SHAKESPEARE LAW LIBRARY
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Part Four - MR. ROBERTSON AS EXPONENT OF LAW
Take another of Mr. Devecmon’s cases—a very interesting and instructive one, as it seems to me. Queen Katherine, in Henry VIII (Act II, Sc. IV), says to Wolsey:
I do believe,
Whereupon, says the learned Mr. Devecmon—and Mr. Robertson, of course, blindly follows his "ally"—"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 another instance of "bad law" on Shakespeare’s part.
Now, here I thought it was sufficient to reply that the word "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 authority of the Pope, the real judge), a term which in strict legal usage is properly applicable only to a juror. I further commented 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 a correspondent, learned in ecclesiastical law, has pointed out to me that there is much more to be said. The question of Katherine’s divorce was, of course, not tried 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), if he were akin to the plaintiff (consuanguineus illius qui litteras impetravit), or if he had previously acted as counsel in the case (in eodem negotio advocati officio functus), or if he were an enemy of the defendant, or for some other just cause.
Katherine, therefore, acted strictly within her rights in challenging Wolsey ("challenge" here standing for "recusare") because she believed him her enemy. But in excepting to, or "challenging," the judge as suspectus the defendant was bound to state his reasons before him (coram eodem), and then the judge and the defendant each chose an arbiter, which two select a third, and these three decide the validity of the objection, the verdict of the majority prevailing.
Wolsey denies the accusation, tells the Queen to put such notions away from her, and will not admit the objection. This was provided for in 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.
"The word ‘recusare’," writes my correspondent, "means to ‘challenge’ or object to, or lodge a protest against, in legal use, and as the process recusandi iudicem is practically the same as challenging a juror in temporal  cases, it is natural to translate the word by ‘challenge.’ In any case, I question whether there ever were technical vernacular terms for the Latin technical terms in use in the Church Courts. There is no doubt that the author of this part of King Henry VIII, whoever he was, was acquainted with the correct procedure of the ecclesiastical courts, and has stated it accurately in this scene, and, therefore, that this passage cannot be advanced as an instance of Shakespeare’s lack of legal knowledge. On the contrary, it would seem to have been exceptional—above even Mr. Devecmon’s!"*
One could hardly have a more instructive example than the above of the dangers that lie in wait not only for the layman, but for the lawyer himself, unless he be equipped with all-round legal training, when he essays to criticize Shakespeare’s use of legal terms. In any view, I venture to say that to base a case for Shakespeare’s ignorance of law on the use by Queen Katherine of the word "challenge" was absurd; but here it is demonstrated by one who has knowledge of the old Canon Law that this passage of Henry VIII really raises an inference to the very contrary effect.**
Sir Sidney Lee, in his new edition of A Life of Shakespeare,*** refers us to Mr. Charles Allen’s Notes on the Bacon-Shakespeare Question (Boston, 1900), as showing "the true state of the case" with regard to the question of Shakespeare’s knowledge of law, which he says has been "greatly exaggerated." It is sufficient to say here that this author not only falls into the blunder concerning, Shylock’s "single bond" (p. 132), but actually cites Shakespeare’s use of the word "statutes" in Love’s Labour’s Lost (I, i, 15) as an example of our great poet’s ignorance:
Whereupon this sapient critic observes: "a statute imports a legislative act...The word seems to be used inaccurately for vows or resolves."**** Could stupidity and ignorance go further? This learned gentleman had, it seems, never heard of the "statutes" of a College or of a Cathedral—to say nothing of "statutes merchant" and "statutes staple"! Yet it is to such a witness as this that Sir Sidney Lee appeals by way of settling the question of Shakespeare’s knowledge of law!
Mr. Devecmon had, previously, taken the same ridiculous objection. "A statute is an Act of the legislature." Shakespeare, therefore, was ignorant of law! This is too much even for Mr. Robertson, who opines that his "ally is in the wrong for once" here. Sir Sidney Lee, by the way, says of recent sceptical writers, with regard to the "Stratfordian authorship," that "they have been for the most part lawyers who lack the required literary training to give their work on the subject any genuine authority." (Work cited, p. 655.) But what of "literary" men who lack the required legal training to give their opinion on the subject of Shakespeare’s law "any genuine authority?" Sir Sidney appears to imagine that the "literary" man untrained in law is quite competent to pronounce on this matter.
