PART
FIVE
LITIGATION AND LEGALISM
IN ELIZABETHAN ENGLAND
Apart from the endless allusions to concrete
litigation in Tudor literature, again, we find in the writings even
of the theologians constant evidence of the legalist habit of mind.
They often put religion in lawyer-fashion; knowing their readers would
so relish it. Thus Bishop [169] Hooper,
answering Bishop Gardiner on the subject of the Eucharist, writes of
the promise of God . . . of the which .
. . these Sacraments be testimonies, witnesses; as the seal annexed
unto the writing is a stablishment and making good of all things contained
and specified within the writing. This is used in all bargains, exchanges,
purchases, and contracts.
When the matter entreated
between two parties is fully concluded upon, it is confirmed with
obligations sealed interchangeably, that for ever those seals may
be a witness of such covenants as hath been agreed upon between the
both parties. And these writings and seals maketh not the bargain,
but confirmeth the bargain that is made. No man useth to give his
obligation of debtor before there is some contract agreed upon between
him and his creditor. No man useth to mark his neighbour’s ox or horse
in his mark before he be at a full price for the ox, or else were
it felony and theft to rob his neighbour. Every man useth to mark
his own goods, and not another man’s; so God, in the commonwealth
of his church, doth not mark any man in his mark, until such time
as the person that he marketh be his. There must first be had a communication
between God and the man, to know how he can make any contract of friendship
with his enemy, the living God.*
In a similar vein he
handles the Ten Commandments:
Forasmuch as there can be no contract,
peace, alliance, or confederacy between two persons or more, except
first the persons that will contract agree within themselves upon
such things as shall be contracted . . .; also, seeing these ten con-1mandments
are nothing else but the tables or writings that contain the conditions
of the peace between God and man, Gen. xix, and declareth at large
how and to what the persons named in the writings are bound unto the
other . . .; it is necessary to know how God and man was made at one,
that such conditions could be agreed upon and confirmed with such
solemn and public evidences, as these tables be, written with the
finger of God. The contents whereof bind God to aid and succour, keep
and preserve, warrant and defend man from all ill, both of body and
soul, and at the last to give him eternal bliss and everlasting felicity.**
[170]
And this comes from an evangelical writer;
a martyr, much prized in the generation following him.
After this we can understand
how a later divine, Thomas Adams, could deliver in a sermon the "legal"
passages cited from him by Mr. Judge Willis, and candidly quoted by
Mr. Greenwood,*** who can offer no better semblance
of a rebuttal than the suggestion that Adams had "probably
looked into some law books, and perhaps been thrown into legal
company." Now, the passages cited are so technical that, had Lord
Campbell found them in Shakespeare, he would have reckoned them "the
best stakes in his hedge," as Hooker would say. And if it be rational
to explain Adams’s law by the "probably" and the "perhaps"
above cited, why, in the name of reason and consistency, should not
the same suggestion hold in the case of Shakespeare?
It is idle on Mr. Greenwood’s part to fall
back on an appeal to the "intelligent and unprejudiced reader"
to go through the plays and poems and note "the persistence, the
accuracy with which he makes use of legal terms and legal allusions,
in season and out of season," and all the rest of it, "and
then say if he thinks these expressions; culled from the sermons of
Thomas Adams, furnish anything like a parallel case to that which we
have been considering." The intelligent and unprejudiced reader
will reply (1) that the expressions of Adams are more technically lawyerlike
than anything in Shakespeare, and (2) that parallel cases to Shakespeare’s
are furnished by half a dozen of the dramatists whom we have put in
evidence, and whom Mr. Greenwood, like Lords Campbell and Penzance and
the other lawyers, had never thought of examining—the only difference
being that Jonson and Webster and Chapman show much more knowledge
of and interest in law than does Shakespeare.
Mr. Greenwood’s answer to me on the subject
of The Devil’s Law Case is a sufficient proof that he had adopted
[171] the conclusions of Lord Campbell
without studying his exposition. I will not believe, unless he makes
affidavit to that effect, that he thinks the trial-scene in the Merchant
of Venice is lawyerlike in comparison with that in Webster’s play.
