Part Three - Shakespeare as a Lawyer

But Judge Willis has yet another case. "I have heard my friend Dr. Sibbes ask whether the congregation had a ‘freehold’ in the love of God or whether they were only ‘tenants at will,’ and whether they held all they possessed in capite of God."

Now who was Richard Sibbes? He was educated at the Grammar School, Bury St. Edmunds, was a scholar of St. John’s College, Cambridge, was, in 1617, chosen preacher at Gray’s Inn; and became, in 1623, Master of St. Catherine’s College, Cambridge, but still retained his post at Gray’s Inn, where he died in 1635. He was a friend of Sir Henry Yelverton, who succeeded Bacon as Solicitor-General, and it was through Yelverton’s influence that he was chosen preacher at the most celebrated of the Inns of Court (as Gray’s Inn then was), which counted, by the way, both Bacon and Southampton among its members. That this learned man, preacher at Gray’s Inn and friend [395] and companion of lawyers, should have thought it appropriate to address lawyers in some of their own jargon, taking, perhaps, a little pride in showing that he had acquired some familiarity with legal terminology, is, certainly, not very remarkable.

Mr. Willis cites yet a third case, that of the Dean of Worcester, who, "when preaching from ‘Buy the truth,"’ exclaimed, "Here, my friends, is a bargain and sale," which, says Mr. Willis, through the imaginary mouth of Jonson, is "highly technical." Then the Dean, as quoted by Mr. Willis, goes on to say that "in every bargain and sale there must be a thing, a subject, which the writers on Roman law called ‘merx.’"

I confess I do not know anything about the Dean of Worcester, cited by Mr. Willis, nor have I taken the trouble to inquire. I cannot think that the occasional legal language of those learned divines (two of whom I have shown to have been specially associated with lawyers) furnishes any analogy with the case of Shakespeare. It is not a question of the mere use of legal phrases or maxims, such as "acknowledging a fine," "a writ ad melius inquirendum," "non est inventus," "noverint universi," "seised," "volenti non fit injuria," "tenants at will," "tenants in capite," "bargain and sale," and the like. The question is, whether Shakespeare, when we consider his works as a whole, does not exhibit such a sound and accurate knowledge of law, such a familiarity with legal life and customs, as could not possibly have been acquired (or "picked up") by the Stratford player; whether it be not the fact, as Richard Grant White puts it, that "legal phrases flow from his pen as part of his vocabulary, and parcel of his thought"? It is not to the purpose to compile mere lists of legal terms and expressions from the pages of other Elizabethan writers, and those who do so simply display an ignoratio elenchi, as the old philosophers would say. [396]

Meantime we again note the edifying divergence of opinion which exists among the Stratfordians. We may be content to leave Mr. Lee and Judge Willis to fight it out with Mr. Churton Collins, to say nothing of the older critics such as Malone, the Cowden Clarkes, Grant White, Gerald Massey, and others.

I cannot conclude this chapter without adverting to some curious remarks made by Mr. J. M. Robertson, in his work on Titus Andronicus (p. 54), with regard to Mr. Collins’s essay on the law of Shakespeare. "The general thesis as to Shakespeare’s legal knowledge or proclivities," writes Mr. Robertson, "maintained by Professor Collins in a special essay, ‘Was Shakespeare a lawyer?’ in his volume of Studies in Shakespeare, was exhaustively dealt with five years before by Mr. Devecmon in a treatise to which the Professor makes no allusion." Now Mr. Devecmon’s book is a little volume of fifty-one pages, and how a critic like Mr. Robertson can describe it as an exhaustive dealing with the subject I am at a loss to understand. To do the author justice, although he imagines he has shown "that Shakespeare had no knowledge of the technique of the law, and no just appreciation of those fundamental principles of justice which are the basis of the law," he owns that this has been done "in a very brief and imperfect way." To me, the book, so far from being an "exhaustive" treatise, appears not only inadequate and superficial, but altogether erroneous and misleading. "There was," says Mr. Devecmon, "a fortnightly court held at Stratford-on-Avon," and it appears that that worthy marksman, John Shakspere, or Shaxpere (as Walter Roche, ex-master of the Grammar School, spelt the name),* was not unfrequently before it, usually as defendant in some petty action of debt, though the first time we have mention of him, in 1552, he comes before the court charged, jointly with [397] Humphrey Reynoldes and Adrian Quiney, with having caused a nuisance by making a dung-heap in Henley Street, to which charge it appears they pleaded guilty.** Therefore, says Mr. Devecmon, "his son, the future poet, was thus brought up in an atmosphere of litigation," and "from these circumstances it can readily be seen how Shakespeare acquired his extensive knowledge of legal expressions, and his love of litigation which involved him in almost as many lawsuits as his father." One wonders what sort of an idea Mr. Devecmon, "of the Maryland Bar," had formed of this little "fortnightly court" in squalid Stratford! He speaks in grandiose fashion of "the arguments of the lawyers, the verdicts of the juries, and the judgments of the court," as though Coke had been sitting on the Bench with learned counsel pleading before him in some great civil or criminal cause. One might as well imagine Shakespeare getting his law from Mr. Nupkins, and his legal terminology from a court of pie poudre.

