Part One - MR. ROBERTSON AS EXPONENT OF LAW

[1] IN the Literary Guide for March, 1916, replying to Mr. M. Robertson’s articles, I wrote as follows:

In his book on The Baconian Heresy (1913) Mr. J. M. Robertson made a violent attack upon me, in his most approved style; and if argument could be killed by epithets, and assertion were equivalent to demonstration, I should certainly be in a bad way. But that attack was, in my opinion, as to certain parts thereof, extremely unfair, and in my recently published Is There a Shakespeare Problem? I essayed to answer it as vigorously and effectually as my poor powers enabled me. Mr. Robertson now, making use of the Literary Guide as the medium for another attack, affects a superior tone, and somewhat loftily animadverts upon "the spirit" in which I write. I do not think this will carry much weight with those who are familiar with his well-known style of controversy. They will be reminded, I fancy, of a much-quoted line of Juvenal about "the Gracchi complaining of sedition"!

Controversy is to Mr. Robertson as the breath of his nostrils. He is to the manner born. But I fear he is not too tolerant of an opponent who distinctly refuses to "turn the other cheek." He would, doubtless, describe me after the manner of the French showman: "Cet animal est très méchant; quand on l’attaque il se défend"! Hence, no doubt, his genial sarcasm concerning my physical breakdown, and consequent "pathologica1" lapses—a style of writing, [2] concerning an opponent in literary controversy, which "I envy not in any moods."

And when Mr. Robertson talks at large about my "cloud of invective," I can only trust (if it be not too much to hope) that some readers of the Guide may be induced to turn to my book, whereupon they will see how much—and how little—truth there is in this imputation. Yet Mr. Robertson ought to know what "invective" is, if any man does!

Mr. Robertson tells us that he has dealt with two questions, which he considers the main evidential questions with reference to the simple thesis with which alone I am concerned—viz. (I state them in my own terms): (1) Do the works of "Shakespeare" show accurate and exceptional legal knowledge such as we cannot suppose the player to have possessed, and (2) do they exhibit an amount of classical knowledge and learning, such, also, as the player could not be supposed to possess?

Now, as outspokenness seems to be the mot d’ordre in this edifying controversy, I will express my own opinion with the most entire frankness. I fear it may not please Mr. Robertson, but, as it is my honest and settled conviction, I see no reason to suppress it. In my opinion, then, Mr. Robertson is not adequately equipped to discuss these particular questions, for the simple reason that he is neither a lawyer nor a classical scholar. It is not the slightest disparagement to Mr. Robertson to say this. He was not condemned, as some of us were, to learn Latin and Greek, and, I fear, little else, between the ages of nine and twenty-three; he had not to seek scholarships rather "for gain" than "for glory"; he had not to slave for an "Honour Degree." Neither had he to read for some years in legal chambers, to pass an examination for admittance to the Bar; to go Circuit and Sessions; to "keep leets and law days"; to attend County Courts, Magistrates’ Courts, and "High" Courts, and to go through all the drudgery and discipline of a practising [3] barrister. Instead of this, he was equipping himself, and most efficiently, in other branches of knowledge, and for other walks of life; gaining all that experience and learning and information which have enabled him to reach a distinguished position in the literary world. I would think twice and thrice, before engaging in controversy with Mr. Robertson on a question of Economics, or of Rationalist (or "Humanist") literature or history, or, indeed, on many other questions. But ne sutor supra crepidam. It is even more difficult today than it was in Bacon’s time to take all knowledge for one’s province.

And now, if Mr. Robertson shall retort that I also am not qualified to pronounce on Shakespeare’s law and Shakespeare’s scholarship, I will, certainly, raise no complaint on that ground. As to law, I subscribe to the words which I heard spoken in the House of Commons the other day by a learned King’s Counsel, who said that the more he studied it the less he felt he knew. It is only those who are ignorant of it who think it can be acquired with facility—"picked up," perhaps, in some local Court of Justice! But I would just ask this question: How can a layman possibly decide as to Shakespeare’s knowledge of something whereof he is himself ignorant? A lawyer may, of course, go wrong; but he does, at least, speak with some knowledge of his subject. A layman’s judgment, as it seems to me, can be of little or no use. Mr. Robertson is, as we know, and as he tells us, very contemptuous of authority; but, for my part, I think the opinion of lawyers such as Malone, Rushton, Lord Campbell, Lord Penzance, Judge Webb, Mr. Castle, and a few others whom I might name, may, possibly, be of more value upon this point even than Mr. Robertson’s.

