Part Two - Shakespeare's Alleged Blunders
in Legal Terminology

On this passage Devecmon quotes "Co. Litt." 46: "Jointress, a woman who has an estate settled on her by her husband, to hold during her life if she survive him." He comments, "Queen Gertrude could have neither a dower nor a jointure in the Kingdom, of Denmark."

Answer. 1. King Claudius in the eleventh century, courting popularity, and not having the fear of English or American lawyers before his eyes, uses both the word "imperial" and the word "jointress" with poetic vagueness, yet with a deceitful assumption of right, as if Gertrude were indeed an empress dowager. The phrase "imperial jointress" is adroitly used, and it shows Shakespeare’s deep insight into the king’s cunning.

2. If not so, the word, being quite rare, may well be used, as most commentators claim, simply for "sharer, partner, joint occupant."

Devecmon asserts, "Shakespeare doubtless knew that one cannot at the same time hold a thing in common and in severalty; and if so, he here sacrifices his knowledge for a mere play on words, which I fancy a professional pride, if he had any legal training, would not have permitted him to do."

Answer. This is a question not of knowledge but of taste. Would Shakespeare, if he had been a trained lawyer, have perpetrated such puns? Perhaps not. The study of the law has a solemnizing effect, and might well prevent total depravity from outcropping in that particular form. But why not let Lady Maria have her little joke, catching at the words "common" and "several" that she has sometimes heard? "My lips are several [more than one in number], but not common [for more than one kisser!] No blunder here.

Devecmon. "Senator Davis admits an inaccuracy here. * * * This is an attempt to grant the crown, subject to a condition subsequent."

Answer. 1. The king is excited. In his distress he utters words too strong, "entail" for bestow, yield, relinquish. He is in no mood to choose or weigh his words. His incorrectness shows his agitation. The inaccuracy in this light is a beauty, not a blemish.

2. If we still insist that the inexactness is the result of ignorance, we may well remember that many of the best scholars deny that Shakespeare was the author of this passage. Fleay assigns it to George Peele.

Devecmon. "The word ‘statutes’ is here used to mean simply articles of agreement. It has no such meaning in law."

Answer. 1. If such be indeed the meaning here, the word may be used with poetic exaggeration, to make the agreement seem more imperative. The phrase "keep statutes" is biblical and has an odor of divine authority (Ps. CXIX, 5, 8, etc.).

2. Inasmuch as "statutes" is here interchangeable with "decrees" (line 117), "law" (line 127), "laws" (153), we infer a priori that the so-called "agreements" are expressed in the form of rules. Accordingly we find the proper statute form in lines 119, 120; "No, woman shall come within a mile of my court;" also in lines 128-130; "If any man be seen to talk with a woman within the limit of three years, he shall endure such public shame as the rest of the court can possibly devise." Is not the word "statutes" exactly right?

Devecmon. "He was not arrested on the case. Civil actions at law are broadly divided into two classes; actions ex contractu and actions ex delicto." Devecmon implies that Shakespeare did not realize the difference.

Answer. 1. The clown probably means simply that his master is arrested, the words "on the case" not meaning necessarily in an action of tort, but in a suit or matter at law.

2. But if we must interpret more technically, we must remember that here apparently was fraud. A man obtains from a jeweler a gold chain, and almost instantly not only refuses to pay for it, but denies stoutly that he has received it! The circumstances seemed to justify arrest "on the case."

3. But suppose the clown really blunders in his law terms. What then? If in far away Ephesus, a thousand or two years ago, a clown is made by Shakespeare to use incorrectly a phrase of English litigation, shall we impute it to the dramatist’s ignorance?

Further to discredit Shakespeare’s acquaintance with legal usages, he remarks, "Justice must be administered in a very primitive style, where one who claims that another is indebted to him can call an officer, and say, ‘Here, officer, this man owes me money, arrest him.’"

Answer. 1. This was not a case of mere indebtedness.

2. What evidence have we that the law in Ephesus did not permit such summary action?

3. What evidence that the policeman never overstepped his authority?

Devecmon. "The use of the word ‘testament’ is here incorrect. A testator bequeaths personal property by a ‘testament;’ he devises real estate by a ‘will.’"

Answer. 1. A little later in his book, PP. 47, 48, Devecmon admits the general identity of "will" and "testament." He says "Will or testament (which latter word is essentially identical in meaning with ‘will’). Testamentuin ex eo appellatur, quod testatio mentis sit." Cotgrave in his Dictionary (1660) makes them to mean the same. So Shakespeare repeatedly; e. g. Julius Caesar, III, ii, 128, 152, Sprague’s ed.; As You Like It, I, i, 62, 68, Sprague’s ed.

2. The archbishop who is speaking (A. D. 1414), would naturally, after the manner of prelates, use the Latin or Norman French "testamentum" or "testament" rather than the Anglo-Saxon "will," to characterize a "solemn declaration in writing."

Here Devecmon would criticise adversely the omission of the word "devise," and the insertion of the expression "to your heirs forever."

Answer. 1. The Roman populace that Antony was addressing would not have understood the technical word "devise." The speech, being intended for immediate effect, is characterized by extraordinary simplicity of language.

2. The words "to your heirs forever" are artfully introduced to make the illiterate crowd feel keenly that Caesar was a real benefactor not only to them but to their children and all their posterity. Felicitous rather than unfortunate are that omission and that insertion.

Devecmon. "It is hardly conceivable that any lawyer, or any one who had spent a considerable time in a lawyer’s office, in Shakespeare’s age, could have been guilty of the egregious error of calling a bond with a collateral condition a ‘single bond.’"

Answer. i. The bond spoken of by Shylock to entrap Antonio has a condition inserted merely "in a merry sport." Such a condition is ipso facto null and void, tantamount to no condition.

2. Shylock speaks as a Venetian Jew hundreds of years before the English jurists had made known to the world the definition of "single bond."

3. It is but fair to interpret the words in their natural and obvious rather than their technical and esoteric sense; a "single bond" being, as nearly all the best critics agree, a bond with the single signature of the obligor, i. e. without surety.