That any man after even the most cursory perusal of the Plays and Poems should imagine that Shakespeare’s knowledge of law and lawyers was derived from such a tribunal as this, seems to me not a little extraordinary; that a lawyer should so conceive is more extraordinary still.

But then, says Mr. Robertson, Mr. Devecmon points out that in Webster’s The Devil’s Law Case there are "more legal expressions (some of them highly technical, and all correctly used) than are to be found in any single one of Shakespeare’s works." Now if this statement were true, the answer would be that the subject of the play is a "Law Case," and that, therefore, the work was naturally full of legal expressions, and, further, that doubtless the brilliant author had well got up his subject for the purposes of the drama; whereas the proposition concerning [398] Shakespeare is that his knowledge not only of legal terminology, but of legal principles and of the habits and customs of lawyers, had become so much a part of his life and character and mental equipment that it was always showing itself even when very little appropriate to the subject on hand.***

But the fact is that the statement as to The Devil’s Law Case is not only not true, but so preposterously contrary to the truth that one can hardly believe that Mr. Devecmon had read the drama in question. There is, incredible as it may sound, practically no law at all in Webster’s play! There are, indeed, a few legal terms such as "livery and seisin,"**** "a caveat," "tenements," "executors," thrown in here and there, and there is an absurd travesty of a trial where each and everybody—judge, counsel, witness, or spectator—seems to put in a word or two just as it pleases him; but to say that there are "more legal expressions" in the play "(and some of them highly technical and all correctly used) than are to be found in any single one of Shakespeare’s works" is an astounding perversion of the fact, as any reader can see who chooses to peruse Webster’s not very delicate drama. I cannot but think that Mr. Robertson had either not read the play, or had forgotten it when he quoted this amazing passage.

And now let us see what is Mr. Devecmon’s own opinion as to Shakespeare’s law. We have seen how he imagines that it had its origin in the little provincial court of squalid and illiterate Stratford, but he conceives (p. 5) that the poet supplemented it afterwards in London at drinking bouts in taverns such as "The Mermaid," with actors and "lawyer-playwrights," and also by looking in at the law [399] courts. "But legal expressions are highly technical, and when Shakespeare attended those feasts of the law in courts and in gatherings of attorneys, and carried away scraps [my italics] it is not at all surprising that he should occasionally commit an error when he used them so frequently." Shakespeare, in fact, according to this theory, "picked up" his legal knowledge by "scraps"; but "when in a comparatively few instances, his applications of law terms are so highly technical and so correctly given as to suggest a lawyer’s touch, can we not readily believe that here he took advice of some lawyer friend?"

Mr. Devecmon then proceeds to give us some instances of Shakespeare’s "inaccuracy in the use of law terms," which he would have us think are fatal to the argument that the great poet had any real knowledge of law. Thus he quotes Richard III, Act IV, Scene 4, 247, where Queen Elizabeth asks of Richard:

But, observes Mr. Devecmon, "Dignities and honours could not be demised," and he cites Comyn’s Digest, Tit. Dignity (E), in support of the proposition. "Q.E.D."

