Part Five - Note to Shakespeare as a Lawyer

In Sonnet cxxxiv Shakespeare makes play with the law of debtor and surety. It is a well-established rule of law, which holds good today as it did when Shakespeare wrote, that the payment of a debt by a surety releases the debtor so far as the creditor is concerned. The creditor has been satisfied, not by the debtor it is true, but by somebody else, and has no further claim; but the surety can sue the debtor for the sum which he has been called upon to pay on his behalf. In Sonnet cxxxiv the poet complains that this rule does not hold good in love as it does in law. He is, as Mr. Castle writes, "referring to some old love of his who has attracted the affections of a common friend, whereby he is deprived of his love and friend, and yet is not himself set free." In Sonnet cxxxiii the author complains the lady has captured both himself and his friend, and continues in cxxxiv thus:

Mr. Castle explains that by a "statute" here is meant "an old form of bond, whereby a man’s body and lands were made liable to be taken in satisfaction of a debt incurred either as a merchant or in the staple market."

Then we have, in Venus and Adonis, the extraordinary and highly unpoetical allusion to what is known to lawyers as a common money-bond, which was "a contrivance by the English lawyers to enforce payment of a debt, or the fulfilment of some other obligation on a fixed day. Time was not considered by the law an element of the contract in many cases. Thus, if a debtor promised to repay a loan at a certain date, if he failed to do so the creditor, though he might be put to great inconvenience by the non-receipt of the money on the day named, could not recover any damages for the non-fulfilment of the promise beyond interest in certain cases. This might be a very inadequate remedy for the damage the creditor might suffer in being thus disappointed in his money at the proper time. He would have to proceed by action to recover, and might be delayed by the different proceedings in law. To remedy this the English lawyers contrived the plan of making the debtor enter into a bond in which he acknowledged that he was indebted to the creditor in a sum generally twice the original loan. This bond being under seal was binding, though not true; but there was a condition attached to it, viz. that if the debtor paid or otherwise fulfilled his obligation on the day named the bond should become null and void. So that the creditor had the sanction of the penalty of a double payment to enforce the return of the sum [413] due on the day named. This penalty, as it was called, being a penalty, was very strictly construed by the Courts and was not always a money one. It may be remembered in The Merchant of Venice it was a pound of flesh, and Portia, well knowing the law, or rather, having the author’s knowledge, saved Antonio’s life by noticing the fact that flesh only was mentioned, so that not one drop of blood was to be taken, and a pound to a hair’s weight, neither more nor less, was to be cut off. In Venus and Adonis the author, with his fondness for law, brings this money bond into use. He makes Venus, in the midst of her passion, being an Italian goddess, play upon the terms and conditions to be found in a bond, even to its sealing with wax:

This allusion by Venus to an English common money bond is so incongruous that it is almost burlesque.*

Mr. Castle further points out that "some of the most remarkable references to law are to be found in the Rape of Lucrece, where the author shows that he is familiar with a very technical and [414] intricate form of pleading, happily long obsolete, which for some time has ceased to be any part of modern practice. An ordinary writer might have known the conditions of a money bond, though I doubt if he would have thought of introducing it into a passionate poem like Venus and Adonis; but I doubt if any one but a lawyer would have been familiar with the example I am now about to refer to."

The writer then alludes to the use of the word "colour" in the Rape of Lucrece, as in the lines

which he shows to mean "under what title or justification he commits this trespass. If this were by a husband, the answer would be by colour of a husband’s rights. If a favoured lover had to reply, his answer would be by colour of leave and licence. Tarquin had no colour—he is a trespasser pure and simple. He therefore plays upon the word as we so often find in our author’s works."

The word "colour," as Mr. Castle points out, "as used in legal pleadings, has a very specialised meaning. . . the old English lawyer used it as something beyond an appearance, viz. a pretended title," and the writer gives an extract from a book well known to lawyers, Viner’s Abridgment, explaining that "colour in pleading is a feigned matter which the defendant or tenant uses in his bar, when an action of trespass, or an assize, or entry sur disseisin for rent or forcible entry is brought against him, in which he gives the plaintiff or demandant some colourable pretence which seems at first sight to intimate that he hath good cause of defence, the intent whereof is to bring the action from the jury’s giving their verdict upon it to be determined by the judges, and, therefore, it always consists of matter of law, and that which may be doubtful to the lay people." But I must refer to the work cited for further illustration on this point.

