as Lord Chief Justice _in the new reign_; but, according to law and
custom, he was removable, and he no doubt expected to be removed, from
his office." Lord Campbell has yet to rival the fifth wife of the
missionary who wrote the lives of "her predecessors"; but surely _he_
should have known that the expectations which he attributes to Sir
William Gascoigne were not disappointed, and that (although the contrary
is generally believed) the object of Falstaff's menace was superseded
(by Sir William Hankford) March 29th, 1413, just eight days after the
prince whom he committed to prison came to the throne,--a removal the
promptness of which would satisfy the strictest disciplinarian in the
Democratic party. The Records show this; but his Lordship need not have
gone to them; he would have found it mentioned, and the authority cited,
by Tyler in his "Memoirs of Henry the Fifth."
And while we are considering the disparity between his Lordship's
performances and his pretensions, we may as well examine his fitness to
bring about a "fusion of Law and Literature," which he says, with some
reason, have, like Law and Equity, been too long kept apart in England.
We fear, that, whatever may be the excellence of his Lordship's
intentions, he must set himself seriously to the task of acquiring more
skill in the use of the English tongue, and a nicer discrimination
between processes of thought, before his writings will prove to be the
flux that promotes that fusion.
For, in the third paragraph of his letter, he says to Mr. Collier, "I
cannot refuse to communicate to you my _sentiments_ upon the subject,"
and in the following sentence adds, that this communication of his
"_sentiments_" will drive from his mind "the _recollection_ of the
wranglings of Westminster Hall." His Lordship probably meant to refer to
the communication of his _opinions_, for which word "sentiments" is
not usually substituted, except by gentlemen who remark with emphasis,
"Them's my sentiments"; and he also probably intended to allude to
the _memory_ of the wranglings of which he is professionally a
witness,--having forgotten, for a moment, that recollection is a purely
voluntary act, and not either a condition or a faculty of the mind.
Again, when his Lordship says, (p. 18,) "That during this interval (A.D.
1579 to 1586) he [Shakespeare] was merely an operative, earning his
bread by manual labor, in stitching gloves, sorting wool, or killing
calves, no sensible man can possibly _imagine_" we applaud the decision;
but can hardly do as much for the language in which it is expressed.
Lord Campbell quite surely meant to say that no man could possibly
_believe_, or _suppose_, or _assent to_ the proposition which he sets
forth; and when (on p. 26) he again says, "I do not _imagine_ that when
he [Shakespeare] went up to London, he carried a tragedy in his pocket,"
there can be no doubt that his Lordship meant to say, "I do not _think_
that when," etc. He should again have gathered from his Shakespearean
studies a lesson in the exact use of language, and have learned from the
lips of "that duke hight Theseus" that imagination has nothing to do
with assent to or dissent from a proposition, but that
"The lunatic, the lover, and the poet
Are of imagination all compact:
* * * * *
And, as imagination bodies forth
The forms of things unknown, the poet's pen
Turns them to shapes, and gives to airy nothing
A local habitation and a name."
_A Midsummer Night's Dream_, Act V. Sc. 1.
We would not protract this finding of faults, and will only add, that,
when his Lordship says, (p. 116,) that Henry V. "astonished the world
with his universal _wisdom_" he entirely overlooks the fact, that wisdom
is a faculty of the mind, or, rather, a mode of intellectual action,
of which universality can no more be predicated than of folly, or of
honesty, or of muscular strength; and that it is not knowledge, or
at all like knowledge; which, indeed, is often acquired in a very
remarkable degree by persons eminent for unwisdom. Lord Campbell might
as well have said that Henry V. astonished the world with his universal
prowess in the battle-field.
The censure to which Mr. Rushton's pamphlet is occasionally open in
regard to style may properly be averted by the modesty of its tone and
its unpretending character.
But to pass from the manner to the matter of the learned gentlemen who
appear on behalf of Malone's theory. Lord Campbell, after stating, in
the introductory part of his letter, that in "The Two Gentlemen of
Verona," "Twelfth Night," "Julius Caesar," "Cymbeline," "Timon of
Athens," "The Tempest," "King Richard II.," "King Henry V.," "King Henry
VI., Part I.," "King Henry VI., Part III.," "King Richard III.," "King
Henry VIII.," "Pericles," and "Titus Andronicus,"--fourteen of the
thirty-seven dramas generally attributed to Shakespeare,--he finds
"nothing that fairly bears upon this controversy," goes on to produce
from the remaining plays, _seriatim_, such passages as in his judgment
do bear upon the question, and to remark upon them, thus isolated and
disconnected from each other. Mr. Rushton is more methodic and logical.
He does not merely quote or cite all the passages which he has noticed
in which legal terms occur, but brings together all such as contain the
same terms or refer to kindred proceedings or instruments; and he thus
presents his case with much more compactness and consequent strength
than results from Lord Campbell's loose and unmethodical mode of
treating the subject. We can arrive at the merits of the case on either
presentation only by an examination of some of the more important of the
passages cited.
Lord Campbell, as we have just seen, mentions "Henry VIII." as one of
the fourteen plays in which he has found nothing which relates to the
question in hand; but Mr. Rushton opens his batteries with the following
passage from the very play just named; and to most readers it will seem
a bomb of the largest dimensions, sent right into the citadel of his
opponents:--
"_Suff_. Lord Cardinal, the king's further pleasure is,--
Because all those things you have done of late
By your power legatine within this kingdom
Fall into compass of a _premunire_,--
That therefore such a writ be sued against you,
To forfeit, all your goods, lands, tenements,
Chattels, and whatsoever, and to be
Out of the king's protection:--this is my
charge."
_King Henry VIII_. Act iii. Sc. 2.
We shall first remark, that, in spite of his declaration as to "Henry
VIII.," Lord Campbell does cite and quote this very passage (p. 42);
and, indeed, he must have been as unappreciative as he seems to have
been inaccurate, had he failed to do so; for, upon its face, it is, with
one or two exceptions, the most important passage of the kind to be
found in Shakespeare's works. _Premunire_ is thus defined in an old
law-book which was accessible to Shakespeare:--
"Premunire is a writ, and it lieth where any man sueth any other in the
spirituall court for anything that is determinable in the King's
Court, and that is ordeined by certaine statutes, and great punishment
therefore ordeined, as it appeareth by the same statutes, viz., that
he shall be out of the King's protection, and that he be put in prison
without baile or mainprise till that he have made fine at the King's
will, and that his landes and goods shal be forfait, if he come not
within ij. moneths."--_Termes de la Ley_, 1595, fol. 144.
The object of the writ was to prevent the abuse of spiritual power. Now,
here is a law-term quite out of the common, which is used by Shakespeare
with a well-deployed knowledge of the power of the writ of which it is
the name. Must we, therefore, suppose that Shakespeare had obtained his
knowledge of the purpose and the power of this writ in the course
of professional reading or practice? If we looked no farther than
Shakespeare's page, such a supposition might seem to be warranted.
But if we turn to Michael Drayton's "Legend of Great Cromwell," first
published, we believe, in 1607, but certainly some years before "Henry
VIII." was written, and the subject of which figures in that play, we
find these lines,--
"This Me to urge the _Premunire_ wonne,
Ordain'd in matters dangerous and hie;
In t' which the heedlesse Prelacie were runne
That back into the Papacie did fie."
