of the two plays, in which, according to Sir Sidney Lee, "no judicious reader can fail to detect" Shakespeare’s ignorance "alike of elementary legal principles and of legal procedure." Let us see, then, what Mr. Charles [39] Allen, to whom Sir Sidney refers us for legal light and leading, has to say concerning this play.

"In Measure for Measure," writes this critic, "Claudio was condemned to death for an assumed offence of which he was legally innocent. . . . Claudio had taken Juliet for his wife, per verba de praesenti. According to the law in Shakespeare’s time, cohabitation after such a pre-contract of marriage was not a crime." Here, then, is a flagrant instance of "Bad law in Shakespeare."

But let us examine this case a little further. There can be no doubt that Shakespeare based his play of Measure for Measure upon George Whetstone’s drama of Promos and Cassandra (1578), and the prose version of the same story which Whetstone included in his Heptameron of Civil Discourses published in 1582.* Here we find that the scene is laid at Julio in Hungary, where Lord Promos (Shakespeare’s Angelo) has been, appointed lieutenant, or "deputy," by Corvinus, the King of Hungary and Bohemia. In this city we are told there was a "statute," which had been allowed to go into disuse, but which was "revived" by Promos, whereby incontinence was made a crime punishable by death. Under this statute Andrugio (Claudio), who, "by the yeelding favour of fayre Polina" (Juliet), had trespassed against this ordinaunce," although he "onlye sinned through love, and never ment but with marriage to make amendes," was sentenced to be executed. We need not further follow the plot except to say that Promos, giving way to unlawful passion inspired by Andrugio’s sister Cassandra—who, unlike Isabella, is induced to sacrifice herself in order to save her brother’s life—becomes, like Angelo, himself guilty of the capital offence.

Now in Shakespeare’s play the scene is laid in Vienna, and here, as in Whetstone’s play, we find there was an old statute, which had been "let slip," [40] i.e., disused, for "fourteen years" (Act i. 3, 21)** under which the penalty of death was decreed against those guilty of unlawful love—a statute the existence of which Mr. Allen strangely omits to mention.

It is true that Shakespeare complicates matters by introducing the doctrine of "pre-contract," and by assuming the existence of two such "pre-contracts," one in the case of Claudio and Juliet, and another in the case of Angelo and Mariana, and seeing that "according to the law [of England] in Shakespeare’s time," such a "pre-contract" per verba de praesenti was sufficient to constitute legal marriage, Mr. Allen apparently considered himself justified in saying that Claudio was "legally innocent" of any offence, for "Claudio had taken Juliet for his wife, per verba de praesenti," as appears from Act i. Sc. 2, 149, and following lines. It is clear, however, that, in the assumed circumstances of Shakespeare’s play, such a "pre-contract" was of itself no defence to a charge under the "statute," which required "the denunciation of outward order," i.e., a solemn ceremony of marriage, before intimacy could be legalized. This plainly appears from the fact that Claudio himself nowhere contends that he is not guilty under the terms of the "statute"; he only complains that he is to be made amenable under a "drowsy and neglected act"; nor is there any suggestion made by any of the characters in the play that his sentence was illegal. And if it had been so, why, we may ask, did not the Duke, as soon as he began to take interest in the affairs of the persons concerned, at once quash Angelo’s illegal sentence?† [41]

So far all is plain sailing, but when we come to consider Angelo’s case we are confronted with no little difficulty. Angelo himself was bound to Mariana by a "pre-contract" per verba de praesenti. Mr. Allen, indeed, suggests that this pre-contract "was perhaps merely per verba de futuro, a mere executory contract to marry in the future," but there is no warrant whatever for such a suggestion, as is made manifest by Act iv. Sc. 1. 72, where the Duke says to Mariana, with reference to Angelo, "He is your husband by a pre-contract," clearly showing that such pre-contract was per verba de praesenti. But here comes the difficulty. The Duke counsels Mariana, counterfeiting Isabella under the cover of darkness, to have marital relations with Angelo; for, says he:

But these words might equally have been applied to Claudio, who was Juliet’s "husband on a pre-contract," and yet held guilty of a capital offence under the statute. And that the ceremony of marriage was necessary in order to legalize the union of Angelo and Mariana appears by Act v. Sc. 1. 380, where the Duke asks Angelo, with reference to Mariana: [42]

and upon his answering, "I was, my lord," enjoins him to "take her hence, and marry her instantly."