I now come to deal with Mr. Robertson’s wonderful discovery concerning the word "purchase." Hitherto it has been supposed by lawyers that there is a special legal sense of that word; and critics have noted that Shakespeare has on several occasions, as they fondly imagined, made use of the word in that special legal sense. Mr. Robertson, however, now tells us that this is a delusion. There is no "legal" sense of the word. "The philological  fact is that the sense of ‘acquisition,’ ‘a thing got,’ is the fundamental meaning of the word ‘purchase,’ of which the starting-point is the idea of the chase (Fr. pourchasser), the product of hunting or foraging. It is the idea of buying that is secondary, though that is now become the normal force of the word." So far, so good. The only criticism one has to make here is that what Mr. Robertson says, however true, is by no means new. But let us see how he proceeds. "That is to say, that the so-called ‘legal’ meaning of ‘acquisition of property by one’s personal action as distinct from inheritance’ is the original meaning, and is the likely sense of the word in the whole feudal period." And he further tells us that this "original and general sense is the ‘legal’" sense.
Now, I was at first puzzled to know whence Mr. Robertson takes his definition of "the so-called ‘legal’ meaning" of the word "purchase," which he marks as a quotation. I find, however, in the Oxford Dictionary, under the word "purchase," the following: "(5) Law. The acquirement of property by one’s personal action as distinct from inheritance." So that perhaps I should not be wrong in assuming that Mr. Robertson has taken his definition from that source. Now, the Oxford Dictionary is generally a pretty safe guide; but in this instance it is not so, for the definition is obviously inadequate. In the first place, for "property" we ought to read "real property," or "land," seeing that the term "purchase," in the "legal" sense, has no application to "personal" property. And, secondly, one may take land by "purchase," in the "legal" sense, without any "personal action" of one’s own, for "purchaser," in the "legal" sense, includes those who have received land as a gift, or upon whom it has been settled before they were born, and even heirs-at-law, who would otherwise have inherited, if they take by a devise not in accordance with the course of descents. If Mr. Robertson had looked further down in the Oxford Dictionary, under the word  "purchase," supposing he consulted it on this point, he would have found the following quoted from Wharton’s Law Lexicon: "An acquisition of land in any lawful manner, other than by descent or the mere act of law, and includes escheat, occupancy, prescription, forfeiture, and alienation"; and under "purchaser" he would have found this quotation from Blackstone’s Commentaries: "The first purchaser...is he who first acquired the estate to his family, whether the same was transferred to him by sale, or by gift, or by any other method, except only that of descent...If I give land freely to another, he is in the eye of the law a purchaser." Or, turning to Williams on Real Property (21st edition, p. 227), he might have read: "The word purchase has in law a meaning more extended than its ordinary sense: it is possession to which a man cometh not by title of descent: a devisee under a will is accordingly a purchaser in law." (See Chapter IX, "On the Descent of an Estate in Fee Simple.")
But Mr. Robertson, I repeat, tells us that this is all a delusion, because there is no "legal" sense of the word purchase; "the so-called ‘legal’ meaning" is just the original meaning. "Equally complete," he writes in the Literary Guide (January, 1916), "is the collapse of the case founded by Mr. Grant White on the use of the word ‘purchase,’ and adopted by Mr. Greenwood." But the case was not "founded by Mr. Grant White." Malone, himself a lawyer, had noticed the use by Shakespeare of the word "purchase" in the "legal" sense, and gives an example of it from Henry IV, Pt. II, Act iv, Sc. v, 1. 200:
Whereupon, says Malone, "Purchase is here used in its strict legal sense, in contradistinction to an acquisition by descent." (See Boswell’s Malone, vol. ii, p. 108, 1821.)