The plays, as is well known, teem with allusions to law and legal doctrines and life and customs and habits. For these I must refer to the works of Lord Campbell, Mr. Cushing Davis, Mr. Richard Grant White, Mr. Castle, K.C., Malone, Mr. Rushton, [415] Judge Holmes, Lord Penzance, Judge Webb, and others. The reader may also refer, if he will, to Mr. Churton Collins’s essay, Was Shakespeare a Lawyer? but Mr. Collins not having himself any special knowledge of this part of the subject, is an unsafe guide, and is apt to see things altogether out of their proper proportion, as is shown by the quotations which he makes from Titus Andronicus in a quite ineffectual attempt to prove legal knowledge on the part of the author of that horrible tragedy. I will content myself with one or two instances. The first shall be the allusion in Hamlet to the famous case of Hales v. Petit, which was decided about the time when Shakspere was born, reported by Plowden in Norman-French, and to be found in the black-letter reports bearing his name.** Sir James Hales, a puisne judge, was so worried by proceedings which had been brought against him, that in the year 1564 he committed suicide by drowning himself, and a jury had found a verdict of felo de se. He was a joint tenant with his wife of some land. If he had died a natural death she would have taken the whole by the right of survivorship; but as he died by his own hand the Crown claimed the whole of his property as forfeited by that felony, and had actually conferred it on the defendant, Cyriac Petit. Lady Hales, however, contended that no forfeiture had been incurred during her husband’s lifetime, since the crime which involved the forfeiture was not complete so long as her husband was alive, for as long as he was alive he had not killed himself, and the moment he died the estate vested in the widow, his joint-tenant, by right of survivorship. The question, then, was whether the crime was committed in Sir James’s lifetime. Counsel for the widow argued after this fashion: "Two things were to be considered, first, the cause of death; secondly, the death ensuing the cause, and these two make the felony, and without both the felony is not consummate, etc." For the defendant Serjeant Walsh argued thus: "The act of felony consists of three parts—the first is the imagination whether or not [416] it is convenient for him to destroy himself, and what way it can be done; the second is the resolution, which is a determination of the mind to destroy himself; and the third is the perfection, which is the execution of what the mind had resolved to do."

The Court gave judgment for the defendant, that is, in favour of the contention of the Crown, delivering themselves thus: "Sir James Hales is dead. How came he to his death? By drowning. And who drowned him? Sir James Hales. And when did he drown him? In his lifetime; and the act of the living man was the death of the dead man, for Sir James Hales being alive caused Sir James Hales to die.’’†

Now the dialogue of the two clowns in "the grave-digger’s scene" in Hamlet is, without doubt, intended as a travesty of this case. This dialogue is not to be found in the First or 1603 Quarto of Hamlet, but was added in the Second Quarto (published in the very next year, 1604), which is said to be "newly imprinted and enlarged to almost as much again, which shows much careful revision, and which contains some passages of the highest poetry omitted by the Folio of 1623. Everybody will remember the concluding words: "But is this law?—Ay, marry, is’t, crowner’s quest law." Lord Penzance cites this dialogue as "a very curious proof of the thorough legal studies which the author of the plays must have gone through." Yet, as Mr. Collins says, "it is not likely that Shakespeare (i.e. Shakspere) had studied or was even acquainted with Plowden’s Commentaries and Reports, which were only accessible to him in Norman-French." I trow not, but I have no doubt that the author of Hamlet knew his Plowden well enough.

I have already expressed the opinion that Henry VI, Part I, is not the work of Shakespeare, but it is generally admitted that if Shakespeare’s pen is to be found in it at all, it appears in the scene in the Temple Gardens (Act III, Scene 1), where much familiarity is shown with the habits of members of the Inns of Court. Here I will merely refer to Mr. Castle’s book (p. 65). [417] Mr. Castle thinks that the scene must have been written by a member of Gray’s Inn, at that time the most famous of the legal inns.

One more instance. In Love’s Labour’s Lost (Act II, Sc. 1, 222) the grant of a kiss is compared to a grant of pasture:

Common of pasture is, of course, a right of common with which lawyers are very familiar. Boyet desires a grant of pasture on Maria’s lips, but she replies that there is "no common" there. This suggests the distinction between tenancy in common and "severally" or individual ownership, and Maria, bethinking her that her lips are "several," or severed one from the other, adds "though several they be." The same idea appears in the Sonnets.

