VIII
Shakespeare as a Lawyer[1]
THE Plays and Poems of Shakespeare supply ample evidence
that their author not only had a very extensive and accurate
knowledge of law, but that he was well acquainted with the
manners and customs of members of the Inns of Court and with
legal life generally.
"While novelists and dramatists are constantly making
mistakes as to the laws of marriage, of wills, and inheritance, to
Shakespeare's law, lavishly as he expounds it, there can neither be
demurrer, nor bill of exceptions, nor writ of error." Such was the
testimony borne by one of the most distinguished lawyers of the
nineteenth century
who was raised to the high office of Lord Chief
Justice in 1850, and subsequently became Lord Chancellor. Its
weight will, doubtless, be more appreciated by lawyers than by
laymen, for only lawyers know how impossible it is for those who
have not served an apprenticeship to the law to avoid displaying
their ignorance if they venture to employ legal terms and to discuss
legal doctrines. "There is nothing so dangerous," wrote Lord
Campbell, "as for one not of the craft to tamper with our
freemasonry." A layman is certain to betray himself by using some
expression which a lawyer would never employ. Mr. Sidney Lee
himself supplies us with an example of this. He writes (p. 164):
"On February 15, 1609, Shakespeare . . . obtained judgment from a
jury against Addenbroke for the payment of No. 6, and No. 1. 5
s.
0
d. costs." Now a lawyer would never have spoken of obtaining
"judgment from a jury," for it is the function of a jury not to
deliver judgment (which is the prerogative of the court), but to find
a verdict on the facts. The error is, indeed, a venial
one, but it is
just one of those little things which at once enable a lawyer to
know if the writer is a layman or "one of the craft."
But when a layman ventures to plunge deeply into legal
subjects, he is naturally apt to make an exhibition of his
incompetence. "Let a non-professional man, however acute," writes
Lord Campbell again, "presume to talk law, or to draw illustrations
from legal science in discussing other subjects, and he will speedily
fall into laughable absurdity."
And what does the same high authority say about
Shakespeare? He had "a deep technical knowledge of the law," and
an easy familiarity with "some of the most abstruse proceedings in
English jurisprudence." And again: "Whenever he indulges this
propensity he uniformly lays down good law." Of Henry IV., Part
2, he says: "If Lord Eldon could be supposed to have written the
play, I do not see how he could be chargeable with having
forgotten any of his law while writing it." Charles and Mary
Cowden Clarke speak of "the marvelous intimacy which he
displays with legal terms, his frequent adoption
of them in
illustration, and his curiously technical knowledge of their form
and force." Malone, himself a lawyer, wrote: "His knowledge of
legal terms is not merely such as might be acquired by the casual
observation of even his all-comprehending mind; it has the
appearance of technical skill." Another lawyer and well-known
Shakespearean, Richard Grant White, says: "No dramatist of the
time, not even Beaumont, who was the younger son of a judge of
the Common Pleas, and who after studying in the Inns of Court
abandoned law for the drama, used legal phrases with Shakespeare's
readiness and exactness. And the significance of this fact is
heightened by another, that it is only to the language of the law
that he exhibits this inclination. The phrases peculiar to other
occupations serve him on rare occasions by way of description,
comparison or illustration, generally when something in the scene
suggests them, but legal phrases flow from his pen as part of his
vocabulary, and parcel of his thought. Take the word 'purchase'
for instance, which, in ordinary
use, means to acquire by giving
value, but applies in law to all legal modes of obtaining property
except by inheritance or descent, and in this peculiar sense the
word occurs five times in Shakespeare's thirty-four plays, and only
in one single instance in the fifty-four plays of Beaumont and
Fletcher. It has been suggested that it was in attendance upon the
courts in London that he picked up his legal vocabulary. But this
supposition not only fails to account for Shakespeare's peculiar
freedom and exactness in the use of that phraseology, it does not
even place him in the way of learning those terms his use of which
is most remarkable, which are not such as he would have heard at
ordinary proceedings at
nisi prius, but such as refer to the tenure
or transfer of real property, 'fine and recovery,' 'statutes
merchant,' 'purchase,' 'indenture,' 'tenure,' 'double voucher,'
'fee simple,' 'fee farm,' 'remainder,' 'reversion,' 'forfeiture,' etc.