Ed. 1619, p. 382.
Here is the very phrase in question, used with a knowledge of its
meaning and of the functions of the writ hardly less remarkable than
that evinced in the passage from "Henry VIII.," though expressed in
a different manner, owing chiefly to the fact that Drayton wrote a
didactic poem and Shakespeare a drama. But Drayton is not known to have
been an attorney's clerk, nor has he been suspected, from his writings,
or any other cause, to have had any knowledge of the law. Both he and
Shakespeare, however, read the Chronicles. Reading men perused Hall's
and Holinshed's huge black-letter folios in Queen Elizabeth's time with
as much interest as they do Macaulay's or Prescott's elegant octavos in
the reign of her successor, Victoria. Shakespeare drew again and again
upon the former for the material of his historical plays; and in writing
"Henry VIII.," he adopted often the very language of the Chronicler. The
well-known description of Wolsey, which he puts into the mouth of Queen
Katherine,--
"He was a man
Of an unbounded stomach, ever ranking
Himself with princes; one that by suggestion
Tith'd all the kingdom: Simony was fair play:
His own opinion was his law: I' the presence
He would say untruths; and be ever double,
Both in his words and meaning; He was never,
But where he meant to ruin, pitiful:
His promises were, as he then was, mighty;
But his performance, as he is now, nothing:
Of his own body he was ill, and gave
The clergy ill example,"--
is little more than the following paragraph from Holinshed put into
verse:--
"This cardinal! (as you may perceive in this storie) was of a great
stomach, for he compted himselfe equall with princes, and by craftie
suggestion gat into his hands innumerable treasure: he forced little
on simonie, [i.e., regarded it as of little consequence,] and was not
pittifull, and stood affectionate in his owne opinion: in open presence
he would lie and saie untruth, and was double both in speach and
meaning: he would promise much and performe little: he was vicious of
his bodie, and gave the clergie evill example."--Ed. 1587, vol. iii. p.
622.
Turning back from the page on which the Chronicler comments upon the
life of the dead prime-minister, to that on which he records his fall,
we find these passages:--
"In the meane time, the king, being informed that all those things that
the cardinall had doone by his _power legatine within this realme_ were
in the case of the _premunire_ and provision, caused his attornie,
Christopher Hales, to sue out a writ of premunire against him. ...After
this in the king's bench his matter for the premunire being called upon,
two atturneis which he had authorised by his warrant, signed with his
owne hand, confessed the action, and so had judgement to _forfeit all
his lands, tenements, goods, and cattels, and to be out of the king's
protection_."--Ib. p. 909.
If the reader will look back at the passage touching the premunire,
quoted above, he will see that these few lines from Raphael Holinshed
are somewhat fatal to an argument in favor of Shakespeare's "legal
acquirements," in so far as it rests in any degree upon the use of terms
or the knowledge displayed in that passage. Shakespeare and Drayton are
here in the same boat, though "not with the same sculls."
Before we shelve Holinshed,--for the good Raphael's folios are like
Falstaff in size, if not in wit, and, when once laid flat-long, require
levers to set them up on end again,--let us see if he cannot help us to
account for more of the "legalisms" that our Lord Chief Justice and
our barrister have "smelt out" in Shakespeare's historical plays. Mr.
Rushton quotes the following passages from "Richard II.":--
"_York_. Is not Gaunt dead? and doth not
Hereford live?
* * * * *
Take Hereford's rights away, and take from time
His _charters_ and his _customary rights_;
Let not to-morrow, then, ensue to-day:
Be not thyself; for how art thou a king,
But by fair sequence and succession?
Now, afore God, (God forbid I say true!)
If you do wrongfully seize Hereford's rights,
Call in the _letters patents_ that he hath
By his _attorneys-general_ to sue
_His livery_, and deny his _offer'd homage_,
You pluck a thousand dangers on your head."
Act ii. Sc. I.
"_Bol_. I am denied to _sue my livery_ here,
And yet my _letters patents_ give me leave:
My father's _goods are all distrain'd_ and sold;
And these, and all, are all amiss employed.
What would you have me do? I am a subject,
And challenge law: _Attorneys are denied_ me;
And therefore personally I lay my claim
To my _inheritance_ of free descent."--_Ib_. Sc. 3.
And Lord Campbell, although he passes by these passages in "Richard
II.," quotes, as important, from a speech of Hotspur's in the "First
Part of Henry IV.," the following lines, which, it will be seen, refer
to the same act of oppression on the part of Richard II. towards
Bolingbroke:--
"He came but to be Duke of Lancaster,
To _sue his livery_ and beg his bread."
Act iv. Sc. 3.
But, here again, Shakespeare, although he may have known more law than
Holinshed, or even Hall, who was a barrister, only used the law-terms
that he found in the paragraph which furnished him with the incident
that he dramatized. For, after recording the death of Gaunt, the
Chronicle goes on:--
"The death of this duke gave occasion of increasing more hatred in the
people of this realme toward the king; for he seized into his hands all
the rents and reuenues of his lands which ought to have descended vnto
the duke of Hereford by lawfull _inheritance_, in reuoking _his letters
patents_ which he had granted to him before, by virtue whereof he might
make his _attorneis generall_ to _sue liverie_ for him of any manner of
_inheritances_ or possessions that might from thencefoorth fall unto
him, and that his homage _might_ be respited with making reasonable
fine," etc.--HOLINSHED, Ed. 1587, p. 496.
The only legal phrase, however, in these passages of "Richard II," which
seems to imply very extraordinary legal knowledge, is the one repeated
in "Henry IV.,"--"sue his livery,"--which was the term applied to the
process by which, in the old feudal tenures, wards, whether of the king
or other guardian, on arriving at legal age, could compel a delivery
of their estates to them from their guardians. But hence it became a
metaphorical expression to mean merely the attainment of majority, and
in this sense seems to have been very generally understood and not
uncommonly used. See the following from an author who was no attorney or
attorney's clerk:--
"If Cupid
Shoot arrows of that weight, I'll swear devoutly
H'as _sued his livery_ and is no more a boy."
FLETCHER'S _Woman's Prize_, Act ii. Sc. 1.
And this, from the works of a divine:--
"Our little Cupid hath _sued livery_
And is no more in his minority."
DONNE'S Eclogues, 1613.
Spenser, too, uses the phrase figuratively in another sense, in the
following passage,--which may be one of those which Chalmers had in
his eye, when, according to Lord Campbell, he "first suggested" that
Shakespeare was once an attorney's clerk:--
"She gladly did of that same Babe accept,
As of her owne by _liverey and seisin_;
And having over it a litle wept,
She bore it thence, and ever as her owne it kept."
_Faërie Queene_, B. VI. C. iv. st. 37.
So, for an instance of the phrase "fee," which Lord Campbell notices as
one of those expressions and allusions which "crop out" in "Hamlet,"
"showing the substratum of law in the author's mind,"--
"We go to gain a little patch of ground,
That hath in it no profit but the name.
