Mr. Rushton, Senator Davis, Mr. Castle – Part 1

§ 1. Rushton

[117] A DISTINCTION should be drawn between the argumentation of Mr. W. L. Rushton and that of the later advocates, Baconian or other, of the theory that the Shakespearean plays exhibit special knowledge of law. Mr. Rushton, as has been noted above, preceded and apparently primed Campbell; and throughout his series of small books on Shakespearean questions he exhibits at once a wider literary learning and a somewhat sounder judgment than are to be seen in the other writers with whom we have to deal. His Shakespeare’s Euphuism is a painstaking performance, the work of an industrious literary antiquary. Yet there is in all his work an element of laborious trifling, and he is always somewhat indiscriminate in his citation of parallels.

In so far as his case for Shakespeare’s knowledge of law is appropriated and embodied in Campbell’s, it has been disposed of in our examination of that. He himself, however, never committed Campbell’s folly of claiming for the law of the plays an entire freedom from error. As he puts it in his laconic way, taking his revenge for plagiarism:

We all know that Lord Campbell was a lawyer of great experience, yet in his book he has made several mistakes in law; how then could any errors in law which I might show in Shakespeare’s works afford conclusive evidence that Shakespeare was not a lawyer?*

As a matter of fact, however, Rushton had undertaken in his Shakespeare A Lawyer "to show that Shakespeare had acquired a general knowledge of the principles and practice of the Law of Real Property, of the Common Law and Criminal Law, that he was familiar with the exact letter of the Statute Law, and that he used law terms correctly." Of the value of that thesis we have been able to judge in our examination of Campbell; and it need but be added that even a generally "correct" use of law terms by an Elizabethan dramatist has been seen to be no warrant for supposing him a lawyer, since it can be predicated more largely of Jonson and Webster, to name no others, than of Shakespeare. When, for instance, Rushton argues that Macbeth’s

"refers not to a single but to a conditional bond, under or by virtue of which the principal sum was recoverable,"** he says nothing to the purpose. In his later work, Shakespeare Illustrated by Lex Scripta (1870), the augmentation is equally nugatory, in so far as it is not a mere "illustration" of the text. The first item is that in Suffolk’s "praemunire" speech in Henry VIII (iii, 2) the phrase about forfeiting goods, lands, tenements, &c., and being "out of the king’s protection," is "the exact letter of the statute law"—an assertion which carries us nowhere.*** The last item is the proposition that when Speed, in The Gentlemen of Verona (ii, 1) says first "do you not perceive her jest?" and then "did you perceive her earnest?" he uses "perceive" first in its usual meaning, but the second time in the sense of a statute phrase, "take, perceive, and enjoy." If [119] this be "illustration" of anything, it is not of the thesis that the plays are written by a lawyer.

Of more significance is Rushton’s more recent thesis that Shakespeare’s use of legal maxims tells of legal training. It is put with comparative circumspection, and partly in bar of the Baconian view. "Although Bacon’s legal maxims are twenty-five in number," he writes, "I have not found any of them in Shakespeare’s plays; but a portion of one of them. . . .

Sententia interlocutaria revocare potest, definitiva non potest,

expresses the law to which Shakespeare refers in the Comedy of Errors (i, 1):

And passed sentence cannot be recalled.

To impute legal knowledge on the strength of that commonplace, however, is but to continue the idle mystification which we have been occupied in clearing up. And the case is little better when Rushton puts his point that Shakespeare in his use of legal maxims translates correctly from the Latin:

In the plays of Ben Jonson, George Chapman and other dramatists of their time, legal maxims are to be seen in Latin, Shakespeare never quotes legal maxims in Latin, but he gives correct translations of them which are so embodied in his verse and prose that they have not the appearance of quotations. . . . Shakespeare’s correct translations of legal maxims are, I think, the only satisfactory evidence we have of his knowledge of Latin.†

Here the case for the dramatist’s legal knowledge is in effect abandoned, and the question shifted to that of his scholarship, with the admission that the evidence usually cited on that head is not satisfactory. If Ben Jonson and George Chapman, who are not lawyers, admittedly cite legal maxims in Latin, what is to be proved from Shakespeare’s citation of any in English, when the same thing is done by Heywood and Massinger, who also were [120] not lawyers? Massinger (The Fatal Dowry, i, 2) writes, quite "correctly":

Is he then not to be credited with Shakespearean lawyership?