Again, we have an example in Antony and Cleopatra (Act i, Scene iv), where Lepidus, as Lord Campbell says, "in trying to palliate the bad qualities and misdeeds of  Antony, uses the language of a conveyancer’s chambers in Lincoln’s Inn":
Now, it is evident that Mr. Robertson has gone "clean off the rails"; first, because he has adopted a wrong definition of the word "purchase," and, secondly, because he has attached a wrong meaning to the word "legal" in a definition given by Mr. Grant White. That critic wrote: "Take the word ‘purchase,’ for instance, which in ordinary use means to acquire by giving value, but applies in law to all legal modes of obtaining property except by inheritance or descent." He would have done better if he had written "modes of obtaining property by any lawful manner" (as in Wharton’s Law Lexicon) instead of "legal modes," and if he had written "land" instead of "property." Mr. Robertson is greatly perturbed at the word "legal." He seems to think it begs the question. "There was no more a ‘legal’ sense of the term ‘purchase’ than there was or is of the term ‘property’ or ‘obtain’: the law simply discriminated, on legal lines, between right or wrong modes of ‘purchase.’ To pick out cases in the plays in which ‘purchase’ means lawful acquisition is thus pure mystification." This appears to me to betray a total misapprehension of the point. Nobody, so far as I know, desires "to pick out cases in the plays in which ‘purchase’ means lawful acquisition." The acquisition must, of course, have been lawful, otherwise it would not be recognized as "purchase"; but the examples "picked out" are those where Shakespeare has used the term "purchase" in an analogous sense to that employed by the lawyer who uses it with reference to land acquired "in any lawful manner other than by descent or the mere act of law." In consequence of his ignorance of this legal use, Mr. Robertson seems to think  that the above quotations from Henry IV and Antony and Cleopatra can be paralleled by such a passage as this, for instance, from Beaumont and Fletcher:
where he tells us, truly enough, that "purchased" means "acquired," so that, apparently, wherever "purchase" occurs in the sense of "acquire" we have a parallel to those two passages cited from Shakespeare. "Mr. White," he writes, "is merely mystifying us in his assertion that the ‘legal’ sense of ‘purchase’ occurs only once in Beaumont and Fletcher’s fifty-four dramas. In its original and general sense, which is the ‘legal,’ it occurs twice in one of their plays and it occurs repeatedly in others by the same authors." He then proceeds to give us numerous examples of the word in its ordinary sense of to "acquire"!
If Mr. Robertson is right, therefore, the writers of legal text-books need no longer trouble themselves to explain "the legal meaning of the word purchase," for the legal meaning is just the ordinary meaning, and if I say that I have "purchased" a sack of potatoes I have used the term just as much, and just as little, in a "legal" sense as that in which Shakespeare uses it in the quotations above set forth. Yet, surely, any reasonable being can see that when the King who has usurped the crown says to the Prince of Wales, who will take it by inheritance:
he uses the term with a special sense not to be found in the examples paraded by Mr. Robertson as parallels!
What, then, is the point of difference? It is this. When "purchase" is used in the "legal" sense there is always the contrast between acquisition by such means as are recognized by the law as "purchase," and acquisition by "inheritance." Therefore, "purchase," when used in the "legal" sense, must always be used with regard to land, or, as in Henry IV, of a title which descends like land, or metaphorically, as a poet might  use it, and as Shakespeare does use it (in Antony and Cleopatra—e.g.), as though he were a lawyer speaking of land—"hereditary rather than purchas’d." Now, potatoes do not descend as land does according to the canons of inheritance, and therefore if I speak of "purchasing" a sack of potatoes I do not use the term in the "legal" sense; and this remark applies, mutatis mutandis, to Mr. Robertson’s instances from Beaumont and Fletcher at p. 100 of his book, such as, to take an example:
All you shall wear or touch or see is purchased
By lawless force.
The things alluded to here are personal property, and there is no contrast between the acquisition of them by "purchase" and the acquisition of them by descent, for they, like potatoes, do not descend in the manner in which land descends. Therefore, no lawyer would say there is a "legal" use of the term here, or that the examples cited are in any way "parallels" to those above quoted from Shakespeare. It is through ignoring this elementary distinction that Mr. Robertson has gone so painfully astray. His "parallels" are, in fact, ridiculous.
