Lord Campbell's Case – Part 7

37. Over the grave-diggers’ scene; naturally, we have special exultation: it is "the mine which produces the richest legal lore." Inasmuch as the talk of felo de se bears on the case of Sir James Hales, puisne Judge of the Common Pleas, who became insane and committed suicide soon after the accession of Queen Mary, we are assured that "Shakespeare had read and studied Plowden’s Report of the celebrated case of Hales v. Petit, tried in the reign of Philip and Mary." The sole basis for this now familiar stress of asseveration is that in the lawsuit [79] over Hales’ estate, in which one side argued that a man "cannot be attainted of his own death" and "cannot be felo de se till the death is fully consummate," whereas "the death precedes the felony and the forfeiture," the other side argued that "the act consists of three parts"—imagining, resolving, and executing. In the play, the Clown says, with regard to the suicide of Ophelia, "an act hath three branches, it is to act, to do, and to perform." That is the whole case.

Now, it is obvious that such a notable argument as that in the Hales case must have been reported, discussed, and commented on for two generations all over England; and it would be discussed among common folk as among the educated. Shakespeare could often have heard just some such confabulation as he ascribes to the grave-diggers. If this be denied, we must decide that he put in the mouths of common folk quasi-legal talk which neither they nor the audience could even loosely understand. There is not the slightest reason to suppose that he went to Plowden to study a case of common notoriety for the sole purpose of framing a few burlesque phrases for a comic dialogue—for that is the sole use to which he puts the matter. Once more the legalist case, at its highest pretension, collapses on a moment’s scrutiny.

38. Over Hamlet’s speech on the skull, however, we have inevitably a further sweeping claim, inasmuch as it "abounds with lawyer-like thoughts and words." "These terms of art are all used seemingly with a full knowledge of their import; and it would puzzle some practising barristers with whom I am acquainted to go over the whole seriatim and to define each of them satisfactorily." So that Shakespeare, once more, is inartistic enough to put in the mouth of a prince a string of law terms which a Victorian barrister would be hard put to it to define!

But, as usual, other dramatists of the time do likewise. [80] In Ben Jonson’s Epicoene (iv, 2) we have Morose’s list of terms to match Hamlet’s:

There is such noise in the court that they have frighted me home with more violence than I went! such speaking and counter-speaking, with their several voices of citations, appellations, allegations, certificates, attachments, interrogatories, references, convictions and afflictions, indeed, among the doctors and proctors, that the noise here is silence to’t.

Then, in the scene (v, 1) in which Otter and Cutbeard play the parts of a divine and a canon lawyer, we have these legal terms:

Divortium legitimum; divinere contractum; irritum reddere matrimonium, "as we say in the canon law, not to take away the bond, but cause a nullity therein"; impedimentum erroris; error personae; error fortunae; error qualitatis nec post nuptiarum benedictionem; irrita reddere sponsalia; conditio; votum; cognatio spiritualis; crimen adulterii; cultus disparitatis; vis; ordo; ligamen; publica honestas, which is inchoata quaedam. affinitas; affinitas orta ex sponsalibus; leve impedimentum—and yet more.

Why should Ben Jonson be denied his diploma as canon lawyer?

39. In Macbeth the only phrases cited as having "the juridical mark" upon them are Macbeth’s "take a bond of fate" and "live the lease of nature" (iv, 1). Upon these citations there follow certain professional pleasantries which laymen may pass by. It is fitting, however, to note that Mr. Castle, K.C.,* classes MACBETH among "the non-legal plays," and pronounces the "bond of fate" phrase "mere sound, not sense," as he does the "lease of nature" phrase to be "nonsense."** Above all, he is impressed by the legal ignorance displayed in the story of the traitor Cawdor, concerning whom Angus [81] eges "treasons capital, confessed and proved,"without being able to, tell the king what they were. In particular, Mr. Castle insists that the passage:

"is an inaccurate and improper expression," inasmuch as Cawdor had not been tried. I leave this crux to the Baconians and the other legalists, merely noting that Mr. Castle finds "this condemnation of Cawdor to death without trial . . . the most convincing proof that Shakespeare had no legal assistance in writing this play." The poet, he thinks, personally leant to the view that the king could condemn any one to death without trial—as did James, to the scandal of the lawyers, in the case of a cutpurse, on his journey to London to be crowned. Perhaps James had read Richard III!

40. From Othello Lord Campbell contrives to wring a larger harvest than from any other play. As thus:

In (d) Desdemona’s appeal, we are told, "is made to assume the shape of a juridical proceeding"; in (e) the language "shows that Shakespeare was well acquainted with all courts, low as well as high." Noting the utter futility of the two last cited pleas, we can best rebut the [82] whole five instances by citing a much longer series of "legal" passages from one play of Ben Jonson—Epicoene, Or the Silent Woman:

They say he has been upon divers treaties with the fishwives and orange-women, and articles propounded to them. (i, 1.)

It gives thee the law of plaguing him. . . . Disinherit thee! he cannot, man. Art not thou next of blood, and his sister’s son? (Ib.)

He shall never have that plea against me. (Ib.)

Have I ever cozened any friends of yours of their land? bought their possessions? taken forfeit of their mortgage? begged a reversion for them? (Ib.)