To pay five ducats, five, I would not farm it;
Nor will it yield to Norway or the Pole
A ranker rate, should it be sold _in fee_,"--
Act iv. Sc. 2.
and of which Mr. Rushton quotes several instances in its fuller form,
"fee simple,"--we have but to turn back a few stanzas in this same
canto of the "Faërie Queene," to find one in which the term is used with
the completest apprehension of its meaning:--
"So is my lord now _seiz'd of_ all the land,
As _in his fee_, with peaceable _estate_,
And quietly doth hold it in his hand,
Ne any dares with him for it debate."
_Ib_. st. 30.
And in the next canto:--
"Of which the greatest part is due to me,
And heaven itself, by heritage _in fee_."
_Ib._ C. vii. st. 15.
And in the first of these two passages from the "Faërie Queene," we have
two words, "seized" and "estate," intelligently and correctly used
in their purely legal sense, as Shakespeare himself uses them in the
following passages, which our Chief Justice and our barrister have both
passed by, as, indeed, they have passed many others equally worthy of
notice:--
"Did forfeit with his life all those his lands
Which he stood _seiz'd of_ to the conqueror."
_Hamlet_, Act i. Sc. 1.
"The terms of our _estate_ may not endure
Hazard so near us," etc.--_Ib_. Act iii. Sc. 3.
Among the most important passages cited by both our authors is one that
every reader of Shakespeare will recollect, when it is mentioned to
him,--Hamlet's speech over the skull in the grave-digging scene. But
although this speech is remarkable for the number of law-terms used in
it, only one of them seems to evince any recondite knowledge of the law.
This is the word "statutes," in the following sentence:--
"This fellow might be in's time a buyer of
land, with his statutes, his recognizances, his
fines, his double vouchers, his recoveries."
Act v. Sc. 1.
The general reader supposes, we believe, and very naturally, that here
"statutes" means laws, Acts of Parliament concerning real estate. But,
as Mr. Rushton remarks, (Malone having explained the term before him,)
"The statutes referred to by Hamlet are, doubtless, statutes merchant
and statutes staple." And "a statute merchant (so called from the 13th
Edward I., _De mercatoribus_) was a _bond_ acknowledged before one of
the clerks of the statutes merchant, and the mayor, etc., etc. A statute
staple, properly so called, was a _bond of record_, acknowledged before
the mayor of the staple," etc., etc.
Here we again have a law-term apparently so out of the ken of an
unprofessional writer, that it would seem to favor the Attorney and
Solicitor theory. But let us see if the knowledge which its use implies
was confined to Shakespeare among the dramatists of his time.
In Fletcher's "Noble Gentleman," a comedy, first performed in 1625, we
find a lady, sorely pushed for ready cash, crying out,--
"Take up at any use: give bond, or land,
Or mighty _statutes_, able by their strength
To tie up my Samson, were he now alive."
Act i. Sc. 1.
And in Middleton's "Family of Love," (where, by the way, the Free-Love
folk of our own day may find their peculiar notions set forth and made
the basis of the action, though the play was printed two hundred
and fifty years ago,) we find a female free-loveyer thus teaching a
mercantile brother of the family, that, although she has a sisterly
disregard for some worldly restraints, she yet keeps an eye on the main
chance:--
"Tut, you are master Dryfab, the merchant; your skill is greater in
cony-skins and woolpacks than in gentlemen. His lands be _in statutes_:
you merchants were wont to be merchant staplers; but now gentlemen have
gotten up the trade; for there is not one gentleman amongst twenty but
his lands be engaged in twenty statutes staple."
Act i. Sc. 3.
And in the very first speech of the first scene of the same play, the
husband of this virtuous and careful dame says of the same "Gerardine,"
(who, as he is poor and a gentleman, it need hardly be said, is about
the only honest man in the piece,)--"His lands be _in statutes_." And
that poor debauchee, Robert Greene, who knew no more of law than he
might have derived from such limited, though authentic information as to
its powers over gentlemen who made debts without the intention of paying
them, as he may have received at frequent unsolicited interviews with a
sergeant or a bum-bailiff, has this passage in his "Quip for an Upstart
Courtier," 1592:--
"The mercer he followeth the young upstart gentleman that hath no
government of himself and feedeth his humour to go brave; he shall not
want silks, sattins, velvets to pranke abroad in his pompe; but with
this proviso, that he must bind over his land in a _statute merchant or
staple_; and so at last forfeit all unto the merciless mercer, and leave
himself never a foot of land in England."
Very profound legal studies, therefore, cannot be predicated of
Shakespeare on the ground of the knowledge which he has shown of this
peculiar kind of statute.
It is not surprising that both our legal Shakespearean commentators cite
the following passage from "As You Like It" in support of their theory;
for in it the word "extent" is used in a sense so purely technical, that
not one in a thousand of Shakespeare's lay readers now-a-days would
understand it without a note:--
_Duke F._ Well, push him out of doors,
And let my officers of such a nature
_Make an extent_ upon his house and lands."
Act iii. Sc. 1.
"Extent," as Mr. Rushton remarks, is directed to the sheriff to seize
and value lands and goods to the utmost extent; "an _extendi facias_" as
Lord Campbell authoritatively says, "applying to the house and lands
as a _fieri facias_ would apply to goods and chattels, or a _capias ad
satisfaciendum_ to the person." But that John Fletcher knew, as well
as my Lord Chief Justice, or Mr. Barrister Rushton, or even, perhaps,
William Shakespeare, all the woes that followed an extent, the elder
Mr. Weller at least would not have doubted, had he in the course of
his literary leisure fallen upon the following passage in "Wit Without
Money" (1630):--
"_Val_ Mark me, widows
Are long _extents_ in law upon men's livings,
Upon their bodies' winding-sheets; they that enjoy 'em
Lie but with dead men's monuments, and beget
Only their own ill epitaphs."
Act ii. Sc. 2.
George Wilkins, too, the obscure author of "The Miseries of Enforced
Marriage," uses the term with as full an understanding, though not with
so feeling an expression or so scandalous an illustration of it, in the
following passage from the fifth act of that play, which was produced
about 1605 or 1606:--
"They are usurers; they come yawning for money; and the sheriff with
them is come to serve an _extent_ upon your land, and then seize your
body by force of execution."
Another seemingly recondite law-phrase used by Shakespeare, which Lord
Campbell passes entirely by, though Mr. Rushton quotes three instances
of it, is "taken with the manner." This has nothing to do with good
manners or ill manners; but, in the words of the old law-book before
cited,--
--"is when a theefe hath stollen and is followed with hue and crie and
taken, having that found about him which he stole;--that is called ye
maynour. And so we commonly use to saye, when wee finde one doing of an
unlawful act, that we tooke him with the maynour or manner."
_Termes de la Ley_, 1595, fol. 126, _b_.
Shakespeare, therefore, uses the phrase with perfect understanding, when
he makes Prince Hal say to Bardolph,--
"O villain, thou stolest a cup of sack eighteen
years ago, and wert _taken with the manner_,
and ever since thou hast blush'd extempore."
1 _Henry IV_.Act ii, Sc. 4.
But so Fletcher uses the same phrase, and as correctly, when he makes
Perez say to Estefania, in "Rule a Wife and Have a Wife,"--
"How like a sheep-biting rogue, _taken i' the manner_,
And ready for the halter, dost thou look
now!"--Act v. Sc. 4.