This conveyancer's jargon could not have been picked up by
hanging round the courts of law in London two hundred and fifty
years ago, when suits as to the title of real property were
comparatively rare. And beside, Shakespeare uses his law just as
freely in his first plays, written in his first London years, as in
those produced at a later period. Just as exactly, too; for the
correctness and propriety with which these terms are introduced
have compelled the admiration of a Chief Justice and a Lord
Chancellor."
Senator Davis wrote: "We seem to have something more
than a sciolist's temerity of indulgence in the terms of an
unfamiliar art. No legal solecisms will be found. The abstrusest
elements of the common law are impressed into a disciplined
service. Over and over again, where such knowledge is unexampled
in writers unlearned in the law, Shakespeare appears in perfect
possession of it. In the law of real property, its rules of tenure and
descents, its entails, its fines and recoveries, their vouchers and
double vouchers, in the procedure of the Courts, the method of
bringing writs and arrests, the nature of actions, the rules of
pleading, the
law of escapes and of contempt of court, in the
principles of evidence, both technical and philosophical, in the
distinction between the temporal and spiritual tribunals, in the law
of attainder and forfeiture, in the requisites of a valid marriage, in
the presumption of legitimacy, in the learning of the law of
prerogative, in the inalienable character of the Crown, this
mastership appears with surprising authority."
To all this testimony (and there is much more which I have
not cited) may now be added that of a great lawyer of our own
times, viz.: Sir James Plaisted Wilde, Q.C. 1855, created a Baron of
the Exchequer in 1860, promoted to the post of Judge-Ordinary
and Judge of the Courts of Probate and Divorce in 1863, and better
known to the world as Lord Penzance, to which dignity he was
raised in 1869. Lord Penzance, as all lawyers know, and as the late
Mr. Inderwick, K.C., has testified, was one of the first legal
authorities of his day, famous for his "remarkable grasp of legal
principles, and "endowed by nature with a remarkable
facility for
marshalling facts, and for a clear expression of his views."
Lord Penzance speaks of Shakespeare's "perfect familiarity
with not only the principles, axioms, and maxims, but the
technicalities of English law, a knowledge so perfect and intimate
that he was never incorrect and never at fault. . .The mode in
which this knowledge was pressed into service on all occasions to
express his meaning and illustrate his thoughts, was quite
unexampled. He seems to have had a special pleasure in his
complete and ready mastership of it in all its branches. As
manifested in the plays, this legal knowledge and learning had
therefore a special character which places it on a wholly different
footing from the rest of the multifarious knowledge which is
exhibited in page after page of the plays. At every turn and point
at which the author required a metaphor, simile, or illustration, his
mind ever turned first to the law. He seems almost to have thought
in legal phrases, the commonest of legal expressions were ever at
the end of his pen in description or
illustration. That he should
have descanted in lawyer language when he had a forensic subject
in hand, such as Shylock's bond, was to be expected, but the
knowledge of law in 'Shakespeare' was exhibited in a far different
manner: it protruded itself on all occasions, appropriate or
inappropriate, and mingled itself with strains of thought widely
divergent from forensic subjects." Again: "To acquire a perfect
familiarity with legal principles, and an accurate and ready use of
the technical terms and phrases not only of the conveyancer's
office but of the pleader's chambers and the Courts at Westminster,
nothing short of employment in some career involving constant
contact with legal questions and general legal work would be
requisite. But a continuous employment involves the element of
time, and time was just what the manager of two theaters had not
at his disposal. In what portion of Shakespeare's (
i.e. Shakspere's)
career would it be possible to point out that time could be found
for the interposition of a legal employment in the chambers or
offices of practicing lawyers?"