Let us consider this a little more closely. In the first place, I am not aware that it has ever been asserted 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. But there is a good deal more to be said than this. What is it that that excellent old work known to all lawyers as Comyn’s Digest really tells us? That "a dignity or nobility cannot be aliened or transferred to another." Not a very unreasonable proposition! If the king grants a title or "dignity" to a subject, it is natural enough that the grantee should not have the power to assign it away to another (perhaps for a round sum down), [400] or to put it up to auction. Therefore the Queen is right, prima facie at any rate, when she suggests to Richard that he has no power to "demise" any dignity or honour to a child of hers. Where is the legal error here? But there is this further observation to be made. 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." (Comyn’s Dig., ad loc.) Therefore the error is entirely on the side of Mr. Devecmon.†

Let us take another instance. Queen Catherine, in Henry VIII, Act II, Scene 4, says to Wolsey:

But, says Mr. Devecmon, "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." Here the same curious idea is apparent, viz. 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, apart from this, it really seems to me no better than solemn trifling to argue from such an expression put into the Queen’s mouth that the writer had no accurate knowledge of law. "Challenge" was constantly used in the sense of "objection," and 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 Catherine should apply, by a very natural analogy, to one of the Cardinals who were to act as judges in the case, a term which, in strict legal usage, was properly applicable only to a juror.†† [401] It would be quite as much to the purpose were I to accuse John Webster (who, according to Mr. Devecmon, is always correct in his legal terminology) of inaccuracy because in The Devil’s Law Case he makes Contarino say, "I sent you the evidence of the piece of land, I motion’d to you for sale"; instead of saying "the deeds"! What next? Well, Hamlet says (Act IV, Scene 2):

Besides, to be demanded of a sponge! What replication should be made by the son of a King?

Why, says Mr. Devecmon, "a very few days, or at most, weeks of practical training in a lawyer’s office would have sufficed to teach Shakespeare that this is an incorrect use of the word replication. The plaintiff makes his demand on the defendant by a narratio or declaration; the defendant replies by a plea; and the plaintiff’s reply to this plea is called a replication. Certainly comment is here unnecessary."

On the contrary, comment is very necessary. Certainly, in pleading, a "replication" is the document which answered to the modern "reply," and was put in by the plaintiff; but even here it was not always so, for in actions of Replevin it was the defendant who put in a "replication" to the plaintiff’s plea in bar; so, not even if we are to take the word (absurdly enough) as used in a technical legal sense, is Mr. Devecmon correct. But the fact is that "replication" was constantly used in ordinary parlance in the sense of "reply." Thus in Julius Caesar (Act I, Scene 1, 50) we have it of an echo:

With which we may compare Glover’s

And we have the word in Chaucer’s Knight’s Tale (C. 988) in its simple sense of "reply."

Mr. Devecmon must really try again.

But here, surely, is a gross inaccuracy! In Henry V, Act I, Scene 1, the Archbishop of Canterbury says:

On which says the learned Devecmon: "The use of the word ‘Testament’ is here incorrect. A testator bequeaths personal property by a ‘testament,’ he devises real estate by a ‘will.’"

"How absolute the knave is! We must speak by the card"! Must the Archbishop speak by the card too, or the writer be set down as no lawyer? But really this is but another example in support of the proposition that a little learning is a dangerous thing. "A testament is the true declaration of our last Will; of that wee would to be done after our death," says the learned author of that famous old book Termes de la Ley. A "testament" includes a "will," said the Court in Fuller v. Hooper (2 Vesey Senior 242). Nay, more, Littleton, the great and learned Littleton, uses "testament" as applicable to a devise of lands and tenements; and all Coke has to say about it is that "in law most commonly ‘ultima voluntas in scriptis’ is used where lands or tenements are devised, testamentum when it concerneth chattels." But we know that "testator" is used of a man who has made a will, whether it be of lands or of personal property. So that again Mr. Devecmon’s attempt fails.