But both Fletcher and Shakespeare, in their use of this phrase, unusual
as it now seems to us, have only exemplified the custom referred to by
our contemporary legal authority,--"And so we _commonly use to saye_,
when wee finde one doing of an unlawfull act, that we tooke him with the
maynour"; though this must doubtless be understood to refer to persons
of a certain degree of education and knowledge of the world.
It seems, then, that the application of legal phraseology to the
ordinary affairs of life was more common two hundred and fifty years ago
than now; though even now-a-days it is much more generally used in the
rural districts than persons who have not lived in them would suppose.
There law shares with agriculture the function of providing those
phrases of common conversation which, used figuratively at first, and
often with poetic feeling, soon pass into mere thought-saving formulas
of speech, and which in large cities are chiefly drawn from trade
and politics. And if in the use of the law-terms upon which we have
remarked, which are the more especially technical and remote from
the language of unprofessional life among all those which occur in
Shakespeare's works, he was not singular, but, as we have seen,
availed himself only of a knowledge which other contemporary poets and
playwrights possessed, how much more easily might we show that those
commoner legal words and phrases, to remarks upon Shakespeare's use of
which both the books before us (and especially Lord Campbell's) are
mainly devoted, "judgment," "fine," "these presents," "testament,"
"attorney," "arbitrator," "fees," "bond," "lease," "pleading," "arrest,"
"session," "mortgage," "vouchers," "indentures," "assault," "battery,"
"dower," "covenant," "distrain," "bail," "non-suit," etc., etc.,
etc.,--words which everybody understands,--are scattered through all the
literature of Shakespeare's time, and, indeed, of all time since there
were courts and suits at law!
Many of the passages which Lord Campbell cites as evidence of
Shakespeare's "legal acquirements" excite only a smile at the
self-delusion of the critic who could regard them for a moment in that
light. For instance, these lines in that most exquisite song in "Measure
for Measure;"--"Take, oh, take those lips away,"--
"But my kisses bring again
_Seals_ of love, but _seal'd_ in vain";--
and these from "Venus and Adonis,"--
"Pure lips, sweet _seals_ in my soft lips imprinted,
What bargains may I make, still to be _sealing_!"--
to which Mr. Rushton adds from "Hamlet,"--
"A combination and a form, indeed,
Where every god did seem to set his _seal_."
Act iii. Sc. 4.
"Now must your conscience my acquittance
_seal_."--Act iv. Sc. 7.
And because indentures and deeds and covenants are sealed, these
passages must be accepted as part of the evidence that Shakespeare
narrowly escaped being made Lord High Chancellor of England! It requires
all the learning and the logic of a Lord Chief Justice and a London
barrister to establish a connection between such premises and such a
conclusion. And if Shakespeare's lines smell of law, how strong is the
odor of parchment and red tape in these, from Drayton's Fourth Eclogue
(1605):
"Kindnesse againe with kindnesse was repay'd,
_And with sweet kisses covenants were sealed_."
We ask pardon of the reader for the production of contemporary evidence,
that, in Shakespeare's day, a knowledge of the significance and binding
nature of a seal was not confined to him among poets; for surely a man
must be both a lawyer and a Shakespearean commentator to forget that the
use of seals is as old as the art of writing, and, perhaps, older, and
that the practice has furnished a figure of speech to poets from the
time when it was written, that out of the whirlwind Job heard, "It is
turned as clay to the _seal_," and probably from a period yet more
remote.
And is Lord Campbell really in earnest in the following grave and
precisely expressed opinion?
"In the next scene, [of "Othello,"] Shakespeare gives us a _very
distinct proof_ that he was acquainted with Admiralty law, as well as
with the procedure of Westminster Hall. Describing the feat of the Moor
in carrying off Desdemona against her father's consent, which might
either make or mar his fortune, according as the act might be sanctioned
or nullified, Iago observes,--
"'Faith, he to-night hath hoarded a land carack:
If it prove a _lawful prize_, he's made forever';
the trope indicating that _there would be a suit in the High Court of
Admiralty to determine the validity of the capture_"!--p. 91.
"Why did not his Lordship go farther, and decide, that, in the
figurative use of the term, "land carack," Shakespeare gave us very
distinct proof that he was acquainted with maritime life, and especially
with the carrying-trade between Spain and the West Indies? We
respectfully submit to the court the following passage from Middleton
and Rowley's "Changeling,"--first published in 1653, but written many
years before. Jasperino, seeing a lady, calls out,--
"Yonder's another vessel: Ile _board_ her:
if she be _lawfall prize, down goes her topsail."_
Act i. Sig. B. 2.
And with it we submit the following points, and ask a decision in our
favor. First, That they, the said Middleton and Rowley, have furnished,
in the use of the phrase "lawful prize," in this passage, very distinct
proof that they were acquainted with Admiralty law. Second, That, in
the use of the other phrases, "board," and especially "down goes her
topsail," they have furnished yet stronger evidence that they had been
sailors on board armed vessels, and that the trope indicates, that, had
not the vessel or lady in question lowered her topsail or top-knot, she
would then and there have been put mercilessly to the sword.
But what shall we think of the acumen and the judgment of a Chief
Justice, a man of letters, and a man of the world, who brings forward
such passages as the following as part of the evidence bearing upon the
question of Shakespeare's legal acquirements?--
"Come; fear not you; _good counsellors lack
no clients._"
_Measure for Measure_. Act i. Sc. 2.
"One that _before the judgement_ carries poor
souls to hell."
_Comedy of Errors_. Act iv. Sc. 2.
"Well, Time is the old _Justice_ that examines
all such offenders,--and let Time try."
_As You Like It_. Act iv. Sc. 1.
"And that old common _arbitrator_, Time."
_Troilus and Cressida_. Act iv. Sc. 5.
"No cock of mine; you crow too like a _craven_."
_Taming of the Shrew_. Act ii. Sc. 1.
"Bestial oblivion or some _craven_ scruple."
_Hamlet_. Act iv. Sc. 4.
By which last line, according to Lord Campbell, (p. 55,) "Shakespeare
shows that he was acquainted with _the law for regulating 'trials by
battle_'"!
But to proceed with the passages quoted in evidence:--
"Is not this a lamentable thing, that of the
skin of an innocent lamb should be made
_parchment_? that parchment, being _scribbled
o'er_, should undo a man? Some say, the bee
stings: but I say, 'tis the bee's _wax_; for I did
but _seal_ once to a thing, and I was never mine
own man since."--2 _Henry VI_. Act vi. Sc. 2.
Upon citing which, his Lordship exclaims,--
"Surely Shakespeare must have been employed to write _deeds_ on
_parchment_ in _courthand_, and to apply the _wax_ to them in the form
of _seals_. One does not understand how he should, on any other theory
of his bringing-up, have been acquainted _with these details_"!
One does not; but we submit to the court, that, if two were to lay their
heads together after the manner of Sydney Smith's vestrymen, they might
bring it about.
In aid of his Lordship's further studies, we make the following
suggestion. He doubtless knows that one of the earliest among our small
stock of traditions about Shakespeare is that recorded by Aubrey as
being derived from Stratford authority, that his father was a butcher,
and that "when he was a boy he exercised his father's trade, but when he
kill'd a calfe, he wold do it in a high style, and make a speech."