Stratfordians, as is well known, casting about for some
possible explanation of Shakespeare's extraordinary knowledge of
law, have made the suggestion that Shakespeare might, conceivably,
have been a clerk in an attorney's office before he came to London.
Mr. Collier wrote to Lord Campbell to ask his opinion as to the
probability of this being true. His answer was as follows: "You
require us to believe implicitly a fact, of which, if true, positive and
irrefragable evidence in his own handwriting might have been
forthcoming to establish it. Not having been actually enrolled as an
attorney, neither the records of the local court at Stratford nor of
the superior Courts at Westminster would present his name as
being concerned in any suit as an attorney, but it might reasonably
have been expected that there would be deeds or wills witnessed by
him still extant, and after a very diligent search none such can be
discovered."
Upon this Lord Penzance comments: "It cannot be doubted
that Lord Campbell was right in this. No young man could have
been at work in an attorney's office without being called upon
continually to act as a witness, and in many other ways leaving
traces of his work and name." There is not a single fact or incident
in all that is known of Shakespeare, even by rumor or tradition,
which supports this notion of a clerkship. And after much
argument and surmise which has been indulged in on this subject,
we may, I think, safely put the notion on one side, for no less an
authority than Mr. Grant White says finally that the idea of his
having been clerk to an attorney has been "blown to pieces."
It is altogether characteristic of Mr. Churton Collins that
he, nevertheless, adopts this exploded myth. "That Shakespeare was
in early life employed as a clerk in an attorney's office, may be
correct. At Stratford there was by royal charter a Court of Record
sitting every fortnight, with six attorneys, beside the town clerk,
belonging to it, and it is certainly not straining probability to
suppose that the young Shakespeare may have had employment in
one of
them. There is, it is true, no tradition to this effect, but
such traditions as we have about Shakespeare's occupation between
the time of leaving school and going to London are so loose and
baseless that no confidence can be placed in them. It is, to say the
least, more probable that he was in an attorney's office than that
he was a butcher killing calves 'in a high style,' and making
speeches over them."
This is a charming specimen of Stratfordian argument.
There is, as we have seen, a very old tradition that Shakespeare was
a butcher's apprentice. John Dowdall, who made a tour in
Warwickshire in 1693, testifies to it as coming from the old clerk
who showed him over the church, and it is unhesitatingly accepted
as true by Mr. Halliwell-Phillipps. (Vol. I, p. II, and see Vol. II, p.
71, 72.) Mr. Sidney Lee sees nothing improbable in it, and it is
supported by Aubrey, who must have written his account some
time before 1680, when his manuscript was completed. Of the
attorney's clerk hypothesis, on the other hand, there is not the
faintest vestige
of a tradition. It has been evolved out of the fertile
imaginations of embarrassed Stratfordians, seeking for some
explanation of the Stratford rustic's marvelous acquaintance with
law and legal terms and legal life. But Mr. Churton Collins has not
the least hesitation in throwing over the tradition which has the
warrant of antiquity and setting up in its stead this ridiculous
invention, for which not only is there no shred of positive
evidence, but which, as Lord Campbell and Lord Penzance point
out, is really put out of court by the negative evidence, since "no
young man could have been at work in an attorney's office
without being called upon continually to act as a witness, and in
many other ways leaving traces of his work and name." And as Mr.
Edwards further points out, since the day when Lord Campbell's
book was published (between forty and fifty years ago), "every old
deed or will, to say nothing of other legal papers, dated during the
period of William Shakespeare's youth, has been scrutinized over
half a dozen shires, and not one signature of the young man has
been found."
Moreover, if Shakespeare had served as clerk in an
attorney's office it is clear that he must have so served for a
considerable period in order to have gained (if indeed it is credible
that he could have so gained) his remarkable knowledge of law.
Can we then for a moment believe that, if this had been so,
tradition would have been absolutely silent on the matter? That
Dowdall's old clerk, over eighty years of age, should have never
heard of it (though he was sure enough about the butcher's
apprentice), and that all the other ancient witnesses should be in
similar ignorance!
But such are the methods of Stratfordian controversy.
