Part Two - MR. ROBERTSON AS EXPONENT OF LAW

After this little legal excursus, which is, perhaps, not without some interest, I will revert to the passage in the Merry Wives of Windsor cited by Lord Campbell and commented upon by Mr. Robertson. In the Fourth Act (Se. ii, 219) Mrs. Ford says to Mrs. Page: "What think you? May we, with the warrant of womanhood, and the witness of a good conscience, pursue him with any further revenge?" [11]

To which Mrs. Page replies: "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."

The meaning of Mrs. Page’s remark, as I understand it, is this: Falstaff has had such a lesson that unless he has been made the devil’s absolute property by the very strongest of assurances—unless the devil owns him "in fee-simple," secured both by "fine" and "recovery"—he will never make an attempt upon us again.*

Now, Lord Campbell cited this passage, not because the mere employment by Shakespeare of the terms "fine and recovery" in any way advanced the proposition that he had an unusual knowledge of law, but because it appeared to show that he had "the recondite terms of the law" so constantly running in his head that he actually puts them into a lady’s mouth à propos of nothing, as it were, making her "pour them out in a confidential tête-à-tête with another lady."

But Mr. Robertson tells us that for all the legal terms and allusions to be found in Shakespeare he can produce parallels from contemporary dramatists who had had no legal training, just as striking and just as evidential of knowledge of law. In this particular instance, therefore, he produces (p. 41) the following "piece of dialogue between wooer and lady in one of Greene’s stories"—viz., The Card of Fancy.

"Yet Madame (quoth he) when the debt is confest there remaineth some hope of recovery...** The debt being due, he shall by constraint of law and his own confession (maugre his face) be forced to make restitution."

"Truth, Garydonius (quoth she), if he commence his action in a right case, and the plea he puts in prove not imperfect. But yet take this by the way, it is hard for that plaintiff to recover his costs where the defendant, being judge, sets down the sentence."

Whereupon Mr. Robertson asks (p. 41): "Shall we [12] pronounce that Greene wrote as he did because ‘his head was full of the recondite terms of the law’?"

Now, when I read this passage in Mr. Robertson’s book, I supposed that he intended to parallel Shakespeare’s use of the term "recovery," as in the passage referred to by him in the Merry Wives, by that word as it appears in the dialogue cited from Greene. And I was not singular in that idea, for a reviewer in The Nation (November 13, 1915), wrote, with reference to Mr. Robertson’s comments on the legal vocabulary in the Shakespeare plays:

"When Mr. Robertson avows the belief that any intelligent man could pick up this vocabulary, as it were, in the streets, he delivers himself into the enemy’s hand. When he quotes from Greene a passage about the I recovery of a debt as a parallel to Shakespeare’s reference to a ‘fine and recovery,’ he puts himself on a level with the index-maker who wrote on ‘Mill on Liberty and ditto on the Floss.’"

In reply to this, Mr. Robertson wrote (The Nation, January 1, 1916), that it was "sheer hallucination" on the part of the reviewer. The occurrence of the word "recovery" in the passage cited by him from Greene was, it seems, a mere coincidence. He only cited that passage "as showing ‘another lady’ talking in the legal vein which Campbell declared to be proof of the author’s ‘legal acquirements’ when put in a woman’s dialogue by Shakespeare."

Now, in the first place, Lord Campbell did not say that the words put by Shakespeare into the mouth of Mrs. Page are "proof of the author’s legal acquirements." He merely adduced them as evidentiary of the fact that "Shakespeare’s head was full of the recondite terms of the law." But the misfortune in connection with Mr. Robertson’s explanation is that the first part of his quotation from Greene is not spoken by a lady, but by a man, and is, therefore, quite irrelevant to his argument as he now puts it.

What, then, as to the lady’s part of the dialogue? What "recondite terms of the law" does it contain? [13] Well, we have "action," "case," "plea," "plaintiff," "costs," "defendant," "judge," and "sentence." So Mr. Robertson imagines that these are "recondite terms of the law," fittingly paralleled with such highly technical terms as "fine" and "recovery"! Is it possible that he is ignorant of the fact that these terms used by his "lady" are quite ordinary commonplace terms of everyday life, the occurrence of which in any woman’s mouth, gentle or simple, is indicative of no "legal acquirements" whatsoever?

But perhaps Mr. Robertson would say that he quoted the man’s part of the dialogue merely because it led up to the answering words of the lady. If so, I reply that this makes his case even weaker, if that be possible, than it was before, because it is not at all surprising that a lady should make use of these ordinary terms concerning an action at law if the male party to the dialogue introduces the subject, and so leads up to them. The point in Mrs. Page’s case is that the legal terms are uttered by her spontaneously, and, indeed, not a little inappropriately.