I would just note, in passing, that I do not now stop to inquire whether the use of the word "purchase" by Shakespeare in its "legal" sense is of any importance with reference to the question of Shakespeare’s knowledge of law. I am only concerned with Mr. Robertson’s curious contention that the word has no special "legal" sense, as to which I will only say that if he had consulted any competent lawyer before raising it he would have been preserved from grievous error.
Note to Chapter 1
 Mr. Arthur Underhill, in his article on "Law" in Shakespeare’s England (published since the above was in print), writes that Shakespeare’s "knowledge of law was neither profound nor accurate." Mr. Underhill is one of the conveyancing counsel to the High Court of Justice, and his opinion, especially on Conveyancing and Real Property Law, is certainly entitled to much respect. He does not, however, give any arguments in support of his pronouncement, with the sole exception that Shakespeare, in All’s Well that Ends Well, alludes "incorrectly" to the law of Wardship and Marriage. I claim to have shown, however, that there is really no "incorrectness" here on Shakespeare’s part (see above p. 22). Mr. Underhill, further, remarks on Shakespeare’s "allusions" to "fines" and "recoveries," which he says, "seemed to Lord Campbell to infer profound knowledge of the abstruse 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." But whence has Mr. Underhill, who gives no reference taken the words which he has marked as a quotation? I cannot find them in Lord Campbell’s book, though with regard to the passage in the Comedy of Errors, to which I have referred above, he writes that the jests "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." Moreover, allusions cannot "infer" knowledge, though one may infer knowledge from allusions! It cannot, by the way, be suggested that "fines" and "recoveries" would have seemed "profound and difficult" to Lord Campbell, because they had "become archaic and unfamiliar," seeing that these collusive actions were part of our normal legal procedure for upwards of fifty years of his Lordship’s life, not having been abolished till 1833, when he held the office of Solicitor General. For the rest, I note that Mr.  Underhill apparently considers all the plays published in the Folio as undoubtedly "Shakespearean," alluding to The Taming of the Shrew and 2 Henry VI as though there were no question as to their authorship. This, as I have already said, appears to me to be a dangerous and uncritical proceeding. Finally, Mr. Underhill refers us to Charles Allen’s Notes on the Bacon-Shakespeare Question, a work which, as I have already shown, goes woefully wrong on the matter of Shakespeare’s law.
* Ample authority for this can be found in the Corpus Juris Canonici. See the Decretals of Gregory IX, which I would quote in extenso did space permit. back
** I must express my obligation to Mr. Cuthbert Atchley, of Clifton, for calling my attention to the Canon Law in this matter, and providing me with many references. back
*** P. 43 note, and p. 655. back
**** Work cited, p. 128. back
Let me here "enter a caveat" with regard to this question. When discussing the legal terms and phrases used by Shakespeare we ought, obviously, to confine ourselves to really "Shakespearean" plays. I should, therefore, rule out Henry VI, Pt. I, and by far the greater portion of Parts II and III; also Titus Andronicus, The Taming of the Shrew, and parts of other plays, such as Timon of Athens, Pericles, Henry VIII, and Troilus and Cressida. back
See Shakespeare as a Lawyer, by Franklin Fiske Heard (1883), quoted in Is There a Shakespeare Problem? at p. 71. back
The Baconian Heresy, p.101. back
Ibid., p. 99. back
See Stephen's Comm., 8th Ed. i, 383, where the author gives a quotation from Co. Litt. 18 b, instancing certain wrongful modes of acquisition, and laying down that they are not "purchase." back
The Baconian Heresy, p. 99. back
Mr. Charles Allen, in his Notes on the Bacon-Shakespeare Question (1900)—a work referred to by Sir Sidney Lee, in his last edition of A Life of Shakespeare, as supporting the contention that Shakespeare's knowledge of law has been "much exaggerated"—does not question the fact that there is a "legal" meaning of the word "purchase," and, after quoting the examples from Shakespeare above cited, he remarks: "Instances of a like use of this word by other writers are certainly infrequent." He adds: "The instance in Beaumont and Fletcher, referred to by White, was, perhaps, the following passage in The Laws of Candy:
Here we have the contrast between inherited honours and honours obtained by purchase. Beaumont, it may be remembered, was a lawyer. See work cited, p. 47. back
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