Lord Campbell's Case – Part 5

19. Whereas Katherine in the same play (ii, 1) says; "You crow too like a craven," we are seriously assured that the playwright "shows that he was acquainted with the law for regulating trials by battle" between champions, one of which had been fought in Tothill Fields before the judges of the Court of Common Pleas in the reign of Elizabeth, because "all lawyers" know that "craven" is "the word spoken by a champion who acknowledged that he was beaten, and declared that he would fight no more; whereupon judgment was immediately given against the side which he supported, and he bore the infamous name of craven for the rest of his days." "We have like evidence in Hamlet (iv, 4)," adds his lordship, "of Shakespeare’s acquaintance with the legal meaning of this word," inasmuch as Hamlet has the phrase, "some craven scruple."

I invite Mr. Greenwood’s critical attention to the rubbish upon which he has been building his case. He is, I know, the last man that would attend a cockfight; but he will perhaps admit that cockfighters called a timid cock a craven without possessing the lore of "all lawyers" as to the nomenclature of trial by battle—concerning which, more anon. He will also, I think, grant me that Shakespeare did not write The Taming of the Shrew; the "profound" legal learning of which play must accordingly be credited in some other quarter.

20. Lord Campbell gives three pages to the proposition that the bare plot of All’s Well, as regards the legal position of Bertram, is proof "that Shakespeare had an accurate knowledge of the law of England respecting . . . [64] tenure in chivalry" and "wardship of minors." The wardship of Bertram, we are told, "Shakespeare drew from his own knowledge of the common law of England, which . . . was in full force in the reign of Elizabeth." That is to say, the alleged knowledge must have been common to the multitude, since there is not a word of technicalities in the play. And after all we learn, in a foot-note, that "according to Littleton it is doubtful whether Bertram . . . might not have refused to marry Helena on the ground that she was not of noble descent."

21. The profundity and accuracy of legal knowledge exhibited in the Winter’s Tale is vouched for (a) by the fact that Hermione mentions, (i, 2), "a piece of English law procedure which . . . could hardly be known to any except lawyers, or those who had themselves actually been to prison on a criminal charge—that, whether guilty or innocent, the prisoner was liable to pay a fine on his liberation." Lord Campbell appears to have assumed that released prisoners would keep this strange circumstance to themselves as a dark secret. Mr. Greenwood will probably admit that it was likely to be known to Ben Jonson (who had been twice in prison, and may have revealed his occult knowledge to Shakespeare); to Marston and Dekker, who had also been in jail; and to Greene and Nashe, to say nothing of certain thousands of other Elizabethans! Lest, however, he or his Baconian friends should refuse to grant that anybody but a lawyer was likely to disclose the mystic secret in a play, it may be well to cite Heywood’s A Women Killed with Kindness, where it is thoughtlessly revealed thrice over:

Prison Keeper. Dischargey our fees and you are then at freedom.

Sir Charles. Here, Master Keeper, take the poor remainder
Of all the wealth I have. (Act ii, 2).

Prison Keeper. You are not left so much indebted to us
As for your fees all is discharged, all paid. (Act iv, Scene 2). [65]

In the same scene, when Sir Charles discovers that he is released by his enemy Acton, he cries, "Hale me back!" and concludes:

to which the keeper replies:

My charge is done, Sir, now I have my fees
As we get little, we will nothing leese [lose].

Yet again, in Part II of his King Edward the Fourth (Pearson’s ed. i, 139) Heywood proclaims the usage which Lord Campbell thinks could have been known only to lawyers or ex-prisoners. Jane Shore, securing the pardon of the prisoners for piracy, about to be hanged, says to the officer

You must discharge them, paying of their fees
Which, for I fear their store is very small, I will defray.

And if this be not enough, we have yet another revelation in Dekker’s The Wonder of a Kingdon (iv, 1)

If Lord Campbell and Mr. Greenwood had but handled this case as they would have done a legal one, and taken a little trouble to discover precedents, they and their readers might have been saved the construction and demolition of a legal house of cards. That which Lord Campbell thinks could hardly have been known to any but lawyers and prisoners was known to every spectator, and is known to every reader, of Heywood’s best play, to say nothing of ordinary means of knowledge.

22. With a supreme effort of candour, Lord Campbell admits that the indictment of Hermione (iii, 2) "is not altogether according to English legal form, and might be held insufficient on a writ of error."But he comforts himself with the reflection (b) that "we lawyers cannot but wonder at seeing it so near perfection in charging the [66] treason, and alleging the overt act committed by her contrary to the faith and allegiance of a true subject."