His attack on that is a mere distortion of the issue. He has prodigally
and blindly endorsed alike Lord Campbell and Mr. Castle and the other
legalists—save where he candidly avows (p. 381) that he "cannot
attach much weight to the judgment of a critic [Mr. Churton Collins]
who sees the trained lawyer’s hand in Titus Andronicus"
on the strength of such items as "affy," "warrants,"
"suum quique," "seizeth," "fee,"
"purchase," and so forth. But it is just on such things as
these that the case of Campbell is mostly built up. It includes even
far weaker items. If such data be disallowed, nine-tenths of his book
goes by the board at once.
Replying to Mr. Devecmon Mr. Greenwood strangely
protests (p. 400) against what he calls the "curious idea"
that "a dramatist cannot be a lawyer unless he makes his ladies
and laymen speak in the language that a trained lawyer would employ,"
Mr. Devecmon having shown that Shakespeare did not do so. At this line
of argument I must express my astonishment. Twice over, Mr. Greenwood
has in effect surrendered his case. Proceeding as he does upon Lord
Campbell’s deliverance, without examining the absurd evidence by which
it is supported, he at a pinch throws over that evidence while still
insisting upon the judge’s finding. Met by Judge Willis with more technical
legalisms than Shakespeare’s in the writings of a divine of Shakespeare’s
day, he denies that such instances furnish "any analogy with the
case of Shakespeare."
It is not (he goes
on) a question of the mere use of legal phrases or maxims, such as
"acknowledging a fine," "a writ ad melius
inquirendum," "non est inventus,"
"noverint universi," "seised," "volenti
non fit injuria," "tenants at will," "tenants
[172] in capite," "bargain and sale,"
and the like. The question is, whether Shakespeare, when we consider
his works as a whole, does not exhibit such a sound and accurate knowledge
of law, such a familiarity with legal life and customs, as could not
possibly have been acquired (or "picked up") by the Stratford
player; whether it be not the fact, as Richard Grant White puts it,
that "legal phrases flow from his pen as part of his vocabulary,
and parcel of his thought"? It is not to the purpose
to compile mere lists of legal terms and expressions from the
pages of other Elizabethan writers, and those who do so simply
display an ignoratio elenchi, as the old philosophers would
say.****
I regret to have to say that there is something
worse here than ignoratio elenchi; but I will not characterise
it further than by use of the phrase of the distinguished living statesman
who pronounced certain political arguments to be samples of the "black
arts of surrebuttal and surrejoinder." Mr. Greenwood has simply
sought to change the issue while professing to argue it. It is
a question of "the mere use of legal phrases or maxims" or,
still worse, of the inferences to be drawn from mere scoffing allusions
to the practices of lawyers. Campbell did not scruple to found on these
as proofs of an inside familiarity with legal life. He actually
cited the phrase "crow like a craven" as proof of a technical
knowledge of the law of wager by battle. Beyond such ineptitudes as
these, he could cite only the use of legal phrases, apart from a very
few claims as to legal knowledge being implied in the plots of plays.
To all the ineptitudes of Campbell’s case Mr. Greenwood is committed
when he founds on the deliverances which Campbell so justified. If
Mr. Greenwood means to assert that a "sound and accurate knowledge
of law" is to be proved in the plays apart from the use
of legal phrases, he is talking, I must say, even more heedlessly than
Campbell, for Campbell did at least make a parade of evidence in respect
of the legal phrases. Had Campbell found "writ ad melius
inquirendum" in Shakespeare he would have made it the headstone
[173] of the corner. It is really carrying
special pleading beyond the bounds of professional licence to turn round
as Mr. Greenwood does, after staking his whole case on a judgment†
founded on a "mere list of legal terms and expressions,"
and assert that lists of other men’s legal terms and expressions count
for nothing as against an alleged general knowledge of law in the Shakespeare
plays for which he has no other evidence worth mentioning,
I am at a loss I confess, to know finally
what Mr. Greenwood does mean; for in this very passage, disparaging
mere legal phrases, he resumes the claim that "legal phrases flow
from Shakespeare’s pen as part of his vocabulary and parcel of his thought."