Tradition is to be scouted when it is found inconvenient, but cited
as irrefragable truth when it suits the case. Shakespeare of Stratford
was the author of the Plays and Poems, but the author of the Plays
and Poems could not have been a butcher's apprentice. Away,
therefore, with tradition. But the author of the Plays and Poems
must have had a very large and a very accurate knowledge of the
law. Therefore,
Shakespeare of Stratford must have been an
attorney's clerk! The method is simplicity itself. By similar
reasoning Shakespeare has been made a country schoolmaster, a
soldier, a physician, a printer, and a good many other things beside,
according to the inclination and the exigencies of the commentator.
It would not be in the least surprising to find that he was studying
Latin as a schoolmaster and law in an attorney's office at the same
time.
However, we must do Mr. Collins the justice of saying that
he has fully recognized, what is indeed tolerably obvious, that
Shakespeare must have had a sound legal training. "It may, of
course, be urged," he writes, "that Shakespeare's knowledge of
medicine, and particularly that branch of it which related to
morbid psychology, is equally remarkable, and that no one has ever
contended that he was a physician. (Here Mr. Collins is wrong;
that contention also has been put forward.) It may be urged that
his acquaintance with the technicalities of other crafts and callings,
notably of marine and
military affairs, was also extraordinary, and
yet no one has suspected him of being a sailor or a soldier. (Wrong
again. Why even Messrs. Garnett and Gosse 'suspect' that he was
a soldier!) This may be conceded, but the concession hardly
furnishes an analogy. To these and all other subjects he recurs
occasionally, and in season, but with reminiscences of the law his
memory, as is abundantly clear, was simply saturated. In season and
out of season now in manifest, now in recondite application, he
presses it into the service of expression and illustration. At least a
third of his myriad metaphors are derived from it. It would indeed
be difficult to find a single act in any of his dramas, nay, in some
of them, a single scene, the diction and imagery of which is not
colored by it. Much of his law may have been acquired from three
books easily accessible to him, namely Tottell's
Precedents (1572),
Pulton's
Statutes (1578), and Fraunce's
Lawier's Logike (1588), works
with which he certainly seems to have been familiar; but much of
it could only have
come from one who had an intimate
acquaintance with legal proceedings. We quite agree with Mr.
Castle that Shakespeare's legal knowledge is not what could have
been picked up in an attorney's office, but could only have been
learned by an actual attendance at the Courts, at a Pleader's
Chambers, and on circuit, or by associating intimately with
members of the Bench and Bar."
This is excellent. But what is Mr. Collins' explanation.
"Perhaps the simplest solution of the problem is to accept the
hypothesis that in early life he was in an attorney's office (!), that
he there contracted a love for the law which never left him, that
as a young man in London, he continued to study or dabble in it
for his amusement, to stroll in leisure hours into the Courts, and
to frequent the society of lawyers. On no other supposition is it
possible to explain the attraction which the law evidently had for
him, and his minute and undeviating accuracy in a subject where
no layman who has indulged in such copious and ostentatious
display of
legal technicalities has ever yet succeeded in keeping
himself from tripping."
A lame conclusion. "No other supposition" indeed! Yes,
there is another, and a very obvious supposition, namely, that
Shakespeare was himself a lawyer, well versed in his trade, versed
in all the ways of the courts, and living in close intimacy with
judges and members of the Inns of Court.
One is, of course, thankful that Mr. Collins has appreciated
the fact that Shakespeare must have had a sound legal training, but
I may be forgiven if I do not attach quite so much importance to
his pronouncements on this branch of the subject as to those of
Malone, Lord Campbell, Judge Holmes, Mr. Castle, K.C., Lord
Penzance, Mr. Grant White, and other lawyers, who have
expressed their opinion on the matter of Shakespeare's legal
acquirements. . . .
