Mr. Rushton, Senator Davis, Mr. Castle – Part 2

That some of the other dramatists do display similar legal knowledge he appears to be aware, herein transcending Campbell. But the knowledge only moves him to the assertion that Ben Jonson is "not so precise in his use of legal terms or in reports of legal proceedings" as is Shakespeare, and that in Beaumont and Fletcher, though both were lawyers, "we can find no such disposition or facility in the use of law terms or the procedure of the courts."* The last proposition may be left to work its effect on readers who have had in view the Baconian thesis that it was lawyership that inspired the alleged lawyerism of the plays. The first statement is simply false. As we have seen, Jonson uses a multitude of legal expressions of a more technical character than any used by Shakespeare; and his treatment of legal procedure is realistic where Shakespeare’s is merely romantic. On the trial scene in The Merchant of Venice the Senator pronounces that "The whole of this exquisite scene is forensic. The author’s mind, in its employment of legal terms, has, like the dyer’s hand, been subdued to what it works in."** On that particular folly, the reader may be referred to what has been said in the previous chapter. But the Senator’s words might with fair propriety be applied to the mimicry of legal procedure in Ben Jonson, as here:

Pru. Nor murmur her pretences: master Lovel
For so your libel here, or bill of complaint
Exhibited, in our high court of sovereignty,
At this first hour of our reign, declares
Against this noble lady, a disrespect
You have conceived, if not received, from her.

Host. Received: so the charge lies in our bill.

Pru. We see it, his learned counsel, leave your plaining. [124]
We that do love our justice above all
Our other attributes . . . do here enjoin

Host. Good! Pyu. Charge, will, and command
Her ladyship, pain of our high displeasure,
And the committing an extreme contempt
Unto the court, our crown and dignity. . . .
To entertain you for a pair of hours. . . .
To give you all the titles, all the privileges
The freedoms, favours, rights, she can bestow.
Or can be expected, from a lady of honour
Or quality, in discourse, access, address. . . .
For each hour a kiss To be ta’en freely, fully, and legally
Before us in our court here, and our presence.
      The New Inn, ii, 2.

Pru. Here set the hour; but first produce the parties,
And clear the court: the time is now of price. . . .

Ferret. Oyez, oyez, oyez.

Trundle. Oyez, oyez, oyez.

Ferret [Trundle repeating each line].
Whereas there hath been awarded—
By the queen regent of love—
In this high court of sovereignty—
Two special hours of address—
To Herbert Lovel, appellant—
Against the lady Frampul, defendant—
Herbert Lovel come into the court—
Make challenge to thy first hour—
And save thee and thy bail—

[Enter, Lady Frampul, and takes her place on the other side.]

Host. She makes a noble and a just appearance.
Set it down likewise, and how arm’d she comes.

Pru. Usher of Love’s court, give them both their oath
According to the form, upon Love’s missal.

Host. Arise, and lay your hands upon the book.
Herbert Lovel, appellant, and Lady Frances Frampul, defendant, you shall swear upon the liturgy of Love, Ovid de arte amandi, that you neither have, nor will have, nor in any wise bear about you, thing or things, pointed or blunt, within these lists, other than what are natural and allowed by the court: no inchanted arms or weapons, stones of virtue, herb of grace, charm, character, spell, philtre, or other power than Love’s only, and the justness of your cause. So help you Love, his [125] mother, and the contents of this book. Kiss it. [Lovel kisses the book.] Return unto your seats. —Crier, bid silence.

Ferret [Trundle repeating]
In the name of the sovereign of Love—
Notice is given by the court—
To the appellant and defendant—
That the first hour of address proceeds—
And Love save the sovereign—
Every man or woman keep silence, pain of imprisonment. . . .
[Conclusion]

Lady F. Prue, adjourn the court.

Pru. Cry, Trundle.

Trund. Oyez.
Any man or woman that hath any personal attendance
To give unto the court: keep the second hour,
And Love save the sovereign!
      Id. iii, 2.

All this in two scenes of one play. For more matter of the same order of realistic parody, see Cynthia’s Rebels, v, 2; Every Man Out of His Humour, iii, 1; The Poetaster, v, 1; The Silent Woman, v, 1; to say nothing of the Induction to Bartholomew Fair and the trial scene in Volpone. Could they have found a fraction of it in Shakespeare, Lord Campbell and Senator Davis would have thankfully dropped half the rest of their case; and the latter would have been more sure than ever that the dramatist knew more law than Beaumont and Fletcher. As it is, he is satisfied that Shakespeare must have had a hand in the play Sir John Oldcastle, because "the scene where Harpool forces the Sumner to eat the citation he has come to serve, and the other legal phrases, taken together, seem to indicate this."*** The Senator is unaware that just such a scene occurs in George a-Greene, which some deny to Robert Greene, but none, has yet assigned to Shakespeare; and seeing that just such an escapade is narrated of Greene by his friend Nashe,† the legalist’s simple solution of the authorship of the other play, it is to be feared, will not be found [126] decisive. And as Sir John Oldcastle undoubtedly contains legal matter such as (i, 1):