Does he mean that other men’s legal phrases flowed from their pens in
some other way? If so, whose? The plain truth is that Mr. Greenwood
had never looked at the legal phrases of the other Elizabethan and Jacobean
dramatists. Had he done so, he would not have written his book. Indeed
I cannot believe that if, instead of taking Campbell’s mere dictum at
second hand from Lord Penzance, he had merely gone through the Shakespeare
plays ad hoc in the critical spirit in which he approached the
Shakespeare biography, he would ever have dreamt of formulating for
himself any legalist theory. Reading the trial scene in the Merchant
of Venice, he would have said of that, as he quite irrelevantly
says to me concerning the Devil’s Law Case, that it "contains
no law at all." He dismisses with just contempt the "legal"
phrases cited by Mr. Churton Collins from Titus Andronicus, and
agrees with Mr. Castle that the play "seems to do everything that
a lawyer would not do, and leave undone everything that he would."
I am curious to know whether he would say otherwise of the Merchant
of Venice, which Mr. Castle does not examine. But the phrases cited
by Mr. Collins from Titus are not a whit more [174]
nugatory than most of those founded upon by Campbell. Furthermore,
on his unfortunate presupposition that what eminent lawyers affirm in
his favour about law in Shakespeare must be true, Mr. Greenwood has
committed himself to Mr. Castle’s special claim about the use of "colour"
in Shakespeare, which we have seen to be as worthless as Campbell’s
and Grant Mite’s claim about "purchase," and Campbell’s case
in general.
Mr. Greenwood’s respect for legal opinion
vanishes, of course, when it goes against his thesis. We have seen how
he treats the dicta of Mr. Devecmon. I fancy that any open-minded lawyer
who has followed the discussion will give Mr. Greenwood short shrift—if
I may so mix professional metaphors. In his impatience of the other
lawyer’s contradiction, he unwittingly falls foul of a fellow legalist,
Senator Davis. From that writer Mr. Devecmon quoted the admission that
"Antony in speaking of the real estate left by Caesar to the Roman
people, does not use the appropriate word ‘devise.’" Upon which
Mr. Greenwood retorts (p. 403) that the dramatist was not "so absurdly
pedantic" as to make Antony use a correct legal expression when
the "left" of North sufficed. Then he proceeds to quote "the
critic" as saying that the expression "unto your heirs for
ever" was unnecessary. "Really, really!" exclaims Mr.
Greenwood, "This is just a little irritating." Perhaps; but
the offence comes from Senator Davis, who affirms in general the profundity
and accuracy of Shakespeare’s legal knowledge, not Mr. Devecmon, who
denies it! And only thirty pages earlier (p. 374), Mr. Greenwood had
cited this very Senator Davis as one giving weighty testimony
to Shakespeare’s command of a legal vocabulary in which "no legal
solecisms will be found." If then the irritating phrase is, as
Mr. Greenwood protests, "surely an argument fit only for the least
intelligent of readers," the protest should go to the right address.
When he repugns against
Mr. Devecmon’s criticisms [175] of Shakespeare’s
law, Mr. Greenwood merely cuts the bough on which he sits. In an amusing
footnote he quotes from my book on Titus Andronicus the phrase
"putting a few necessary caveats." "No lawyer,"
he comments, "would speak of ‘putting a caveat.’ The legal term
is to ‘enter a caveat.’" And the compiler of his index sternly
clinches the matter by the entry, "Robertson, Mr. J. M., betrays
his ignorance on law, 372, note." The most amusing item of all,
perhaps, is that I happen to have spent four and a half years of my
youthful life in a law office. But it was a Scotch office (to say nothing
of the fact that I was immensely more interested in literature than
in law); and in Scotch law they do not, to my recollection, speak of
"caveats," which word is therefore for me simple English,
and not "jargon." "Enter a caveat" is a phrase well
entitled to the latter label. But let Mr. Greenwood’s and the indexer’s
judgment stand: what then becomes of Mr. Greenwood’s attempted rebuttal
of Mr. Devecmon?†† He really cannot have
it both ways. If he insists that no lawyer would say "put a caveat,"
he has quashed his own objection to the argument that Shakespeare makes
his characters talk law as no lawyer would. He does not deny that Shakespeare
makes Queen Catherine "challenge" a judge, as lawyers "challenge"
jurors. Then Shakespeare was no lawyer. It is idle for Mr. Greenwood
to say that "challenge" was used in a general sense. What
about "caveat"? . . . [176]
I am not concerned to follow Mr. Greenwood
through the rest of the difficulties in which he has enmeshed himself.