But let us turn to another instance of Mr. Robertson’s application of his method of parallelism. At p. 46 of his book, The Baconian Heresy, he writes as follows:

"‘Fine and recovery’ occurs again in the Comedy of Errors (ii, 2); and this time we are told [by Lord Campbell] that the puns extracted from the terms ‘show the author to be very familiar with some of the most abstruse proceedings in English jurisprudence.’ The same deep knowledge is doubtless to be credited to Nashe, who writes of ‘suing the least action of recovery’ and ‘a writ of Ejectione firma.’"

Mr. Robertson, therefore, cites Nashe as employing, in the passage referred to, the technical legal term "recovery," and sarcastically says that he, therefore, "is doubtless to be credited" with "the same deep knowledge," for whatever knowledge is to be ascribed to Shakespeare when he makes use of the term "recovery" must, of course, be ascribed to Nashe also when he makes use of the same term. I may here again remark in passing [14] that Lord Campbell does not infer "deep knowledge" on Shakespeare’s part from his use of the terms "fine and recovery," but only that he was "familiar with some of the most abstruse proceedings in English jurisprudence." Let us see, however, what it is that Nashe really says. The passage is to be found in a prose piece called "Nashe’s Lenten Stuffe" (1599), containing a description of the town of Great Yarmouth, "with a new Play never played before, of the praise of the Red Herring." Here be writes of Great Yarmouth that it is "out of an hill or heape of sande, reared and enforced from the sea most miraculously, and by the singular pollicy and incessant inestimable expence of the Inhabitantes, so firmly piled and vampiered against the fumish waves battry, or suying the least action of recoverie, that it is more conjecturall of the twaine, the land with a writ of Ejectione firma, wil get the upperhande of the ocean, than the ocean one crowes skip prevaile against the Continent."†

Now, here there can be no possibility of evasion. Here it is plain that Mr. Robertson supposes that the "recovery" alluded to by Nashe is the same as that of which Shakespeare makes mention in the expression "fine and recovery." But, unfortunately, it is not so. Nashe tells us that at Great Yarmouth there is no chance of the sea "suing the least action of recovery" against the land, where the allusion obviously is, not to "suffering a recovery," but to the ordinary action for the recovery of land! It is more probable, Nashe says, that the land will "prevail over the ocean" with a writ of Ejectione firma or of Ejectio firma, whichever be the true reading. How Mr. Robertson can imagine that this allusion to the writ in question in any way helps his case I am at a loss to conceive. But the point is, that he evidently was ignorant of the meaning of the term "recovery" as used by Shakespeare in the passage to which Lord Campbell refers. [15]

But let us continue the quotation:

"‘Fine,’ as it happens," writes Mr. Robertson, "is a common figure in the drama of Shakespeare’s day. Bellafront, in Dekker’s Honest Whore (Part II, iv, 1), speaks of

From Mall, in Porter’s Two Angry Women of Abington (iii, 2) we have:

And Mr. Robertson adds: "There is nothing more technical in the Comedy of Errors"! (My italics.)

Upon this I wrote (The Nation, January 8, 1916): "Now, no lawyer needs to be told that the word ‘fine,’ as used in the expression ‘fine and recovery,’ means an obsolete method of transferring land by means of a fictitious action. It was finis et consummatio omnium, placitorum, (18 Edw. I.), and has nothing whatever to do with a money payment. Yet, as parallel with this technical legal term, as used by Shakespeare, Mr. Robertson, in order to show what ‘a common figure’ the term is ‘in the drama of Shakespeare’s day,’ cites two passages where the word is used in its ordinary meaning of a payment of money, as in the case of a premium on a lease."

What was Mr. Robertson’s reply to that? It was all my mistake. I was "merely repeating the blunder of a previous legal critic"—a blunder which he had already "exposed"! For, says Mr. Robertson, "the use of ‘fine’ was not put by me (in the passages cited) as the equivalent of the phrase ‘fine and recovery’" (The Nation, January 22, 1916).

Here, then, is another "exposure"! Well, let us quietly examine it. "‘Fine,’ as it happens," writes Mr. Robertson, à propos of the expression "fine and recovery," "is a common figure in the drama of Shakespeare’s day," and he thereupon proceeds to give us some examples. Now, it is clear that these examples are irrelevant unless [16] they are examples of the word used in the same technical sense as that in which Shakespeare uses it. The natural inference, therefore—and I am entirely convinced the true inference—is that the examples of the word "fine" taken by him from Dekker and Porter were meant as examples of the word as it is used by Shakespeare. "Oh dear no," cries Mr. Robertson, when confronted with this absurd blunder, "the use of ‘fine’ was not put by me as the equivalent of the phrase ‘fine and recovery’"—where we note in passing that he evidently supposes that "fine and recovery" are one and the same thing, for how otherwise could the word "fine" be "equivalent to the phrase ‘fine and recovery’"?