When his Lordship considers this old tradition in connection with the
following passage in one of Shakespeare's earliest plays,--
"Who finds the heifer dead and bleeding fresh,
And sees fast by a butcher with an axe,
But will suspect 'twas he that made the
slaughter,"--
2 _Henry VI._ Act iii. Sc. 2.
how can he resist the conclusion, that, although the divine Williams may
not have run with "Forty," it is highly probable that he did kill
for Keyser? Let his Lordship also remember that other old tradition,
mentioned by Rowe, that John Shakespeare was "a considerable dealer
in wool," and that William, upon leaving school, "seems to have given
entirely into that way of living which his father proposed to him"; and
remember, also, this passage from another of Shakespeare's earliest
plays:--
"He is too picked, too spruce, too affected,
too odd, as it were, too peregrinate, as I may
call it...He draweth out the _thread of
his verbosity finer than the staple of his argument._"
--_Love's Labor's Lost_. Act v. Sc. 1.
Is there not a goodly part of the wool-stapler's craft, as well as of
the art of rhetoric, compressed into that one sentence by the hydraulic
power of Shakespeare's genius? Does it not show that he was initiated in
the mysteries of long and short staple before he wrote this, perhaps,
his earliest play? But look again at the following passage, also written
when his memory of his boyish days was freshest, and see the evidence
that _both_ these traditions were well founded:--
"So, first, the harmless sheep doth yield _his fleece;_
And, next, _his throat unto the butcher's knife."_
Could these lines have been written by a man who had not been both a
considerable dealer in wool, and a butcher who killed a calf in high
style and made a speech? Who can have a doubt about this matter, when he
appreciates rightly the following passage in "Hamlet," (Act v. Sc. 2,)
and is penetrated with the wisdom of two wise commentators upon it?--
'Our indiscretion sometimes serves us well,
When our deep plots do pall; and that should teach us
There's a divinity that shapes our ends,
Rough-hew them how we will.'
Dr. Farmer informs me that these words are merely technical. A wool-man,
butcher, and dealer in _skewers_ lately observed to him that his nephew
(an idle lad) could only _assist_ him in making them;--he could _rough
hew_ them, but I was obliged to shape their ends! To shape the ends of
wool-skewers, i.e., to _point_ them, requires a degree of skill; any one
can _rough-hew_ them. Whoever recollects the profession of Shakespeare's
father will admit that his son might be no stranger to such terms. "I have
frequently seen packages of wool pinn'd up with skewers."--STEEVENS.
Lucky wool-man, butcher, and dealer in skewers! to furnish at once a
comment upon the great philosophical tragedy and a proof that its author
and you were both of a trade! Fortunate Farmer, to have heard the story!
and most sagacious Steevens, to have penetrated its hidden meaning,
recollecting felicitously that you had seen packages of wool pinn'd up
with skewers! But, O wisest, highest-and-deepest-minded Shakespeare, to
have remembered, as you were propounding, Hamlet-wise, one of the great
unsolvable mysteries of life, the skewers that you, being an idle lad,
could but rough-hew, leaving to your careful father the skill-requiring
task to shape their ends!--ends without which they could not have bound
together the packages of wool with which you loaded the carts that
backed up to the door in Henley Street, or have penetrated the veal
of the calves that you killed in such a high style and with so much
eloquence, and which loaded the tray that you daily bore on your
shoulder to the kitchen-door of New Place, yet unsuspecting that you
were to become its master!
Yet we would not too strongly insist upon this evidence, that
Shakespeare in his boyhood served both as a butcher's and a
wool-stapler's apprentice; for we venture to think that we have
discovered evidence in his works that their author was a tailor. For, in
the first place, the word "tailor" occurs no less than thirty-five times
in his plays. [The reader is to suppose that we are able to record this
fact by an intimate acquaintance with every line that Shakespeare wrote,
and by a prodigious effort of memory, and not by reference to Mrs.
Clark's Concordance.] "Measures" occurs nearly thrice as often; "shears"
is found no less than six times; "thimble," three times; "goose," no
less than twenty-seven times!--and when we find, that, in all his
thirty-seven plays, the word "cabbage" occurs but once, and then with
the deliberate explanation that it means "worts" and is "good cabbage,"
may we not regard such reticence upon this tender point as a touching
confirmation of the truth of our theory? See, too, the comparison which
Shakespeare uses, when he desires to express the service to which
his favorite hero, Prince Hal, will put the manners of his wild
companions:--
"So, like gross terms,
The Prince will, in the perfectness of time,
Cast off his followers; and their memory
Shall as a _pattern or a measure_ live
By which his Grace must mete the lives of
others."
2 _Henry IV._, Act iv. Sc. 4.
And in writing one of his earliest plays, Shakespeare's mind seems to
have been still so impressed with memories of his former vocation, that
he made the outraged Valentine, as his severest censure of Proteus,
reproach him with being badly dressed:--
"Ruffian, let go that rude, uncivil touch!
Thou friend _of an ill fashion!_"
Act v. Sc. 4.
Cleopatra, too, who, we may be sure from her conduct, was addicted to
very "low necks," after Antony's death becomes serious, and declares her
intention to have something "after the high Roman fashion." And what but
a reminiscence of the disgust which a tailor of talent has for mending
is it that breaks out in the Barons' defiant message to King John?--
"The King hath dispossess'd himself of us;
We will not line his thin bestained cloak."
_King John_, Act iv. Sc. 3.
A memory, too, of the profuse adornment with which he had been called
upon to decorate some very tender youth's or miss's fashionable suit
intrudes itself even in his most thoughtful tragedy:--
"The canker galls the infants of the Spring
Too oft before their _buttons_ be disclos'd."
_Hamlet_, Act i. Sc. 3.
In "Macbeth," desiring to pay the highest compliment to Macduff's
judgment and knowledge, he makes Lennox say,--
"He is noble, wise, judicious, and best knows
_The fits of the season_."--Act iv. Sc. 2.
Not the last fall or last spring style, be it observed, but that of the
season, which it is most necessary for the fashionable tailor to know.
In writing the first scene of the "Second Part of Henry IV.," his mind
was evidently crossed by the shade of some over-particular dandy,
whose fastidious nicety as to the set of his garments he had failed to
satisfy; for he makes Northumberland compare himself to a man who,
"_Impatient of his fit_, breaks like a fire
Out of his keeper's arms."
And yet we must not rely too much even upon evidence so strong and so
cumulative as this. For it would seem as if Shakespeare must have been
a publisher, and have known the anxiety attendant upon the delay of an
author not in high health to complete a work the first part of which has
been put into the printer's hands. Else, how are we to account for his
feeling use of this beautiful metaphor in "Twelfth Night"?
"Lady, you are the cruell'st she alive,
If you will lead these graces to the grave,
And _leave the world no copy_."
Act i. Sc. 5.
But this part of our subject expands before us, and we must stay our
hand. We merely offer these hints as our modest contribution to the
attempts to decide from phrases used in Shakespeare's works what were
his avocations before he became a playwright, and return to Lord
Campbell and Mr. Rushton.
When Malone, in 1790, broached his theory, that Shakespeare had been an
attorney's clerk, he cited in support of it twenty-four passages. Mr.