The King’s justices, perceiving what public mischief may ensue this private quarrel, in his majesty’s name do straitly charge and command all persons, of what degree soever, to depart this city of Hereford, except such as are bound to give attendance at this assize, and that no man presume to wear any weapon, especially Welsh-hooks and forest-bills—and that the Lord Powis do presently disperse and discharge his retinue, and depart the city in the King’s peace, he and his followers, on pain of imprisonment,

we are left to wonder whether Drayton; Hathway, Munday, and Wilson, to whom Fleay ascribes the play, were all lawyers like their dramatist brethren.

Characteristically, Senator Davis finds the best ground for ascribing Act I of The Two noble Kinsmen to Shakespeare in the fact that it includes the phrases, the tenor of thy speech, prorogue, fee, moiety, and "seal the promise."†† He can thus be thankful for small mercies; but if he had found in any alleged or putative Shakespearean play such a trial-scene as that in Massinger’s The Old Law, of which he declares that "as a forensic representation" it "is crude, lacks detail, and displays none of that pomp of justice which all courts of any dignity exhibit,"††† he would probably have seen it with other eyes. Massinger certainly yields many less scanty crops of quasi-legal terminology than that culled by the Senator from Act I of the Two Noble Kinsmen.

His treatise, in fine, is a piece of indiscriminate and uncritical special pleading, serving only to prove how a fixed idea can hypnotise judgment. Without adopting the Baconian theory, the Senator has taken up a standpoint which equally excludes any rational conception of dramatic art. For him the author of the plays is a writer obsessed with legal knowledge, and constantly bent on embodying it in the plays, to the extent of grafting it all over his recast of the old Hamlet, "all with the [127] greatest painstaking to be full and accurate"‡—if the end of drama for Shakespeare were the communication of legal lore. As we have seen, the entire conception is a hallucination. Shakespeare, like his corrivals ‘ made his characters talk law as they talked Euphuism, because it was the fashion of the age; and we have only to compare his legal phraseology with theirs to see that he was no more a lawyer than were Jonson, Chapman, Heywood, Greene, Peele, and Dekker in his own day, and Massinger after him.

§ 3. Castle

Something of a diversion is created in our inquiry by the performance of Mr. E. J. Castle, K.C., entitled Shakespeare, Bacon, Jonson, and Greene. Mr. Castle, albeit something of a Baconian, is driven, as we have seen, to reject the hyperbolical panegyric of Shakespeare’s law by Lord Campbell, and to formulate a theory of his own, to the effect that there are "non-legal" as well as "legal" plays; that in the latter only did the dramatist "receive assistance" from a lawyer, probably Bacon; and that in the former he makes so many mistakes as to prove that he "personally had not the education of a lawyer." We thus have one of the profession denying that all the plays exhibit a firm hold of its "freemasonry." Indeed he premises a doubt as to the force of the general argument from the use of legal terms.

I do not lay so much stress upon their presence in the plays, &c., as other persons have done, because I believe they are capable of being learned from books, and are therefore not so valuable a test, to my mind, as the familiarity with the habits and thoughts of counsel learned in the law, which I think is the peculiar characteristic of the legal plays.‡‡

Further, he notes that Lord Campbell was "in many [128] cases only repeating what Malone had said before him. The consequence of confining his attention to legal expressions is that he has missed entirely the more subtle evidence which points to the life and habits of a lawyer, which may not happen to be clothed in legal language.

I am not concerned to found upon this conflict of authorities, or to dwell upon the chaos which the half-and-half theory makes of the Baconian case in general. It is more important to point out that Mr. Castle is as innocent as Lord Campbell of any general knowledge of Elizabethan literature, and frames his own theory in vacuo, finding "subtle evidence" of lawyerism in what any familiarity with Elizabethan drama would have shown him to be the ordinary run of lay conversation. As little need we curiously inquire whether in the "nonlegal’ plays Shakespeare commits the "laughable mistakes" which Mr. Castle discovers. Mr. Castle speaks modestly enough of his handling of his own legal case, avowing that "mistakes may have crept in."‡‡‡ What is much more serious in his total ignorance of the similar literature of the period. He discusses the sonnets in general, No. 134 in particular, and the lawyerlike lines in Venus and Adonis, with no suspicion that other Elizabethan poets wrote so. The result is that when he proceeds to make his own contribution to the legal theory he wastes his labour as utterly as did Campbell.