But take this case. Mark Antony says (Julius Caesar, Act III, Scene 2):

Moreover he hath left you all his walks,
His private arbors, and new planted orchards,
On this side Tiber, he hath left them you,
And to your heirs for ever. [403]

Here Mr. Devecmon quotes Senator Davis to the effect that "Antony in speaking of the real estate left by Caesar to the Roman people, does not use the appropriate word ‘devise.’" Well, the fact is that Shakespeare was here just transcribing, more suo, from North’s Plutarch, where he found the words, "He left his gardens and arbours unto the people, which he had on this side of the river Tiber," and he did not, as a dramatist, think it necessary, nor was he so absurdly pedantic as to alter these words in order to make Antony use the technically correct legal expression. Ah! but then, says the critic, "it was also unnecessary for Caesar’s will to have contained the expression ‘to your heirs for ever,’ in order to give the people a perpetual estate in the realty." Really, really! This is just a little irritating. Shakespeare does not say that the will did contain those words; Antony is telling the people the effect of the will. To pray in aid these words, "and to your heirs for ever," used with excellent dramatic effect, as though they upheld the proposition that Shakespeare was no lawyer, is surely an argument fit only for the least intelligent of readers.

I pass over two supposed instances of legal inaccuracy contained in Pericles and 3 Henry VI respectively, because, as I have already argued, there is really no reason to suppose that Shakespeare was the author of either of these plays, and therefore it is not worth while to waste time over them; but I must notice an alleged case of legal inaccuracy in Love’s Labour’s Lost, Act I, Scene 1, where the King says of Biron, Dumain, and Longaville that they

Says Mr. Devecmon: "The word ‘statutes’ is here used to mean simply articles of agreement. It has no such meaning in law. A statute is an act of the legislature." [404] He thinks that Shakespeare might have got his idea "that any agreement might be called a statute" from "statutes merchant" and "statutes staple." But the word is not used by him, in the passage cited, "to mean simply articles of agreement," but rather in the sense of "ordinances," as in the very usual case of the "statutes" of a college or school, or of a cathedral chapter. And so it is used in the Authorised Version of the Bible (1611), as in Psalm CIX. 8, "I will keep thy statutes." Therefore, to put forward this use of the word "statute" as a case of legal inaccuracy appears to me not a little absurd.†††

Mr. Devecmon concludes his work with what seems to me a very absurd criticism of The Merchant of Venice, by which he claims to prove that "Shakespeare not only manifests his lack of knowledge of the technique of the legal profession, he shows a profound ignorance of law and of the fundamental principles of justice,—unless we assume that the trial scene disregards all ideas of law, justice and morality for mere dramatic effect; but it has been repeatedly shown by many writers that equal dramatic effect could have been attained without such sacrifice."

I do not think many readers, on this side of the Atlantic at any rate, will be impressed by Mr. Devecmon’s argument. It must not be forgotten that The Merchant of Venice is a comedy, although such actors as the late Sir Henry Irving used to send us away with the idea that we had been witnessing a tragedy. I conceive that audiences in Shakespeare’s day, to whom "Jew baiting" was far from distasteful, used to laugh at the misfortunes of Shylock, where we now experience not a little sympathy for the poor old Jew, in spite of his insistence on his "pound of flesh." At any rate, it seems to me simply ridiculous to contend that the dramatist was in "profound ignorance [405] of law," and "of the fundamental principles of justice also" (alas for our immortal bard!), because, following an Italian romance, he has presented us in his comedy with a fantastic trial scene, in which he has not been either such a bad artist or, I may add, such a portentous pedant as to make his characters solemnly conform to the rules of British law and legal procedure.††††

I here leave Mr. Devecmon’s "exhaustive treatise" over which I feel I have already wasted too much time; but since a critic such as Mr. J. M. Robertson seems to have been unaccountably misled by it, it seemed necessary to warn others against this untrustworthy guide who affects to speak with all the authority of a lawyer.‡

The case, then, stands thus: such a great lawyer as Lord Campbell, who filled the highest legal offices in our land, having been both Lord Chief Justice of England and Lord Chancellor, and who was withal an orthodox Stratfordian, after a careful examination of Shakespeare’s Plays and Poems was brought to the conclusion that the author must have had a serious legal training. In this he is fully supported by another great lawyer of more recent times, viz. Lord Penzance. On the same side are amongst [406] others, Malone, Richard Grant White, Judge Webb (a lawyer of no mean reputation), Mr. Castle, K.C., and Judge Holmes of the United States.‡‡ Mr. Devecmon, however, tells us that the great poet got his legal "terminology wrong quite as often as he got it right," and that this "is apparent to any serious examination: certainly it is apparent to any lawyer not tempted by an appetite for tours de force, or burning to make a fellow barrister out of the greatest of dramatists."