Daw. Syntagma juris civilis; Corpus juris civilis; corpus juris canonici. . . .
Daup. What was that Syntagma, sir?
Daw. A civil lawyer, a Spaniard.
Daup. Sure, Corpus was a Dutchman. (ii, 2.)

He’s better read in jure civile than . . . (Ib.)

I’ll kiss you, notwithstanding the justice of my quarrel. (iii, 2.)

I have an execution to serve upon them, I warrant thee, shall serve. (iv, 2.)

Batter! If he dare, I’ll have an action of battery against him. (Ib.)

In addition, we have all the other Jonsonian legalisms noted above and hereinafter—in all fifty times as much "law" as Lord Campbell finds in Othello. It is doubtless a work of supererogation to cite parallels to "nonsuits," "lawful prize," "leets," and "sessions," but here they are. In one speech in a play of Jonson we have:

Pennyboy jun. But Picklock, what wouldst thou be?
Thou canst cant too.
Picklock. In all the languages in Westminster Hall,
Pleas, Bench, or Chancery. Fee-farm, fee-tail
Tenant in dower, at will, for term of life,
By copy of court-roll, knight’s service, homage,
Fealty, escuage, soccage, or frank almoigne,
Grand serjeantry, or burgage.
      The Staple of News, iv, 1.

Had Lord Campbell found such a catalogue in Shakespeare, with what superlatives would he have cited it! [83]

"Lawful prize" is a standing Eizabethan term: Witness—

Take further the following:

As for "leets and lawdays," it was evidently a standing phrase. In the publisher’s or editor’s address "to the Reader," prefaced to Latimer’s Second Sermon before King Edward VI, 1549, we have:

Why, but be not lawyers diligent, say ye? Yea truly are they; about their own profit there are no more diligent men, nor busier persons in all England. They trudge, in the term time, to and fro. They apply the world hard. They foreslow! They follow assizes and sessions, leets, law-days, and hundreds. They should serve the king, but they serve themselves.
      Sermons by Hugh Latimer, Ed. in "Everyman’s Library," p. 94.

This surely is not a lawyer’s outburst.

Add that in a dozen other plays by non-lawyer dramatists of Shakespeare’s day there are far more elaborate [84] and realistic trials—to be noted hereafter—than any in Shakespeare, and the case founded on Othello is done with.

41. Avowing that he can find no instance in Julius Caesar "of a Roman being made to talk like an English lawyer," Lord Campbell proceeds to claim that in Antony and Cleopatra (i, 4) Lepidus "uses the language of a conveyancer’s chambers in Lincoln’s Inn" when he says that the faults of Antony seem "hereditary rather than purchased;" adding in a footnote a citation of the king’s lines in 2 Henry IV, iv, 4:

The point is that in legal terminology "whatsoever does not come through operation of law by descent is purchased, although it may be the free gift of a donor." As we shall have occasion to go fully into this point later in connection with a similar claim by Mr. Grant White, it may suffice here to say that, as usual, Lord Campbell puts it in entire ignorance of the common phraseology of other Elizabethan dramatists and writers, and that we shall find the word used in the same way by them in scores of instances. What he describes as a specifically legal use of the term "purchase" was in fact the primary and normal sense of the word in English, as may be seen by tracing it through ordinary literature down to Shakespeare’s day.

42. Citing the speech of Menenius in Coriolanus (ii, 1) reproaching the tribunes Sicinius and Brutus with their fashion of wasting time over trifling causes, and embroiling issues "between party and party" by wanton displays of impatience and temper, Lord Campbell argues that here "Shakespeare shows that he must have been present before some tiresome, testy, choleric judges at Stratford, Warwick, or Westminster." He admittedly it mistakes the duties of the tribune for those of the praetor" (a likely thing on the part of a trained lawyer!); but "in truth he was recollecting with disgust what he [85] had himself witnessed in his own country." And if so, what then? Is this any proof of profound legal knowledge? Where the claim is so feeble, it is hardly worth while to offer parallel instances; but as usual, they are easily found. The testy and choleric judge, a lamentably common figure in Tudor England,*** appears in Webster’s White Devil; in Chapman’s Admiral of France; in Massinger’s The Fatal Dowry, and in Lodge and Greene’s Looking Glass for London. In the Duchess of Malfy (i, 1) Webster makes Antonio say of the Duke that he "will seem to sleep o’ the bench, Only to trap offenders." Is this such a reminiscence as proves legal training?

_________

* Work cited, p. 96 sq. back

** If so, it was popular nonsense. In Webster's White Devil, Brachiana tells Flamineo: "I will not grant your pardon. . . . Only a lease of your life and that shall last But for one day" (iv, 5, end). back

*** See Latimer's Third Sermon before Edward V1. Bishop Bale, recounting the Examination of Anne Askewe, tells of "the judges, without all sober discretion, running to the rack, tugging, hauling, and pulling thereat, like tormentors in a play. Compare me here," he adds, "Pilate with Wrisley, the high chancellor of England, with Rich, and with other. . . and see how much the pagan judge excelled in virtue and wisdom the false christned judge." Select Works, Parker Soc. rep. p. 241. back