For the rest, I leave my arguments to speak for themselves. But, as I have already mentioned,* Mr. Robertson [4] says he has "exposed" me. Let us now see, therefore, how the "exposure" is effected. In The Shakespeare Problem Restated (1908), commenting upon Lord Campbell’s remark that a layman who undertakes to write about law is sure to betray by some untechnical observation that he is not of the profession, I cited, by way of illustration in a footnote, some words of Mr. Robertson’s viz., "Let us formulate all the tests...first putting a few necessary caveats." I did not quote this as an error on Mr. Robertson’s part, but merely as a remark revealing that he was not a lawyer. "No lawyer," I wrote (p. 372 note), "would speak of putting a caveat." Now this is undeniably true. No lawyer of the present time, or indeed of any time, so far as I know, would so speak, simply because the legal expression is to "enter a caveat." If the lay reader cares to refer to the "Probate" or "Admiralty" Rules, or to the Annual Practice, or the Encyclopaedia of the Laws of England, or any text-book dealing with the subject, he will find that this is the term used universally and without exception for the process of lodging a "caveat." And even if a lawyer should speak, in slipshod fashion, of "putting in" a caveat, which I do not think any lawyer of today would do, he certainly would not talk of "putting" a caveat, as Mr. Robertson does. Again, I say, I merely cited this remark, not as an error, but as one of those very small things which so often reveal the fact that a writer is not "of the craft," as Lord Campbell says.

But, unfortunately, my indexer—for I had not time to compile the index myself—wrote, with regard to this little matter: "Robertson, J. M., betrays his ignorance of law." This appears to have rankled in Mr. Robertson’s mind. He makes reference to it in his book, The Baconian Heresy (p. 175), and I fear he has brooded over it ever since. At last, however, he has made a discovery which shall put me to shame. "Since Mr. Greenwood will not be taught," he writes, "he must just be exposed."** Now mark how it is done. [5]

Mr. Robertson has discovered that Bacon writes in the Advancement of Learning: "St. Paul gives a caveat," and "Caesar’s counsellor put in the same caveat." And was not Bacon a lawyer? What ignorance, then, on my part to say that no lawyer would speak of "putting" a caveat!

Mr. Robertson, therefore, apparently supposes that what Bacon wrote three hundred years ago somehow invalidates my statement as to what is the use and practice of lawyers of today! I think he will enjoy a monopoly of that quaint idea.***

And such is the basis upon the strength of which this courteous gentleman, with his exquisite urbanity, thinks he is entitled to tell his readers that he has "exposed" me! Well, happily, I am not called upon to perform that function in Mr. Robertson’s case, for the simple reason that he is always unconsciously and ingenuously performing it for himself, proprio motu, as I shall abundantly demonstrate in the course of this inquiry.

In the year 1859 Lord Campbell, who was, first, Lord Chief Justice of the Queen’s Bench, and afterwards Lord Chancellor, published a small book, with the title Shakespeare’s Legal Acquirements, in which he maintained that Shakespeare must have possessed a very exceptional and accurate knowledge of law. This idea was not a new one, for Malone, himself a lawyer and one of the most acute and learned of Shakespearean critics, had, many years before, expressed the opinion that Shakespeare’s "knowledge of legal terms is not merely such as might be acquired by the casual observation of even his all-comprehending mind; it has the appearance of technical skill."

Now, in The Shakespeare Problem Restated (ch. xiii) I made frequent reference to Lord Campbell’s book. Mr. Robertson is kind enough to say that I did so [6] without reading it. "Mr. Greenwood," he writes, "has again and again relied on sheer ‘authority’ as such for main points in his case. He did so with Lord Campbell, whose arguments and evidence on the ‘law’ theory he had not read" (original italics)..."As to law he quoted at second hand the ostensible conclusions of Lord Campbell, without noting his inconsistent reservations, and above all without even reading his argument and his evidence."

