26. Whereas some have argued that the conversation between Falstaff and the Chief Justice does not exhibit a close observation of the manner of speech of judges; Lord Campbell demonstrates that Lord Chancellor Jeffreys once actually did talk of laying a man "by the heels." He further delivers the judgment that the author who made Falstaff talk of "the wearing out of six fashions, which is four terms, or two actions," "must have been early initiated in the mysteries of terms and actions." So, it appears, was Greene, who in James IV (iii, 3) makes Andrew say that "dead" is "a terrible word at the latter end of a sessions," and further makes the Divine (v, 4) complain that the lawyers "delay your common pleas for years." And so must have been Dekker [72] and Webster, since they make Justiniano in Westward Ho speak of "the motion in law that stays for a day of hearing"; and Dekker in If This Be Not a Good Play, The Devil Is In It (ed. Pearson, iii, p. 274) makes Octavio say:

and again in The Honest Whore (Part 1, iv, 2,) makes Fustigo reflect: "I could have mine action of battery against him, but we may haps be both dead and rotten before the lawyers would end it"; and yet again makes Doll in Northward Ho (i, 3) protest: "I’m as melancholy now as Fleet Street in a long vacation; . . . so soon as ever term begins I’ll change my lodging." As for Heywood, he once more betrays his lawyership in The English Traveller (iii, 3):

Lord Campbell, it would appear, had not mastered the simple fact, which lies on the face of a hundred Elizabethan books dealing with contemporary life, that the "terms" of the law-courts were then a normal way of dividing time, as we now commonly divide it by the seasons. The reader, however, can now understand that when Nashe writes: "My clue is spun; the term is at an end; wherefore I will end and make vacation" (Have With You to Saffron Waldon; Works, iii, 136) he is really not giving any proof of legal experience; but is simply using the every-day language of the period; as he does when, at the close of the pamphlet, he says he will "keep back till the next term" his further scolding.

27. Pistol’s "absque hoc" (v, 5) is of course cited as "remarkable," that being "an expression used, when the record was in Latin, by special pleaders in introducing a special traverse or negation of a positive material allegation on the other side, and so framing an issue of fact [73] for the determination of the jury." So that Shakespeare, whose genius is subsumed throughout the inquiry, was really incapable of drawing the character of the swaggerer Pistol without falsifying it by making him utter phrases which were within the ken only of trained lawyers, and which he could never have heard even as scraps and tags! Similarly, when Heywood in The Fair Maid of the West (i, 5) makes a tavern drawer say: "It is the commonest thing that can be, for these captains to score and to score; but when the scores are to be paid; non est inventus," he must be held to have bewildered his audience by putting in a tapster’s mouth a Latin phrase possible only to lawyers. It really seems saner to suppose that tags of law Latin were common currency.

28. Our jurist reaches his high-water mark in the Henry VI plays, where Dick’s proposal (2 H. VI, iv,2), "let’s kill all the lawyers," and Jack Cade’s allusions to parchment and beeswax, show "a familiarity with the law and its proceedings which strongly indicates that the author must have had some professional practice or education as a lawyer." And on the sentencing of the Clerk of Chatham, who could "make obligations and write court hand," and always signed his name instead of making his mark, the Lord Chancellor pens this reflection (italics his): "Surely Shakespeare must have been employed to write deeds on parchment in court hand, and to apply the wax to them in the form of seals: one does not understand how he should, on any other theory of his bringing up, have been acquainted with these details." Over this nonsense one’s only doubt is as to whether the writer can have penned it with any consciousness of its purport; or whether he was deliberately farcing. It seems incredible that it should be necessary to mention that the parchment, beeswax, and seal, and the scene with the Clerk of Chatham, are all in the First Part of the Contention of the Two Famous Houses of York and Lancaster, which was no more written by Shakespeare [74] than by Lord Campbell. But the argument before us is part of the case upon which Lord Campbell founds his deliverance as to the profound legal knowledge exhibited in Shakespeare’s plays, upon which bare deliverance Mr. Greenwood in turn mainly rests his case, which convinced Mark Twain!

29. Of course we are next told that the indictment of Lord Say (iv, 7) was drawn by "no inexperienced hand," inasmuch as it contains the burlesque, phrase "contrary to the king, his crown and dignity," and the further legal phrase, "such abominable words as no Christian ear can endure to hear," which are the equivalent of "inter Christianos non nominand’."

It is quite certain that the drawer of this indictment must have had some acquaintance with "The Crown Circuit Companion," and must have had a full and accurate knowledge of that rather obscure and intricate subject—"Felony and Benefit of Clergy"!

Cade’s proclamation, which follows, we are as gravely told, "deals with still more recondite heads of jurisprudence." Thus it runs:

The proudest peer in the realm shall not wear a head on his shoulders unless he pay me tribute: there shall not a maid be married but she shall pay me her maidenhead ere they have it. Men shall hold of me in capite; and we charge and command that their wives be as free as heart can wish or tongue can tell.

"Strange to say," writes the jurist, "this phrase, or one almost identically the same, ‘as free as tongue can speak or heart can think,’ is feudal, and was known to the ancient laws of England." Ergo, only a trained lawyer can have heard of it! Nashe, as it happens, is inconsiderate enough to employ the phrase in his Have With You to Saffron Walen (Works, ed. cited, iii, 33). But that is a trifle. Once more, it appears, we must point out that "against the king’s crown and dignity," and the "abominable words as no Christian ear is able to endure to hear it," and the edifying lines on the "still [75] more recondite heads of jurisprudence" which Lord Campbell describes as "legislation on the mercheta mulierum," are all in the First Part of the Contention, where, instead of heart can wish, "we have the professionally accurate heart can think." What does Mr. Greenwood think of it all?