With what wonder, then, must the lawyers read the indictment of Crispinus and Fannius in Jonson’s Poetaster (v, 1), where the technicalities are to Shakespeare’s as three to one! The culprits there are "jointly and severally indicted and here presently to be arraigned" as having acted "contrary to the peace of our liege lord, Augustus Caesar, his crown and dignity," and "mutually conspired and plotted at sundry times, as by several means, and in sundry places, for the better accomplishing your base and envious purpose. . . ." Mere clerkship in an attorney’s office, surely, could not yield such profundity of legal learning! The Poetaster, like the rest of the Elizabethan drama must be by Bacon!

And only the same hand, surely, could have penned the "wonderful" indictment of Guildford and Lady Jane in the Famous History of Sir Thomas Wyat, by Dekker and Webster, where the culprits are "here indicted by the names of Guilford Dudley, Lord Dudley; Jane Grey, Lady Jane Grey, of capital and high treason against our most sovereign lady the Queen’s majesty," for having "sought to procure unto yourselves the royalty of the crown of England, to the disinheriting of our now sovereign lady the queen’s majesty," and "manifestly adorned yourselves with the state’s garland imperial," and so forth. And only a lawyer, clearly, could have made Norfolk order that the accused shall "directly plead unto the indictment."

Returning to Lord Campbell; we learn (c) that Cleomenes and Dion "are sworn to the genuineness of the document they produce almost in the very words now used by the Lord Chancellor when an officer presents at the bar of the House of Lords the copy of a record of a court of justice." Which completes the case for the Winter’s Tale and the Comedies.

23. Coming to the Histories; our jurist notes that the [67] English history plays contain fewer "legalisms" than "might have been expected," and that there are more in the foreign plays. He recalls, however, that in the history plays Shakespeare was working upon foundations already laid by other men who had no "technical knowledge" of the recondite kind we have just been considering. And after all, we find that in King John’s speech to Robert Faulconbridge, beginning:

we have the "true doctrine, Pater est quem nuptiae demonstant." Unhappily, the author or authors of the older play, The Troublesome Raigne of King John (whom I take to be mainly Marlowe and Greene), though necessarily devoid of technical knowledge, had been inconsiderate enough to develop the argument more fully and with more use of technical terms than Shakespeare has done. When, accordingly, it is further argued that the line (ii, 1),

As seal to this indenture of my love,

"might come naturally from an attorney’s clerk," we can but remark that the metaphor in question seems to have come naturally to most of the poets and dramatists of Elizabethan England. Take fifteen instances out of a hundred:

Be this day
My last of bounty to a wretch ingrate
But unto thee a new indenture sealed
Of an affection fixed and permanent.
      Heywood, The English Traveller, i, 2.

Not till my pardon’s sealed. Ib. iv, 6.

Mary. Yes sir; a bond fast sealed with solemn oaths,
Subscribed unto, as I thought, with your soul
Delivered as your deed in sight of Heaven:
Is this bond cancelled: have you forgot me?
      Middleton, The Roaring Girl, i, 1.

He and I
Have sealed two bonds of friendship.
      Dekker, The Honest Whore, Part I, i, 1. [68]

Then with thy lips seal up this new-made match.
      Arden of Feversham, III, v, 150.

Francis. Bid her come seal the bargain with a kiss.
Mall. To make love’s patent with my seal of arms.
      The Two Angry Women of Abington, iii, 2.

And have his lips seal’d up.
      Jonson, Every Man out of his Humour, Induction.

Seal it with thy blood. (twice)
      Dekker, The Witch of Edmonton, ii, 1.

the tragedy,
Though it be seal’d and honour’d with the blood
Both of the Portugal and barbarous Moor.
      Peele, The Battle of Alcazar, iv, 2.

Join you with me to seal this promise true
That she be mine, as I to her am true. . . .
First Four but say, next Four their saying seal
But you must pay the gage of promised weal.
      Sir Philip Sidney, Arcadia, b. iii.

I seal your charter-patent with my thumbs.
      Greene, Eclogue in Menaphon, end.

You all fixt
Your hands and seals to an indenture drawn
By such a day to kill me.
      Dekker, Match Me in London, Act iv. Pearson’s ed. iv, 200.

I’ll bear him such a present,
Such an acquittance for the knight to seal,
As will amaze his senses.
      Heywood, A Woman Killed with Kindness, v, i,

I seal you my dear brother, her my wife. Ib.