It is characteristic of Mr. Robertson to make such statements as these, but they are quite untrue. I had, "as it happens"—to use a phrase of Mr. Robertson’s to be referred to presently—read Lord Campbell’s book—not a large task, for it is a very short one; and if Mr. Robertson had read my Vindicators of Shakespeare and, since he refers to it more than once, I presume he had read it—he must have known that I had done so, for in that work I subject it to a somewhat prolonged examination (see pp. 80-91). It is quite true, however, that I did not make any attempt to criticize Lord Campbell’s arguments in The Shakespeare Problem Restated, and I have given my reasons for not doing so. When I published that book, it appeared to be an article of the "orthodox" Shakespearean faith that the poet was possessed of an unusual knowledge of law. Malone, Steevens, Ritson, Lord Campbell, Rushton, the Cowden Clarkes, Grant White, Mr. Castle, K.C., Professor Churton Collins, and many others of the "orthodox," had testified to the truth of this opinion; and even Sir Sidney Lee himself had written of "Shakespeare’s accurate use of legal terms, which deserves all the attention that has been paid to it."† There thus appeared to be a consensus of "orthodox" opinion on this matter, and my purpose, when I wrote my first book, was, accepting such "orthodox" opinion for the sake of argument, to see to what conclusion it would lead us with regard to the author of the plays and poems of [7] Shakespeare. All this I have explained fully in my last book,†† but Mr. Robertson sees fit to ignore what I there wrote in this connection. He has now, of course, given another shake to the kaleidoscope of Shakespearean criticism, and asserts that all these authorities were in error, and that the works of Shakespeare show the author not to have been possessed of any special legal knowledge whatsoever. Moreover, Sir Sidney Lee has now changed his tone, and tells us Lord Campbell has "greatly exaggerated Shakespeare’s legal knowledge." This being so, it would, no doubt, be well that the whole matter should be examined anew by a competent lawyer, and perhaps some day this may be done. I made no attempt in my last book to undertake that work, which would have demanded more time than I was able to give to it, and would have added many pages to a volume which, even as it is, sins, I fear, in the matter of length. I, therefore, wrote (Is There a Shakespeare Problem? p. 102) that, in view of the difficulty of finding "a legal arbitrator to whom this question can be submitted with confidence the safest course will be to consider the ‘Shakespeare Problem’ quite apart from this vexed question of Shakespeare’s legal knowledge,"††† which I, accordingly, proceeded to do. I further admitted that I should, certainly, not care to rest the theory that Shakespeare had the amount of legal knowledge which Lord Campbell ascribes to him simply on the "evidential passages" which he has presented to us, while at the same time deprecating the very large measure of scorn and contumely which Mr. Robertson has heaped upon the inferences which that learned Judge drew from them. Whereupon Mr. Robertson writes, more suo, that the legal case has hopelessly broken down, and "our time has been wasted by a forensic mystification." That, of course, is quite in the Robertsonian style, but it is not necessary to criticize the statement further, since I am not now arguing the question of Shakespeare’s legal [8] knowledge. I rather propose to set before the reader certain passages from Mr. Robertson’s work which demonstrate how little qualified he is to pronounce any opinion worth having upon that question. I beg the reader’s attention to the following:

Lord Campbell, in his book already referred to (p. 35), makes mention of Shakespeare’s use of the technical legal expressions "fine" and "recovery." Now, as every lawyer knows, although these terms are frequently coupled together by Shakespeare and other writers of his time, "fine" and "recovery" were very distinct forms of procedure. Both, however, were forms of collusive action, and both were habitually made use of, with the sanction of the Courts of Law (it was the Court of Common Pleas which had exclusive jurisdiction in all "real actions"), in order to evade the awkward consequences of the Statute of Westminster the Second, passed in the reign of Edward I, and better known as the Statute De Donis.