Rushton's pamphlet brings forward ninety-five, more or less; Lord
Campbell's book, one hundred and sixty. But, from what he has seen of
it, the reader will not be surprised at learning that a large number of
the passages cited by his Lordship must be thrown aside, as having no
bearing whatever on the question of Shakespeare's legal acquirements.
They evince no more legal knowledge, no greater familiarity with
legal phraseology, than is apparent in the ordinary conversation of
intelligent people generally, even at this day. Mr. Rushton, more
systematic than his Lordship, has been also more careful; and from the
pages of both we suppose that there might be selected a round hundred
of phrases which could be fairly considered as having been used by
Shakespeare with a consciousness of their original technicality and of
their legal purport. This is not quite in the proportion of three to
each of his thirty-seven plays; and if we reckon his sonnets and poems
according to their lines, (and both Mr. Rushton and Lord Campbell cite
from them,) the proportion falls to considerably less than three. But
Malone's twenty-four instances are of nearly as much value in the
consideration of the question as Lord Campbell's and Mr. Rushton's
hundred; for the latter gentlemen have added little to the strength,
though considerably to the number, of the array on the affirmative side
of the point in dispute; and we have seen, that, of the law-phrases
cited by them from Shakespeare's pages, the most recondite, as well
as the most common and simple, are to be found in the works of the
Chroniclers, whose very language Shakespeare used, and in those of the
playwrights his contemporaries.
Our new advocates of the old cause, however, quote two passages which,
from the freedom with which law-phrases are scattered through them, it
is worth while to reproduce here. The first is the well-known speech in
the grave-digging scene of "Hamlet":--
"_Ham_. There's another: Why may not that be the skull of a lawyer?
Where be his quiddits now, his quillets, his _cases_, his _tenures_, and
his tricks? why does he suffer this rude knave, now, to knock him about
the sconce with a dirty shovel, and will not tell him of his _action of
battery_? Humph! This fellow might be in's time a great buyer of land,
with his _statutes_, his _recognizances_, his _fines_, his _double
vouchers_, his _recoveries_: Is this the _fine_ of his _fines_, and the
_recovery_ of his _recoveries_, to have his fine pate full of fine dirt?
will his _vouchers_ vouch him no more of his _purchases_, and _double
ones_, too, than the length and breadth of a pair of _indentures_? The
very _conveyances_ of his lands will hardly lie in this box; and must
the _inheritor_ himself have no more? ha?"--Act v. Sc. 1.
The second is the following Sonnet, (No. 46,) not only the language,
but the very fundamental conceit of which, it will be seen, is purely
legal:--
"Mine Eye and Heart are at a mortal war
How to divide the conquest of thy sight;
Mine Eye my Heart thy picture's sight would _bar_,
My Heart mine Eye the freedom of that right.
My Heart doth _plead_ that thou in him dost lie
(A closet never pierc'd with crystal eyes);
But the _defendant_ doth that _plea_ deny,
And says in him thy fair appearance lies.
To 'cide this title is _impanelled_
A _quest_ of thoughts, all tenants to the Heart,
And by their _verdict_ is determined
The clear Eye's _moiety_, and the dear Heart's part;
As thus: Mine Eye's due is thine outward part,
And my Heart's right, thine inward love of heart."
It would seem, indeed, as if passages like these must be received as
evidence that Shakespeare had more familiarity with legal phraseology,
if not a greater knowledge of it, than could have been acquired except
by habitual use in the course of professional occupation. But let us see
if he is peculiar even in this crowding of many law-terms into a single
brief passage. We turn to the very play open at our hand, from which
we have quoted before, (and which, by the way, we have not selected as
exceptional in this regard,) "The Miseries of Enforced Marriage," and
find the following passage in Act V.:--
"_Doctor_. Now, Sir, from this your _oath and bond,_
Faith's pledge and _seal_ of conscience, you have run,
Broken all _contracts_, and _forfeiture_
Justice hath now in _suit_ against your soul:
Angels are made the _jurors_, who are _witnesses_
Unto the _oath_ you took; and God himself,
Maker of marriage, He that hath _seal'd the deed_,
As a firm _lease_ unto you during life,
_Sits now as Judge_ of your transgression:
The world _informs against you_ with this voice.--
If such sins reign, what mortals can rejoice?
_Scarborow_. What then ensues to me?
_Doctor_. A heavy _doom_, whose _execution's_
Now _served upon_ your conscience," etc.
p. 91, D.O.P., Ed. 1825.
Indeed, the hunting of a metaphor or a conceit into the ground is a
fault characteristic of Elizabethan literature, and one from which
Shakespeare's boldness, no less than his genius, was required to save
him; and we have seen already how common was the figurative use of
law-phrases among the poets and dramatists of his period. Hamlet's
speech and the Forty-sixth Sonnet cannot, therefore, be accepted as
evidence of his attorneyship, except in so far as they and like passages
may be regarded as giving some support to the opinion that Shakespeare
was but one of many in his time who abandoned law for letters.
For we object not so much to the conclusion at which Lord Campbell
arrives as to his mode of arriving at it. His method of investigation,
which is no method at all, but the mere noting of passages in the order
in which he found them in looking through Shakespeare's works, is the
rudest and least intelligent that could have been adopted; and his
inference, that, because Shakespeare makes Jack Cade lament that the
skin of an innocent lamb should be made parchment, and affirm that it is
not the bee, but the bee's wax, that stings, therefore he must have been
employed to write deeds on parchment and append wax to them in the form
of seals, is a fair specimen both of the acuteness and the logic which
his Lordship displays in this his latest effort to unite Law and
Literature.
There are, however, very considerable grounds for the opinion that
Shakespeare had more than a layman's acquaintance with the technical
language of the law. For it must be admitted, in the first place, that
he exhibits a remarkable acquaintance with it. That other playwrights
and poets of his day manifest a like familiarity (as we have seen
they do) precludes us, indeed, from regarding the mere occurrence of
law-terms in his works as indications of early training proper to him
alone. But they who, on the strength of the not unfrequent occurrence
of legal phrases in many of the plays and much of the poetry of the
Elizabethan period, would maintain that Shakespeare's use of them
furnishes no basis for the opinion that he acquired his knowledge of
them professionally, must also assume and support the position, that, in
the case of contemporary dramatists and poets, this use of the technical
language of conveyancing and pleading also indicates no more than an
ordinary acquaintance with it, and that, in comparing his works with
theirs in this regard, we may assume the latter to have been produced by
men who had no professional acquaintance with the law; because, if
they had such professional acquaintance with legal phraseology, its
appearance in their works as well as in Shakespeare's would manifestly
strengthen rather than invalidate the conclusion, that his familiarity
with it was acquired as they acquired theirs. This position is, to
say the least, a very difficult one to maintain, and one which any
considerate student of Elizabethan literature would be very unwilling
to assume. For our ignorance of the personal life of Shakespeare is
remarkable only because he was Shakespeare; and we know little, if any,
more about the greater number of his literary contemporaries than we do
about him. It cannot even be safely presumed, for instance, that George
Wilkins, the author of the law-besprinkled passage just above quoted
from the "Miseries of Enforced Marriage," was not a practising attorney
or barrister before or even at the time when he wrote that play. On the
contrary, it is extremely probable, nay, quite certain, that he and many
other dramatic authors of the period when he flourished, (1600-1620,)
and of the whole Elizabethan period, (1575-1625,) were nestling
attorneys or barristers before they became full-fledged dramatists.