We are reduced to this, then. Mr. Robertson quotes instances of the use of the word "fine," by Dekker and Porter, not in its technical legal sense, but in its ordinary sense of a money payment, and observes that, "as it happens," the word in this sense is a common figure in the drama of Shakespeare’s day"! Well, who denies it? I do not know why Mr. Robertson should speak of it as a "figure"; but if he merely means, as he now says he does, that the word "fine," in its ordinary sense of a money payment, is of common occurrence in the drama of Shakespeare’s day, he speaks undoubted truth, though what importance he attaches to it, and why he should think it necessary to inform us of this well-known fact, I am at a loss to conceive.

But then, unfortunately, he adds: "There is nothing more technical in the ‘Comedy of Errors’"! What on earth is the meaning of that? "Fine," as used by Shakespeare in the expression "fine and recovery," is certainly a highly technical term. But "fine" in the ordinary sense of a money payment is not a technical term at all. What, then, is the meaning of Mr. Robertson’s amazing assertion?

I think the answer is a very simple one. Mr. Robertson’s attempted explanation is "gross as a mountain, open, palpable." But if he was ignorant of the real meaning of the technical legal terms "fine" and "recovery," it was not unnatural that he should [17] imagine he could "parallel" the use of the word "fine" in the Comedy of Errors by the examples which he has so ingenuously taken from Dekker and Porter. Et voilà tout! to use his own expression. Here is another "exposure" indeed!

Mr. Robertson writes in the Literary Guide, when confronted with his citation of the word "fine," as though it were a parallel to the word as used by Shakespeare in the expression "fine and recovery": "Again and again I have ‘paralleled’ legal phrases with absolutely different ones. The point is that the one set is as much evidence for legal knowledge or training as the other." So that, having paralleled "fine" as in "fine and recovery" with fine in an "absolutely different" sense (as he now tells us), he asks us to believe that the word in its ordinary sense of a money payment is "as much evidence for legal knowledge or training" as the word in its technical legal sense!

Now, it would, in my judgment, be absurd to put forward the mere use of the expression "fine and recovery" as "evidence for legal knowledge or training"; but the word "fine," so used, is, certainly, a highly technical term, whereas in the sense in which it is employed by Dekker and Porter, in the passages cited, it is not a technical term at all. Mr. Robertson, therefore, has here paralleled a "legal phrase" with a word which is not only "absolutely different" (except, indeed, in sound and spelling), but which is not even a technical term, or, indeed, an expression peculiar to the law!

But such are Mr. Robertson’s parallelisms. Having no knowledge of law, he cannot discriminate between a really technical legal expression, such as might, possibly, be evidentiary of the "legal acquirements" of the writer, and a phrase which, though it may have some legal flavour about it, is yet but a commonplace every-day expression, from which no such inference can be drawn—such, for instance, as those he cites from Greene, Porter, and Dekker. [18]

Here is yet another citation from the latter dramatist. Mr. Robertson asks us (p. 41): "What, again, shall we say of the passage in Dekker’s Honest Whore (Pt. 1, iv, 1), in which Hippolito points to the portrait of Infelice as

and Bellafront replies

And thereupon Mr. Robertson asks: "Must Dekker, too, be a lawyer?" And gravely adds: "The reader has already begun, perhaps, to realize that lawyership‡ is out of the question!" He is annoyed with me because I exclaim upon this: "Di Magni, that our time should be wasted by such solemn nonsense!" But what can one say as to such absurdities? For the above quotation from Dekker contains absolutely nothing to suggest that Dekker had any technical legal knowledge whatsoever.

Such, I repeat, are Mr. Robertson’s supposed legal parallelisms. They impress those who merely turn over his pages by their multitude, and those who are ignorant of law by their assumption of learning. But attacks in massed formation are singularly ineffective when the masses are made up of such sorry soldiers as Falstaff’s "tattered prodigals" when he was thought to have "unloaded all the gibbets and pressed the dead bodies." In other words, the mere multiplication of supposed parallels which have no real cogency or application is an entirely futile proceeding.

___________

* Mrs. Ford here interpolates the words "in the way of waste," perhaps with a sous-entendu, and an allusion to the legal doctrine of "waste"; but the words are somewhat obscure. back

** My italics. back

† I quote from Grosart's Edition of Nashe's Prose Works (1883-84), vol. v, p. 201. In Charles Hindley's Edition (Old Book Collectors' Miscellany), vol. i, p. 7, we read, instead of "a writ of Ejectione firma," "the writ of an Ejectio firma." back

‡ He means, I suppose, any exceptional knowledge of law on Shakespeare's part. back