By that Statute it was enacted that land given to a man and the heirs of his body—i.e., for an estate in "fee tail"—should always descend according to the will of the donor; in other words, that those to whom the land was given should have no power to alienate it, so that it should always remain with their own issue after death, or revert to the donor or his heirs if such issue should fail. But this was soon found to give rise to an intolerable state of things, wherefore recourse was had to these collusive actions, whereby a tenant in tail was enabled to regain his right to alienate his land, either by "levying" a fine, or "suffering" a recovery, or sometimes, it may be, doing both. The judges, in fact, drove the proverbial coach-and-six through the Statute De Donis Conditionalibus.‡

Now, a "fine" was a very complicated form of procedure, [9] and those who wish to read more about it are respectfully referred to Kerr’s Blackstone, vol. ii, p. 350 (1862), where the various steps in the collusive action are set forth at length. What I would impress upon the lay reader is that the name "fine," as here used, is merely the translation of the Latin finis, and has nothing whatever to do with a money payment. The action was intended to put an end to all disputes concerning the land and, as we are informed by an ancient record of Parliament, 18 Edward I, "finis sic vocatur eo quod finis et consummatio omnium placitorum esse debet."‡‡ So too we read in the Statute 27 Edward I, c. i (1292): "Quia, fines in curia nostra levati finem litibus debent imponere et imponunt et ideo fines vocantur." I need say no more about it than that by a Statute of Henry VIII a "fine" levied by a tenant in tail acted as an immediate bar to his issue.

A "recovery" was, as already stated, a different form of procedure, and he who wishes to inform himself concerning it may be referred to the late Mr. Joshua Williams’s well-known work on the Law of Real Property, where he will find a brief and edifying description of the process of "vouching to warranty,"‡‡‡ and of "imparling the common vouchee." The following quotation supplies an explanation of the name "recovery":—"The judges, in construing the Statute (De Donis), had admitted a principle which afterwards gave a handle to overturn it altogether. It was held that if the tenant in tail disposed of the land, but left assets, or lands of equal value, to his issue, the issue were bound to abide by his alienation of the entailed lands but the principle of recompense in value was afterwards extended so as to bar the issue from asserting their rights to the entailed lands, if a mere judgment had been given entitling them to recover from some other person lands of equal value instead." By this process "not only were the issue (of [10] the tenant in tail) barred of their right, but the donor, who had made the grant, and to whom the lands were to revert on failure of issue, had his reversion barred at the same time. So also all estates which the donor might have given to other persons, expectant on the decease of the tenant in tail without issue (and which estates...are called remainders expectant on the estate tail), were equally barred. The demandant, in whose favour judgment was given, became possessed of an estate in fee simple in the lands; for in a recovery the lands were always claimed in fee simple, and the demandant, being a friend of the tenant in tail, of course disposed of the estate in fee simple according to his wishes."

With regard to "recoveries," Sheppard’s Touchstone says (p. 41): "This kind of assurance is in some respects better than a fine, for a fine will bar the heir in tail, but not (by its own operation or otherwise than by non-claim) him that is in the remainder or reversion; but a recovery will bar them all."

It is not necessary to consider here the somewhat different effects produced by a "fine" and "recovery" respectively with regard to the barring of claims, whether of issue, remaindermen, reversioners, or outsiders. It was, I apprehend, very seldom that both processes were resorted to in respect of the same property; but certainly, if this were done, it would "make assurance doubly sure."

I need only add that "fines" and "recoveries," besides being used to bar estates tail, and to bar dower, and to convey estates to married women, were extensively employed for the ordinary purpose of conveyance, and were regarded as the strongest possible forms of assurance.

__________

* Introductory, p. v. back

** Lit. Guide, February, 1916. My italics. back

*** Webster, in The Devil's Law Case, makes one of his characters say: "I must put in a strong caveat." Webster was not a lawyer, but I have little doubt that other lawyers of that day might use the expression "put in a caveat," as Bacon did. But in all the examples given in The Oxford Dictionary of the legal use of the word "caveat," including three of the seventeenth century, the term used is the technically correct one-viz., to "enter a caveat." back

† A Life of William Shakespeare. Illustrated Library Edition (1809), p. 30, citing Lord Campbell, Shakespeare's Legal Acquirements. back

†† See Is There a Shakespeare Problem? p. 4 et seq. back

††† A Life of William Shakespeare, New Edition, 1915, p. 43. back

‡ In Mr. Arthur Underhill's article on "Law," in Shakespeare's England which has been published since the above was in print, this appears, by an unfortunate oversight, as "de bonis conditionalibus" (vol. i, p. 404). For Mr. Underhill's opinion concerning Shakespeare's law, see note at the end of this chapter. back

‡‡ See Stephen's Comm. 8th edition, i, 564. Kerr's Blackstone (1862), vol. ii, p. 351. back

‡‡‡ Cf. Hamlet's reference to "double vouchers." back