Such criticism is, I venture to think, hardly applicable to either of the two great legal lords above mentioned, both of whom (and especially Lord Campbell) certainly made a "serious examination." But I am content to leave the reader to judge between the authorities I have referred to on the one side and Mr. Devecmon and Judge Willis on the other. Certainly if the question is to be decided by authority there can be no doubt what the verdict must be. The fact seems to be that modern critics, like Mr. Devecmon, have become painfully aware that if Shakespeare was really a trained lawyer, then Shakespeare cannot have been the Stratford player. Hence these attempts to discredit the too ingenuous, though deeply learned, Lord Chancellor; and as those who are not learned in the law are, in most cases, quite unable to appreciate the argument, they naturally follow their own inclinations in the matter, and these, of course, lead them to the Stratfordian shrine.‡‡‡ [407]

___________

* H.-P., II, 232. back

** See John Shakespeare, Annals, Halliwell-Phillipps, Vol. II, pp. 215-48. Where Mr. Devecmon gets his "nearly fifty lawsuits" in which John Shakspere was engaged, I know not. back

*** See the remarks of Malone, Lord Penzance, and Mr. Churton Collins quoted above. back

**** If Webster had been a lawyer, would he not have said "livery of seisin"? back

† It may be noted that Folios 2, 3, and 4 read "devise" instead of "demise," but there is no reason to suppose that the First Folio reading is not the correct one. back

†† I assume, of course, that Shakespeare, and not Fletcher, wrote this scene. back

††† Cf. "The statute of thy beauty thou wilt take," of Sonnet 134, quoted at p. 411. back

†††† Mr. John T. Doyle has shown that a very similar procedure to that exhibited in Shakespeare's comedy used to prevail in Nicaragua, once a Spanish colony, and still under the sway of Spanish customs. Shakespeariana l0, 57, cited in Reed's Bacon v. Shakspere, p. 232. back

‡ Mr Devecmon quotes King John, Act II, Scene 1, "Till you compound whose right is worthiest, etc."; and The Taming of the Shrew, Act II, Scene I, "I will compound this strife"; and contends, rightly enough, that "compound" here is not used, as seemingly Senator Davis will have it that it is, in a technical legal sense. "To compound is in all these cases used in the general sense of to settle or determine....To-day in general literature the word is used in pretty much the same sense in which Shakespeare uses it perhaps that is due to the force of his great example." I venture to think that Shakespeare's "great example" had not very much to do with it. Mr. Devecmon might have cited Webster in The Devil's Law Case, concerning which he has made such an amazing statement: "One that persuades men to peace, and compounds quarrels among his neighbours without going to law" (Act II, Scene 1). But really the "great example" is Virgil's tantas componere lites. back

‡‡ See, too, Shakespeare as a Lawyer, by Franklin Fiske Heard. back

‡‡‡ Mr. Henry Davey, in the Stratford Town Shakespeare (Vol. X, p. 271), writes, "both his father and himself were so frequently concerned in legal transactions that he could have picked up quite casually all the law terms employed in his dramas and sonnets." As I have shown, it is not a question of the mere employment of "law terms," and really it is rather difficult to speak with patience of these airy pronouncements. Perhaps if Mr. Davey had served an apprenticeship to the law he might have appreciated the difficulties in the way of this casual picking-up theory! But he is himself another instance of a layman who betrays the fact that he is no lawyer, for he writes (p. 294), "New Place and all the Stratford properties . . . were bequeathed to Susanna Hall." Now no lawyer would speak of bequeathing real estate. It is true that the attorney who, presumably, drafted Shakspere's will makes use of the word with reference to his houses and lands, but he does so in the common and comprehensive formula "I give, will, bequeath, and devise." He never uses the word "bequeath" alone with reference to land; which of itself ought to have saved Mr. Lee and Mr. Davey from the error of saying that Shakspere left the tenement in Chapel Lane to his daughter Judith. See p. 189 n. 2. back