We are not without contemporary evidence upon this point. Thomas Nash,
friend to Robert Greene, a playwright, poet, and novelist, whose works
were in vogue just before Shakespeare wrote, in an "Epistle to the
Gentlemen Students of the Two Universities," with which, according to
the fashion of the time, he introduced Greene's "Menaphon" (1587)[D] to
the reader, has the following paragraph:--
[Footnote D: Lord Campbell gives the date 1589; but see Mr. Dyce's
indisputable authority. Greene's Works. Vol. I., pp. xxxvii. and ciii.]
"I will turn my back to my first text of studies of delight, and talk
a little in friendship with a few of our trivial translators. It is a
common practice, now-a-days, amongst a sort of shifting companions
that run through every art and thrive by none, to leave the trade of
Noverint, whereto they were born, and busy themselves with the endeavors
of art, that could scarcely Latinize their neck-verse, if they should
have need; yet English Seneca, read by candlelight, yields many good
sentences, as, _Blood is a beggar_, and so forth; and if you intreat
him fair in a frosty morning, he will afford you whole Hamlets,--I
should say, handfuls of tragical speeches. But, oh grief! _Tempus edax
rerum_,--what is that will last always? The sea, exhaled by drops,
will, in continuance, be dry; and Seneca, let blood line by line and
page by page, at length must needs die to our stage."
It has most unaccountably been assumed that this passage refers to
Shakespeare;[E] and it is even so cited by Lord Campbell himself,--to
our surprise, when we remember his professional training and experience
as a sifter of evidence. But, as far as regards its reference to a
leaving of law for literature, it is clearly of general application.
Nash says, "It is a _common practice_, now-a-days, amongst a sort of
shifting companions, etc., to leave the trade of _Noverint_, whereto
_they_ were born, and busy _themselves,"_ etc. By the trade of
_Noverint_ he meant that of an attorney. The term was not uncommonly
applied to members of that profession, because of the phrase, _Noverint
universi per presentes_, (Know all men by these presents,) with which
deeds, bonds, and many other legal instruments then began. And Nash's
testimony accords with what we know of the social and literary history
of the age. There was no regular army in Elizabeth's time; and the
younger sons of gentlemen and well-to-do yeomen, who received from their
fathers little more than an education and a very small allowance, and
who did not become either military or maritime adventurers, opening
their oyster with a sword, entered the Church or the profession of the
law in its higher or lower grade; and as at that period there was much
more demand for lawyers and much less for clergymen than there is now,
and the Church had ceased to be a stepping-stone to political power and
patronage, while the law had become more than ever before an avenue to
fame, to fortune, and to rank, by far the greater number of these young
gentlemen aspired to the woolsack. But then, as now, the early years of
professional life were seasons of sharp trial and bitter disappointment.
Necessity pressed sorely or pleasure wooed resistlessly, and the slender
purse wasted rapidly away while the young attorney or barrister awaited
the employment that did not come. He knew then, as now he knows, "the
rich man's scorn, the proud man's contumely"; nay, he felt, as now he
sometimes feels, the tooth of hunger gnawing through the principles and
firm resolves that partition a life of honor and self-respect from one
darkened by conscious loss of rectitude, if not by open shame. Happy,--
yet, perhaps, oh, unhappy,--he who now in such a strait can wield the
pen of a ready writer!--for the press, perchance, may afford him a
support which, though temporary and precarious, will hold him up until
he can stand upon more stable ground. But in the reigns of Good Queen
Bess and Gentle Jamie there was no press. There was, however, an
incessant demand for new plays. Play-going was the chief intellectual
recreation of that day for all classes, high and low. It filled the
place of our newspapers, our books, our lectures, our concerts, our
picture-seeing, and, in a great measure, of our social gatherings and
amusements, of whatever nature. It is hardly extravagant to say, that
there were then more new plays produced in London in a month than
there are now in Great Britain and the United States in a year. To
play-writing, then, the needy young attorney or barrister possessed
of literary talent turned his eyes at that day, as he does now to
journalism; and it is almost beyond a doubt, that, of the multitudinous
plays of that period which have survived and the thousands which have
perished, a large proportion were produced by the younger sons of
country gentlemen, who, after taking their degrees at Oxford or
Cambridge, or breaking away from those classic bounds ungraduated,
entered the Inns of Court, according to the custom of their day and
their condition. They wrote plays in Latin, and even in English, for
themselves to act; and they got the professional players to act popular
plays for them on festal days. What more natural, then, than that those
who had the ability and the need should seek to recruit their slender
means by supplying the constant demand for new plays? and how inevitable
that some of them, having been successful in their dramatic efforts,
should give themselves up to play-writing! As do the great, so will the
small. What the Inns-of-Court man did, the attorney would try to do. The
players, though they loved the patronage of a lord, were very democratic
in the matter of play-making. If a play filled the house, they did not
trouble themselves about the social or professional rank of him who
wrote it; and thus came about that "common practice" for "shifting
companions" to "leave the trade of Noverint" and "busy themselves with
the endeavors of art"; and hence it is that the plays of the period of
which we are writing have, in many passages, so strong a tinge of law.
[Footnote E: It seems clear, on the contrary, that Nash's object was to
sneer at Jasper Heywood, Alexander Nevil, John Studley, Thomas Nuce, and
Thomas Newton,--one or more of them,--whose _Seneca, his Tenne Tragedies
translated into Englysh_, was published in 1581. It is a very
grievous performance; and Shakespeare, who had read it thoroughly, made
sport of it in _A Midsummer Night's Dream._]
One reason for the regarding of Nash's sneer as especially directed
against Shakespeare is the occurrence in it of the phrase, "whole
_Hamlets_,--I should say, handfuls of tragical speeches," which has
been looked upon as an allusion to Shakespeare's great tragedy. But the
earliest edition of "Hamlet" known was published in 1603, and even this
is an imperfect and surreptitiously obtained copy of an early sketch of
the play. That Shakespeare had written this tragedy in 1586, when he was
but twenty-two years old, is improbable to the verge of impossibility;
and Nash's allusion, if, indeed, he meant a punning sneer at a play,
(which is not certain.) was, doubtless, to an old lost version of the
Danish tragedy upon which Shakespeare built his "Hamlet."
We have, then, direct contemporary testimony, that, at the period of
Shakespeare's entrance upon London life, it was a common practice for
those lawyers whom want of success or an unstable disposition impelled
to a change in their avocation to devote themselves to writing or
translating plays; and this statement is not only sustained by all that
we know of the customs of the time to which it refers, but is strongly
confirmed by the notably frequent occurrence of legal phrases in the
dramatic literature of that age.