Thus he finds "some of the most remarkable references to law" in Lucrece;‡‡‡‡ and he dwells especially on the use of the word "colour," which, he tells us, "as used in legal pleadings has a very specialized meaning." Knowing vaguely that the legal meaning has partly survived in ordinary language, he cites the definition that "colour in pleading is a feigned matter which the defendant or tenant uses in his bar," and so forth; concluding that "colour sets out a title which, though probable, is really false." Then he undertakes to show that "in the plays [129] we find ‘colour’ used in the strict legal sense as I have explained it, as well as in its more colloquial manner of pretence or appearance."

The very first instance he offers is conclusive against him. He cites:

That is to say, on Mr. Castle’s own interpretation; Caesar’s ambition put a yoke on Britain against a probable but false title. A layman could hardly be guilty of such self-stultification. The lines simply mean that Caesar usurped sovereignty in defiance of legal forms: there is no special or technical connotation whatever. Citing Florizel’s lines in the Winter’s Tale (iv, 3)

Mr. Castle uneasily writes: "Here the technical use of the word is perhaps not quite so certain, but I think a stronger meaning is given to the language if we use it in the legal sense of title or justification. However, in the next example, the word is used in its strict legal sense." The next example is the passage:

Then we have Beaufort’s

with the explanation that "the Cardinal does not seek a pretext, but a justification or title for the act, as he is to be condemned by law."

Any competent lay reader will at once see that the whole theorem is a mare’s nest. Shakespeare uses "colour" just as a hundred other Elizabethans use it in a sense which includes both "pretext" and [130] "justification." Pretext is alleged justification; and pretended title is just alleged title—Mr. Castle’s own definition. In this broad sense the word was used constantly in Shakespeare’s day. I find it four times in ten pages of Fenton’s translation of Guicciardini (1579):

They attempted, under colour to defend the liberty of the people of Milan, to make themselves lords of that State (p. 3).

The original of the colour under the which [two kings were] stirred up by the Popes to make many invasions ... (p. 12).

She brake that adoption under colour of ingratitude (Ib.).

The titles and colours of right changing with the time (p. 13).

Again we have it twice on two successive pages (24, 25):

To give some colour of justice to so great an injustice.

The better to strengthen their usurpation with a show of right, to strengthen first with colours lawful.

The translator of Gentillet’s diatribe against Machiavelli (1577) uses it as legally as may be:

He hath a certain subtilty (such as it is) to give colour unto his most wicked and damnable doctrines.
      Discourse upon the Means of Well Governing, &c., against Nicholas Machiavel,
      trans. by Simon Patericke. Ed. 1608, pref. A ii, verso.

The word was in fact of very old standing in common English. In Wiclif’s treatise Against the Orders of Friars we have the statement that the friars

colour their own wicked laws under the name of these saints . . . and so . . . sin is maintained by colour of holiness

and again:

In the sixteenth century it was in constant use. We have it frequently in Elyot’s Governour:

Inasmuch as liberality wholly resteth in the giving of money, it sometime coloureth a vice.
      B. II, c. 10 (Dent’s rep. p. 160). [131]

Under the colour of holy Scripture, which they do violently wrest to their purpose.
      B. III, c. 3 (p. 205).

It seems to have been equally common in books and in sermons. Thus we have it in Latimer’s sermons again and again:

Under a colour of religion they turned it [church property] to their own proper gain and lucre.
      Third Sermon before Edward VI.

And so under this colour they set all their hearts and minds only upon this world.
      Seventh Sermon on the Lord’s Prayer.

It occurs repeatedly in Ralph Robinson’s translation 4551) of More’s Utopia:

It is used in the same way by jewel (1565)

and again:

The translator (Tyndale?) of the Enchiridion Militis Christiani of Erasmus (1533) has:

With false title and under a feigned colour of honesty.
      Methuen’s rep. p. 75.

Lest under a colour of pastime he might entice . . .
      Id. p. 101.

___________

* The Law in Shakespeare, pp. 52-3. back

** Id. p. 116. back

*** The Law in Shakespeare, pp. 51-52. back

† Four Letters Confuted. Works, ed. McKerrow, i, 271. back

†† The Law in Shakespeare, p. 52. back

††† Id. p. 54. back

‡ The Law in Shakespeare, p. 14. back

‡‡ Shakespeare, Jonson, Bacon, and Greene. A Study. By Edward James Castle, One of Her Majesty's Counsel. (Late Lieutenant Royal Engineers.) London, 1897. p. 11. back

‡‡‡ Shakespeare, Jonson, Bacon, and Greene, p. 25. back

‡‡‡‡ Id. p. 18. back