It is sufficient to repeat that he cannot without self-stultification
plead that the laxities of Shakespeare’s law do not prove him to have
been no lawyer. The summing-up of Campbell, upon which Mr. Greenwood
proceeded, was to the effect that Shakespeare did invariably
use legal terms—that is, make his characters use them—as a trained lawyer
would. It was Mr. Greenwood’s citation of that and similar enormities
of nonsense that enabled Mark Twain to die contented in the Baconian
faith. The breakdown of Campbell’s case at the first serious push tells
of the levity with which it was framed. But if we allow Mr. Greenwood
to recall Campbell’s extravagances and restate the proposition as he
will, it is annihilated for every candid student by that comparison
of the Shakespeare plays with those of his contemporaries which has
been made in these pages, and which neither Campbell nor Mr. Greenwood
attempted.
When, then, Mr. Greenwood winds up his legal
chapter by citing the passage about "common" and "several"
from Love’s Labour’s Lost (ii, 1), and the similar passage from
the Sonnets, and triumphantly puts the questions, "Did the provincial
player, the ‘Stratford rustic,’ write such sonnets as those [i.e.
the various ‘legal’ sonnets] I have quoted? Is it his law which
appears in Venus’s allusion to a common money bond, or in the various
passages of Lucrece? Did he write the travesty of ‘Hales
v. Petit’ in Hamlet? Did he discourse of common of pasture
‘and’ severalty ‘in Love’s Labour’s Lost? Is it to him
that we owe the thousands (!) of legal allusions scattered throughout
the plays?"—to the whole series of challenges we answer, Yes!—with
the qualification that "thousands" should be "dozens."
On the very previous page Mr. Greenwood had obliviously cited an allusion
to a "several" in the First Part of Sir John Oldcastle.
Was that play written by a lawyer? The jesting [177]
figure about "common" and "enclosed" ground,
applied to a woman, occurs twice in Dekker’s Honest Whore (Pt.
II, iv, 1). Was that written by a lawyer? In Bacon’s Apoththegms
Mr. Greenwood will find a sufficiently free jest about "common
and several" ascribed to Sir Walter Raleigh. Was Raleigh a lawyer?
And can Mr. Greenwood doubt that such stories were widely current in
Shakespeare’s day? In his own words, "I think not. Credat Judaeus";
or let us rather say, "Credant judices"—Campbell and
Penzance!
The other items in Mr. Greenwood’s challenge
are as void as this. We have seen them one and all put down on test.
His final affirmation of "profusion of legal phraseology and wealth
of legal knowledge," made without any judicial comparison of Shakespeare’s
plays with other men’s, will not, I trust, be repeated after such a
comparison has been laid before him. But I am moved to put two additional
challenges, after the model of his. (1) If "Shakspere" the
actor were a "Stratford rustic," why on earth should
that rustic, of all people, be supposed to be ignorant of the rurally
notorious facts about the usage of "common" and "several"?
But why, on the other hand, should Shakespeare, coming to London in
early manhood and living there till near his death, be singled out for
rusticity any more than Bacon? Myself born a rustic, I have some interest
in the answer.
__________
* Answer to the Bishop of Winchester,
Parker Soc. vol. p. 136. back
** Declaration of the Ten Commandments:
pref. "Unto the Christian Reader," 1550. back
*** The Shakespeare Problem Restated,
pp. 392-3. back
**** Work cited, p. 395. back
† Lord Penzance, be it remembered,
merely quoted Campbell, making no investigation of his own. back
†† At one point, I will
offer Mr. Greenwood my humble literary support against Mr. Devecmon,
my ally. Mr. Devecmon criticises Shakespeare's use of "statutes" in
Love's Labour's Lost, i, 1. "A statute," he objects, "is an act
of the legislature." It was really other things as well! Apart from
its perfectly legitimate application to the laws of a college, the word
was habitually applied in Shakespeare's day to "statutes marchant" &c.
without the defining term. I think my ally is in the wrong for once-in
the course of an argument in which he is overwhelmingly in the right.
back