The instances given from Shakespeare by Rushton are sufficient to entitle us once more to dismiss the whole case:

I now give one example of Shakespeare’s correct translation of the Latin maxims, and of the good verse (!) he makes of it:

Dormiunt aliquando leges, moriuntur nunquam
(The law hath not been dead, though it hath slept),

where the verbs dormior and morior in Latin are represented (!) by the verbs sleep and die in English.††

It is not clear why we are not further informed that leges is represented by "law." The whole point is a futility. Shakespeare was citing a legal commonplace which must have been familiar to thousands of laymen; as he was when he made Portia say:

or Olivia say:

Rushton gravely cites these simple utterances, with Cranmer’s

as standing for knowledge of the legal maxims:

and

One can but patiently put the old questions. When [121]Massinger makes Alonso in The Bashful Lover (ii, 7) say:

was he drawing upon a professional knowledge of law? When Greene in one of his stories wrote: "They both agreed I should be judge and juror in this controversy" (Quip for an Upstart Courtier: Works, xi, 229) did he prove himself a trained lawyer? Or did Rowley and Dekker do so when they made characters say:

A good many thousand laymen have in their time remarked that "Possession is nine points of the law" without expecting to be reckoned experts for it; but inasmuch as we have in King John (i, 1) the lines:

our antiquary would have us see in them a translation of the legal maxim:

And when Hamlet says, unpretentiously enough,

it is held to stand for the canonical knowledge that

Vir et uxor sunt quasi unica persona, quia caro una, et sanguis unus.

So much for the last stages of the first attempt to prove "Shakespeare a lawyer."

§ 2. Davis

We need spend little time over the kindred performance of Senator Cushman Davis, who in his work The Law [122] in Shakespeare does but eke out the method and matter of Campbell and Rushton with a multitude of more trivial details. Like Campbell, he finds that Cade’s talk of parchment, wax, seals, the killing of lawyers, and the charge against the clerk of Chatham, "are expressions such as a lawyer would naturally put in the mouth of a brutal and ignorant insurgent"; and with Campbell he sees recondite legal knowledge in the alleged allusion to the mercheta mulierum, though he seems to ascribe it to the rebel and not to the dramatist: "Cade undoubtedly had this atrocious custom in his mind."‡

Like the Lord Chancellor, the Senator does not ask whether the lawyer dramatist could or could not expect the audience, devoid of legal training, to appreciate the allusions; and he makes nothing of the fact that they are all in the pre-Shakespearean play. When, again, Cade speaks of being "seized f or a stray for entering his fee-simple without leave," we are simply assured that he "uses technical language."‡‡ It should be suitably acknowledged that in the phrase:

the learned Senator is scrupulous enough to confess that the expression is inaccurate, inasmuch as there is needed the use of the term "body" "to make it a fee-tail."‡‡‡ But as against this stand for technical exactitude, we have from him a multitude of claims for legal knowledge where even Campbell would have blenched at the suggestion. Thus in the first scene of Coriolanus the words verdict, statutes, act, and repeal, are all cited as displays of legal knowledge, the word edicts being unintelligibly ignored. Elsewhere he makes "legal" capital of such words as arrest, arrested, abjure, appellant, avouch, addition (of name), bond, cases, depose, earnest, "execution done [123] on Cawdor," matter, "made good," indenture, object, tenor, &c. &c. It may suffice to say that on the Senator’s principles every Elizabethan dramatist may be pronounced a lawyer without further research.

________

* Appendix B to Shakespeare's Testamentary Language, 1869, p. 53; Shakespeare's Legal Maxims, 1907, p. 12. back

** Shakespeare a Lawyer, 1858, p. 19. back

*** I do not here stress the fact that the speech in question belongs to the share assigned to Fletcher in Henry VIII by the critics. It stands in any case for no special knowledge. back

† Shakespeare's Legal Maxims, p. 9. back

†† Work cited, p. 10. back

††† Cp. The City Madam, iii, 2. back

‡ The Law in Shakespeare, St. Paul, U.S.A., 1884, pp. 195-7. back

‡‡ Id. p. 198. back

‡‡‡ Id. p. 200. back