30. At a bound we pass from 1 Henry VI to Troilus and Cressida, where, as we might have expected, Pandarus’ phrases (iii, 2) "a kiss in fee-farm" and "in witness the parties interchangeably" are solemnly cited; with the comment that the latter phrase is the "exact form of the testatum clause in an indenture"—"in witness whereof the parties interchangeably have hereto set their hands and seals"; whereas the word "whereof" has been left out. Then we are reminded of the "seals of love" in the song in Measure for Measure and the "sweet seals" in Venus and Adonis, which are once more implicitly declared to be the lyrical expressions of an attorney’s clerk. It would seem again necessary to vindicate the poethood of the poet against his legalist idolaters by pointing out that this too is a poetic commonplace of the time:

31. In Lear, naturally, the Fool’s phrase (i, 4), "‘tis like the breath of an unfee’d lawyer," is held "to show [76] that Shakespeare had frequently been present at trials in courts of justice, and now speaks from his recollection." Dekker and Webster, evidently, must have had the same recondite training, inasmuch as Mistress Birdlime in their Westward Ho (ii, 2) says, "I spake to her, as clients do to lawyers without money, to no purpose."

32. Gloucester’s phrase (ii, 1), "I’ll work the means to make thee capable," is characterised as "a remarkable example of Shakespeare’s use of technical legal phraseology," inasmuch as "capable" is the technical formula for "capable of inheriting." "It is only a lawyer who would express the idea" so. So that, once more, Chapman must have been a lawyer, since he makes Almanzor in Revenge for Honour (iv, 1) tell his son Abilqualit that he is "deprived of being capable of this empire"; Heywood must have been a lawyer, since he puts this very term "capable" in the same special sense in the mouth of the vintner’s apprentice, Clem, in The Fair Maid of the West (v, 2):

Please your majesty, I see all men are not capable of honour what he refuseth, may it please you to bestow on me;

and Massinger must have been a lawyer, since he has the phrase in an edict (Old Law, v, 1), "no son and heir shall be held capable of his inheritance . . . unless. . . ." And Heywood, Chapman, Massinger, and Shakespeare stand alike convicted—if there be any validity whatever in the legalist argument—of at once putting their characters out of drawing and bewildering their audiences by making their non-legal personages use terms which none but lawyers could understand! It may suffice to mention that the terms "capable" and "incapable" are used in More’s History of Richard III (Murray’s rep. pp. 194, 195) with reference to the succession to the crown, that they occur in the chronicles, and that they must have been used in all men’s common talk for many generations. [77]

33. The words of Cornwall to Edmund, "Seek out where thy father is, that he may be ready for our apprehension," are cited without any explicit claim to find in them signs of profound legal knowledge; but inasmuch as Edmund says, aside: "If I find him comforting the king, it will stuff his suspicion more fully," we are duly reminded that "comforting" is the term used in "the indictment against an accessory after the fact, for treason." The Lord Chancellor would appear to have been unaware that the word is used in indictments after the fact for lesser crimes than treason! It must have been heard as so used in every Elizabethan court, and would be familiar in every village.* It may be mentioned incidentally that "back up" or "encourage" is the original meaning of "comfort," and that the word is used often by Wiclif in that sense.**

34. There being no other "law" in Lear, we are finally assured that at least "In Act iii, Sc. 6, the imaginary trial of the two unnatural daughters (by the mad Lear) is conducted in a manner showing a perfect familiarity with criminal procedure." In this case I spare comment.

35. In Hamlet the simple phrase, "should it be sold in fee" (iv, 4) is alleged to be one of the various expressions "showing the substratum of law in the author’s mind." We then learn that the mention of impressed shipwrights who work on Sunday "has been quoted both by text writers and by judges on the bench, as an authority upon the legality of the press-gang, and upon the debated question whether shipwrights, as well as common seamen, are liable to be pressed into the service of the royal navy." That is to say, the passage tells of [78] Elizabethan usage. There is no question of "legal knowledge" in the matter.

36. Hamlet’s phrase, "As this fell sergeant Death is strict in his arrest," cannot be let pass without the remark that in this metaphor Death comes "as it were to take him into custody under a capias ad satisfaciendum." His lordship would doubtless have said the same had he met in Shakespeare with Ben Jonson’s "He’ll watch this sen’night but he’ll have you: he’ll out-wait a sergeant for you" (Epicoene, iv,2). Had Lord Campbell read Chapman’s All Fools he would have known from a phrase about Dame Nature sending "her serjeant John Death to arrest his body" (i, 1), that the trope was in common use. Chapman’s "executioner of justice, Death" (Revenge for Honour, iii, 1), and Massinger’s "Summoned to appear in the court of Death" (The Duke of Milan, v, 2) are simply samples of a vein of metaphor which runs through all English speech of the period. We have it in Nashe’s Christ’s Teares Over Jerusalem (1593):

The judge [shall] deliver thee to Death, his Sarjant, the Sarjant to the divel.
      Works, ed. McKerrow, ii, 32.

We have it again in Dekker:

________

* In a recent English case which excited much interest, the newspapers printed the phrase in question, some misreading it "comport." back

** In Elizabeth's day, the mistake would have been possible. Treatise Against the Order of Friars, chs. 20,24, 31. back