It would really seem, then, that in advising Mariana to counterfeit Isabella, as before mentioned, the Duke was counselling her to break the law as laid down by the statute.

This is not a little puzzling, but perhaps all we can say is that Shakespeare, for the purposes of his drama, was content to be inconsistent, and that that part of his plot which relates to the "statute," and that which relates to the "pre-contract," cannot be made to harmonize. But evidence of legal nescience there, is really none, and Mr. Allen himself, though he cites this play under the heading of "Bad Law in Shakespeare," does not actually accuse the dramatist of any legal blunder here, for he is good enough to tell us that "it is quite probable, morally certain indeed, that Shakespeare himself knew the law in respect to such pre-contracts . . . but in Measure for Measure for dramatic purposes he chose to ignore it."†† He adds, "a mere playwriter might thus trifle with the law, but the future Lord High Chancellor of England would have been less likely to do so"! But, really, we are not out to discuss the "Baconian" hypothesis. The simple question is whether Shakespeare has in Measure for Measure, as Sir Sidney Lee says, provided us with such a flagrant example of "radical unsoundness in his interpretation alike of elementary legal principles and of legal procedure" that "no judicious reader" can fail to detect it. I would earnestly commend this sad case to the "judicious" student of Shakespearean criticism. [43]

But, here again, there is yet more to be said. Mr. Allen quotes from this same play of Measure for Measure the following words:

And his comment is that no similar use of the word "widow" as a verb, "meaning to give the right of a widow, is known either in law or elsewhere."

Now this statement as to the peculiar use of the word "widow" may be, as far as I know, correct, but it is curious that in the Literary Supplement to the Contemporary Review of November, 1911, the writer of an interesting article on "Shakespeare and the Law of Marriage," whose name is not given, but who speaks of himself as "a lawyer," quotes this very passage from Measure for Measure, in order to show that Shakespeare here makes a "correct statement of the law" in a matter where "the law itself was, one would think, too complicated and unusual in practice for a layman to have known." The point is that "if a tenant in chivalry committed a felony, this affected his holding, and an escheat to the lord propter delictum tenentis followed. But a felony was an offence against the State, and so the Crown claimed the escheat or forfeiture. But the Crown was compelled to surrender this right by Magna Charta, though it managed to retain it in the case of high treason, and to this day, in the case of an outlawry upon an indictment for treason, the traitor’s land is forfeited to the Crown. But what about the rights of the widow, whether the escheat is to the lord or the Crown? . . . The widow had larger rights in her estate of dower than even the heir, for she was absolutely secured against any form of alienation by the owner. Yet [44] Shakespeare makes the Duke declare that, in this case, she had no rights; and he was correct, for the law had been finally settled that way not so very long before Shakespeare’s time. Up to the reign of Edward VI the widow was not protected against escheat for felony or treason; but in 1549 it was settled by statute that escheat in the case of felony did not affect the widow’s right of dower, though in the case of high or petit treason the dower was extinguished, thus confirming, in the case of treason, the old law, not only that no heir born before or after the felony could take the escheated property, but that every gift (including dower) made in the felon’s lifetime was bad. So Mariana would not have been entitled to dower unless the Duke had relinquished his rights."

The learned writer finds it difficult to suppose that Shakespeare, as a layman, although he has (possibly "by accident"!) correctly stated the law in the passage cited, "was familiar with this particular obscurity in the law of treason"; but he adds, "On the other hand, the play teems with legal references and correct statements of law, and it is dangerous to dogmatize as to the extent of Shakespeare’s legal knowledge."

Alas, it is clear that the writer of this article, though, doubtless, an able and experienced lawyer, could not have been a "judicious reader"!