In the play there seems, at first sight, to be some little confusion involved by the use of the word "though," for things which are "several" would naturally not be "common," but I think the explanation is to be found in a note of William Hazlitt’s to Sir John Oldcastle, Part I, Act III, Sc. 1, where the Earl of Cambridge says:

and the note explains "several" here as meaning "portions of common land assigned for a time to particular proprietors." Thus "severals" could be part of common lands, and so Maria might say that her lips, though "several" are "no common," though, even so, the conjunction seems rather forced.‡

But examples from the plays could be multipled almost ad [418] infinitum. I have only given a few specimens. To compare with all this profusion of legal phraseology and wealth of legal knowledge the few feeble instances which can be cited from Barnabe Barnes is but to heighten by way of contrast the case for a legal Shakespeare. Meanwhile we may well ask, Did the provincial player, the "Stratford rustic," write such sonnets as those which I have quoted? Is it his law which appears in Venus’s allusion to a common money bond, or in the various passages of Lucrece? Did he write the travesty of Hales v. Petit in Hamlet? Did he discourse of "common of pasture" and "severally" in Love’s Labour’s Lost? Is it to him that we owe the thousands of legal allusions scattered throughout the Plays? I think not. Credat Judaeus.

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* Castle on Shakespeare, Bacon, Jonson, and Greene, pp. 16-18. In Macbeth, Act IV, Sc. 1, we have the well-known lines:

Here every lawyer recognises legal terminology. "Assurance" is, of course a legal term, and to make the instrument doubly sure he will take a bond, "referring," says Mr. Rushton (Shakespeare a Lawyer, p. 20), "not to a single, but to a conditional bond, under or by virtue of which, when forfeited, double the principal sum was recoverable." See, too, III, 2, 49, where the same figure is used with a different application. back

** Mr. Castle seems to be in error in thinking that the report of this case was "not printed until after his [Shakspere's] death." The Folio edition of Plowden's Reports was printed in 1571, and reprinted 1578. A later edition with a second part was printed in 1579, and both parts were reprinted in 1599 and 1613. back

† Lord Campbell, Shakespeare's Legal Acquirements, p. 33; Lord Penzance, The Bacon-Shakespeare Controversy, p. 90; Mr. Castle on Shakespeare, Bacon, Jonson, and Greene, p. 83; Mr. Churton Collins's Studies in Shakespeare, p. 223. back

‡ Knight tells us that "Dr. James has attempted to show that several, or severell, in Warwickshire, meant the common field,--common to a few proprietors, but not common to all. In this way the word 'though' is not contradictory. Maria's lips are 'no common though several.' . . . 'I and my fortunes' are the co-proprietors of the common-field, but we will not 'grant pasture' to others." Unfortunately for this explanation no commons are "common to all"-the common rights are confined to a limited number of commoners. As to the supposed reference to Warwickshire, it may be remarked that "common-fields" were by no means peculiar to that county, but were common throughout England. Mr. Elton (p. 144) has yet another explanation. He tells us that "the farmers as a rule enjoyed the rights of pasture on the corn lands in fallow, the weeds providing an abundance of coarse food for the town-herd or common flock. But in some districts portions of the fallow were exempted from the general right, and were kept as 'severals' or 'sunder-lands' for the owner's private use." I cannot think that this interpretation (which, by the way, gives us no explanation of the word "though") is the right one. Mr. Elton seems to me to have been sometimes carried away by his love of finding some recondite antiquarian meaning where none had been suspected before. I may add, in further illustration of the fact that the word "several" does not always exclude the idea of "common-right," that there is near Midhurst, in Sussex, a large wood known as "The Severals," in which certain rights of common were once, I believe, enjoyed. The late Rev. H. D. Gordon writes, in his History of Harting, "'Severals,' not an uncommon name for a piece of land severed and enclosed from the Common," and he quotes in illustration the above passage from Love's Labour's Lost (chap. VIII. p. 207, n.). There is a farm known as "Severals" in West Norfolk, in the neighbourhood of Stoke Ferry. If we could ascertain the origin of these old names it might throw light upon the passage above quoted. back