Here it may, perhaps, be worth while to quote again from
Lord Penzance's book as to the suggestion that Shakespeare had
somehow or other managed "to acquire a perfect familiarity with
legal principles, and an
accurate and ready use of the technical
terms and phrases, not only of the conveyancer's voice, but of the
pleader's chambers and the courts at Westminster." This, as Lord
Penzance points out, "would require nothing short of employment
in some career involving
constant contact with legal questions and
general legal work." But "in what portion of Shakespeare's career
would it be possible to point out that time could be found for the
interposition of a legal employment in the chambers or offices of
practicing lawyers?. . .It is beyond doubt that at an early period he
was called upon to abandon his attendance at school and assist his
father, and was soon after, at the age of sixteen, bound apprentice
to a trade. While under the obligation of this bond he could not
have pursued any other employment. Then he leaves Stratford and
comes to London. He has to provide himself with the means of a
livelihood, and this he did in some capacity at the theater. No one
doubts that. The holding of horses is scouted by many, and
perhaps with justice, as
being unlikely and certainly unproved; but whatever the nature of
his employment was at the theater, there is hardly room for the
belief that it could have been other than continuous, for his
progress there was so rapid. Ere long he had been taken into the
company as an actor, and was soon spoken of as a 'Johannes
Factotum.' His rapid accumulation of wealth speaks volumes for
the constancy and activity of his services. One fails to see when
there could be a break in the current of his life at this period of it,
giving room or opportunity for legal or indeed any other
employment. 'In 1589,' says Knight, 'we have undeniable evidence
that he had not only a casual engagement, was not only a salaried
servant, as many players were, but was a shareholder in the
company of the Queen's players with other shareholders below
him on the list.' This (1589) would be within two years after his
arrival in London, which is placed by White and Halliwell-Phillipps
about the year 1587. The difficulty in supposing that,
starting with a state of ignorance in 1587, when he is
supposed to have come to London, he was induced to enter upon a course of
most extended study and mental culture, is almost insuperable. Still
it was physically possible, provided always that he could have had
access to the needful books. But this legal training seems to me to
stand on a different footing. It is not only unaccountable and
incredible, but it is actually negatived by the known facts of his
career.' Lord Penzance then refers to the fact that "by 1592
(according to the best authority, Mr. Grant White) several of the
plays had been written.
The Comedy of Errors in 1589,
Love's
Labou's Lost in 1589,
Two Gentlemen of Verona in 1589 or 1590,
and so forth, and then asks, "with this catalogue of dramatic work
on hand. . .was it possible that he could have taken a leading part
in the management and conduct of two theaters, and if Mr.
Phillipps is to be relied upon, taken his share in the performances
of the provincial tours of his company—and at the same time
devoted himself to the study of the law in all its branches so
efficiently as to make himself complete
master of its principles and
practice, and saturate his mind with all its most technical terms?"
I have cited this passage from Lord Penzance's book,
because it lay before me, and I had already quoted from it on the
matter of Shakespeare's legal knowledge; but other writers have
still better set forth the insuperable difficulties, as they seem to me,
which beset the idea that Shakespeare might have found time in
some unknown period of early life, amid multifarious other
occupations, for the study of classics, literature and law, to say
nothing of languages and a few other matters. Lord Penzance
further asks his readers: "Did you ever meet with or hear of an
instance in which a young man in this country gave himself up to
legal studies and engaged in legal employments, which is the only
way of becoming familiar with the technicalities of practice, unless
with the view of practicing in that profession? I do not believe that
it would be easy, or indeed possible, to produce an instance in
which the law has been seriously studied in all its
branches, except
as a qualification for practice in the legal profession."
This testimony is so strong, so direct, so authoritative; and
so uncheapened, unwatered by guesses, and surmises, and maybe-so's,
and might-have-beens, and could-have-beens, and must-have-beens,
and the rest of that ton of plaster of paris out of which the
biographers have built the colossal brontosaur which goes by the
Stratford actor's name, that it quite convinces me that the man
who wrote Shakespeare's Works knew all about law and lawyers.
Also, that that man could not have been the Stratford
Shakespeare and—wasn't.
Who did write these Works, then?
I wish I knew.
[[1]]
From Chapter XIII of "The Shakespeare Problem Restated."