I have now examined all Mr. Allen’s instances of Shakespeare’s "bad law" which appear to me worthy of any consideration, and as I venture to submit, I have shown that his case has entirely broken down. In tenuem evanuit auram. Lord Campbell may have "greatly exaggerated Shakespeare’s legal knowledge," and I certainly should not like to base upon his book a case for such legal learning on Shakespeare’s part that "there can neither be demurrer, nor bill of exceptions, nor writ of error" to the law as he makes [45] reference to, or "expounds it."‡ But the examples which Mr. Allen parades before us, when properly examined, entirely fail to disprove the proposition that the great dramatist had exceptional knowledge "of legal principles and legal procedure." Whether that proposition can be established by an examination of the plays and poems of Shakespeare conducted by a competent and impartial critic it is not for me to say, but, in view of all the wrangling and contention there has been on this interesting question it is, I submit, very desirable that such an examination should be undertaken, and the whole matter re-considered ab initio, if only that competent and impartial critic can be discovered, and be willing to undertake the task. If such there be I will venture to tender him some advice before he enters upon the inquiry.

In the first place it is evident that he must be a lawyer, and "a ripe and good one." It is absurd to suppose that a man who has had no legal training is competent to pronounce upon Shakespeare’s knowledge or ignorance of "legal principles and legal procedure." He must also be learned not only in the law of to-day, but in the law, and the practice of the law, civil, criminal, and ecclesiastical, as known to the lawyers of Elizabethan times.

Secondly, he should confine his investigations to the plays that are generally admitted to be Shakespearean. I would exclude from the inquiry such plays as (e.g.) Titus Andronicus, Henry VI (all three [46] parts), Timon of Athens, Pericles, The Taming of the Shrew, Henry VIII, and, possibly, Troilus and Cressida (in part at any rate) as well.

Thirdly, he must, when adducing legal terms used by other poets and dramatists, contemporaneous with Shakespeare (in order to consider the question whether these others also do not, as some contend, give proof of legal knowledge as great as that to be found in the Shakespearean plays and poems), strictly limit himself to such writers as had, so far as is known, no special legal education. For the question being whether Shakespeare shows by his writings that he had an exceptional knowledge of law, and must, therefore, have received some legal training, it is obviously otiose to quote, in this connection, passages from such writers as Middleton, Donne, Beaumont, Marston, Ford, and others, who, as we know, had studied law.

If, then, such an investigation should some day be undertaken by such a competent and impartial lawyer, or, I would rather say, by a special committee of lawyers so qualified—a consummation devoutly to be wished, but hardly to be hoped for—I venture very gravely to doubt whether they would be found in agreement with Sir Sidney Lee’s assertion that "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 knowledge," or with Mr. Arthur Underhill’s pronouncement that "Shakespeare’s knowledge of law was neither profound nor accurate." On the contrary, I think that they would dissent altogether from any such judgment on the question of "Shakespeare’s Law." But until that investigation can be made the "judicious" critic must, I apprehend, be content to say, whatever his own opinion may be, adhuc sub iudice lis est.

_______

* See Payne Collier's "Shakespeare's Library," vol. ii. p. 50. back

** "The law hath not been dead, though it hath slept," says Angelo (Act ii, 2, 90), whereupon Mr. Rushton suggests that Shakespeare had in mind the legal maxim "Dormiunt aliquando leges, moriuntur nunquam." back

† I find it difficult, therefore, to subscribe to Mr. Underhill's statement that "Angelo's condemnation of Claudio for alleged fornication was, and was intended by Shakespeare to be, absolutely tyrannical and illegal" (Shakespeare's England, vol. i. p. 408). Mr. Underhill (who, however, does not suggest any "bad law" on Shakespeare's part here) appears to have ignored the existence of the "statute." Angelo, it may be noticed, styles Juliet a "fornicatress," in spite of the pre-contract (Act ii. 2, 24), and it seems that he was justified in so calling her, since the poet evidently requires us to assume that the pre-contract alone was not sufficient to give validity to the marriage, or to exempt her and her lover from the provisions of the statute. back

†† Lord Campbell certainly knew the law with regard to "pre-contracts," though he says nothing on the subject with reference to Measure for Measure. See his learned judgment in the Queen v. Millis, 10 Clark & Finnelly (1st Series), p. 534, which is a locus classicus on the subject. See pp. 763, 784. back

‡ Lord Campbell was himself guilty of mistakes in law, as when commenting on the words "I give unto my wife my second-best bed," in Shakespeare's will, he writes "the subject of this magnificent gift being only personal property, he shows his technical skill by omitting the word devise, which he had used in disposing of his realty"; for, as Mr. Rushton points out, in Shakespeare's day "the words devise and bequeath were applied indifferently to both real and personal property." Shakespeare's Testamentary Language (1869), pp. 23 and 49. back