Or seal our resolution with our lives.
      Heywood, First Part of Edward IV., Pearson’s Heywood, i, 14

I seal myself thine own with both my hands
In this true deed of gift.
      Blurt, Master-Constable, 1600, v, 3

It is edifying to know, in the same connection, that Bishop Wordsworth found in Shakespeare’s metaphorical use of "seal" a proof of his study of the Bible.* [69]

As there is no more "law" in King John, our jurist fills a page by demonstrating that his author "spurned the ultramontane pretensions of the Pope." It is even so.

24. A brighter prospect opens for the Baconian when we reach King Henry IV, Part I, for there (iii, 1) "the partition of England and Wales" is carried out "in as clerk-like, attorney-like fashion as if it had been the partition of a manor between joint tenants, tenants in common, or coparceners." All this because Mortimer has the lines

"It may well be imagined," says the learned judge, "that . . . Shakespeare was recollecting how he had seen a deed of partition tripartite drawn and executed in his master’s office at Stratford"—though in the critic’s opinion he probably was never in any attorney’s office And when Hotspur asks: "Are the indentures drawn?" he shows that he "fully understood this conveyancing proceeding." By the same reasoning, Dekker knew as much when he wrote the lines last above cited from him; and Greene and Lodge may well be imagined to be drawing on office reminiscences when they made the Usurer in A Looking Glass for London say to his victim "Have you not a counterpane of your obligation?" thus making their personage "fully understand" what only lawyers could know! And, once again, we find that Ben Jonson’s plays must have been written by a trained lawyer, inasmuch as he not only has:

in The Alchemist (v, 2), but makes the scrivener in the Induction to Bartholomew Fair present a full-drawn "indenture"—of which the Bookholder gets the "counterpane"—in strict quasi-legal form, between the spectators and the author. As the document runs to over a hundred [70] lines, the claims for Shakespeare’s legal training would seem to be at this point as dust in the balance. The only question open on the juristic principles under notice is, whether Jonson was an attorney’s clerk or Bacon’s amanuensis!

And the problem does not end with the dramatists. Bishop Hooper, the martyr, in a long passage of legalist theology quoted hereinafter (ch. vi), speaks of a contract "confirmed with obligations sealed interchangeably." Hooper is known to have been a monk before he became a Protestant preacher. Is it to be inferred that he had also been a lawyer’s clerk?

25. Our jurist adds Shakespeare may have been taught that ‘livery of seisin’ was not necessary to a deed of partition, or he would have probably directed this ceremony to complete the title." Such modesty of statement should be fitly acknowledged. But the judge is more assured in noting that "so fond was Shakespeare of law terms" that he makes Henry IV use (iii, 2) the "forced and harsh" figure, "Enfeoff’d himself to popularity." Upon this we have a copy of Malone’s note on the passage, but not of Steevens’s mention that in the old comedy of Wily Beguiled there is the phrase: "I protested to enfeoffe her in forty pounds a year." When Shakespeare uses a legal term in a strained sense, such as probably would never suggest itself to a lawyer, he is held to exhibit his profound and accurate legal knowledge. When, then, Serlsby in Greene’s Friar Bacon (sc. 10) says:

it merely proves that Greene had "no technical knowledge." In point of fact, the "forced and harsh" use of this very term occurs often in Nashe:

Might the name of the Church infeoffe them in the kingdom of Christ. . . .
     The Anatomie ofA bsurditie, 1589. Works, ed. McKerrow, i, 22. [71]

A kind of verse it is he hath been enfeoft in from his minoritie
      Ep. Ded. to Have with You to Saffron Waldon, Works, iii, 7.

I . . . enfeofe thee with indefinite blessedness
      Christ’s Teares over Jerusalem, ed. cited, ii, 32.

—in a fashion which indicates that it was a trick of speech of the period, analogous to that of the phrase, "Shall I contract myself to wisdom’s love?" in Dekker’s Old Fortunatus (i, 1). The words "feoffee" and "feoffment" occur again in the legal sense many times in two acts of Jonson’s play, The Devil is an Ass. It is thus abundantly evident that both the normal and the abnormal use of such legal terms were common in Elizabethan phraseology. Yet because Hotspur in 1 Henry IV (iv, 3) simply tells how Henry on a historic occasion said he came to "sue his livery" when he actually did so, we are asked to believe that Shakespeare’s language is determined by his special legal training. What inference then shall we draw when Ben Jonson in The Staple of News (i, 1) makes Pennyboy junior declare,

Are we to be told here also that Jonson exhibits lack of a technical knowledge which Shakespeare possessed?

_________

* On Shakespeare's Knowledge and Use of the Bible, 2nd ed.1864, p. 333. back