But the question, then, arises,--and it is one which, under the
circumstances, must be answered,--To what must we attribute the fact,
that, of all the plays that have come down to us, written between 1580
and 1620, Shakespeare's are most noteworthy in this respect? For it is
true, that, among all the dramatic writers of that period, whose
works have survived, not one uses the phraseology of the law with the
frequency, the freedom, and the correctness of Shakespeare. Beaumont,
for instance, was a younger son of a Judge of the Common Pleas, and,
following the common routine that we have noticed, after leaving the
University, became an Inns-of-Court man, but soon abandoned law for
literature; his friend and associate, Fletcher, was the son of a bishop,
but had an uncle who was a lawyer and a diplomatist, and is himself
believed to have been of the Inns of Court. Rich gleanings of law-terms
might, therefore, be expected from the plays written by these
dramatists; yet it may safely be asserted, that from Shakespeare's
thirty-seven plays at least twice as many passages marked by legal
phraseology might be produced, as from the fifty-four written by
Beaumont and Fletcher, together or alone! a fact the great significance
of which is heightened by another,--that it is only the vocabulary of
the law to the use of which Shakespeare exhibits this proclivity. He
avails himself, it is true, of the peculiar language of the physician,
the divine, the husbandman, the soldier, and the sailor; but he uses
these only on very rare occasions, by way of description, comparison,
or illustration, when something in the scene or the subject in hand
suggests them. But the technical language of the law runs from his
pen as part of his vocabulary and parcel of his thought. The word
"purchase," for instance, which in ordinary use means to acquire by
giving value, in law applies to all legal modes of obtaining property,
except inheritance of descent. And the word in this peculiar and most
technical sense occurs five times in Shakespeare's thirty-seven plays,
but only in a single passage (if our memory and Mr. Dyce's notes serve
us) in the fifty-four plays of Beaumont and Fletcher. Equal, or greater,
is the comparative frequency with which Shakespeare uses other legal
phrases; and much wider is the disparity, in this regard, between him
and the other dramatic writers of his whole period,--Marlowe, Greene,
Peele, Kyd, Lilly, Chapman, Jonson, Middleton, Marston, Ford, Webster,
Massinger, and the undistinguished crowd.
These facts dispose in great measure of the plausible suggestion,
which has been made,--that, as the courts of law in Shakespeare's time
occupied public attention much more than they do at present, they having
then regulated "the season," as the sittings of Parliament (not then
frequent or stated) do now,[F] they would naturally be frequented by the
restless, inquiring spirits of the time, Shakespeare among them, and
that there he and his fellow-dramatists picked up the law-phrases which
they wove into their plays and poems. But if this view of the case were
the correct one, we should not find that disparity in the use of legal
phrases which we have just remarked. Shakespeare's genius would manifest
itself in the superior effect with which he used knowledge acquired in
this manner; but his _genius_ would not have led him to choose the
dry and affected phraseology of the law as the vehicle of his flowing
thought, and to use it so much oftener than any other of the numerous
dramatists of his time, to all of whom the courts were as open as to
him. And the suggestion which we are now considering fails in two other
most important respects. For we do not find either that Shakespeare's
use of legal phrases increased with his opportunities of frequenting
the courts of law, or that the law-phrases, his use of which is most
noteworthy and of most importance in the consideration of the question
before us, are those which he would have heard oftenest in the course of
the ordinary business of the courts in his day. To look at the latter
point first,--the law-terms used by Shakespeare are generally not those
which he would have heard in ordinary trials at _nisi prius_ or before
the King's Bench, but such as refer to the tenure or transfer of real
property, "fine and recovery," "statutes," "purchase," "indenture,"
"tenure," "double voucher," "fee simple," "fee farm," "remainder,"
"reversion," "dower," "forfeiture," etc., etc.; and it is important to
remember that suits about the title to real estate are very much rarer
in England than they are with us, and in England were very much rarer in
Shakespeare's time than they are now. Here we buy and sell houses and
lands almost as we trade in corn and cotton; but in England the transfer
of the title of a piece of real estate of any consequence is a serious
and comparatively rare occurrence, that makes great work for attorneys
and conveyancing counsel; and two hundred and fifty years ago the
facilities in this respect were very much less than they are now.
Shakespeare could hardly have picked up his conveyancer's jargon by
hanging round the courts of law; and we find,--to return to the first
objection,--that, in his early plays, written just after he arrived in
London, he uses this peculiar phraseology just as freely and with
as exact a knowledge as he displayed in after years, when (on the
supposition in question) he must have become much more familiar with it.
Shakespeare's earliest work that has reached us is, doubtless, to be
found in "King Henry the Sixth," "The Comedy of Errors," and "Love's
Labor's Lost." In the very earliest form of Part II. of the first-named
play, ("The First Part of the Contention betwixt the two Houses of York
and Lancaster," to which Shakespeare was doubtless a contributor, the
part of Cade being among his contributions,) we find him making Cade
declare, (Act iv. Sc. 7,) "Men shall hold of me _in capite_; and we
charge and command that wives be _as free as heart can wish or tongue
can tell_." Both the phrases that we have Italicized express tenures,
and very uncommon tenures of land. In the "Comedy of Errors," when
Dromio of Syracuse says, "There's no time for a man to recover his hair
that grows bald by nature," [Hear, O Rowland! and give ear, O Phalon!]
his master replies, "May he not do it by _fine and recovery?_" Fine and
recovery was a process by which, through a fictitious suit, a transfer
was made of the title in an entailed estate. In "Love's Labor's Lost,"
almost without a doubt the first comedy that Shakespeare wrote, on
Boyet's offering to kiss Maria, (Act ii. Sc. 1,) she declines the
salute, and says, "My lips are no common, though several they be." This
passage--an important one for his purpose--Lord Campbell has passed by,
as he has some others of nearly equal consequence. Maria's allusion is
plainly to tenancy in common by several (i.e., divided, distinct) title.
(See Coke upon Littleton, Lib. iii. Cap. iv. Sec. 292.) She means, that
her lips are several as being two, and (as she says in the next line)
as belonging in common to her fortunes and herself,--yet they were no
common pasture.
[Footnote F: Falstaff, for instance, speaks of "the wearing out of six
fashions, which is four terms or two actions."]
Here, then, is Shakespeare using the technical language of conveyancers
in his earliest works, and before he had had much opportunity to
haunt the courts of law in London, even could he have made such legal
acquirements in those schools. We find, too, that he uses law-terms in
general with frequency notably greater--in an excess of three or four
to one--than any of the other playwrights of his day, when so many
playwrights were or had been Noverints or of the Inns of Court; that
this excess is not observable with regard to his use of the vocabulary
peculiar to any other occupation or profession, even that of the actor,
which we know that he practised for many years; but that, on the
contrary, although he uses other technical language correctly, he avails
himself of that of any single art of occupation with great rarity,
and only upon special occasions. Lord Campbell remarks, as to the
correctness with which Shakespeare uses legal phrases,--and this is a
point upon which his Lordship speaks with authority,--that he is amazed
"by the accuracy and propriety with which they are introduced," and in
another place adds, that Shakespeare "uniformly lays down good law"; and
it is not necessary to be a Chief Justice of the Queen's Bench to know
that his Lordship is fully justified in assuring us that "there is
nothing [of the kind (?)] so dangerous as for one not of the craft to
tamper with our free-masonry." Remembering, then, that genius, though
it reveals general and even particular truths, and facilitates all
acquirement, does not impart facts or the knowledge of technical terms,
in what manner can we answer or set aside the question that we have
partly stated before,--How did it happen, that, in an age when it was
a common practice for young attorneys and barristers to leave their
profession and take to writing plays and poems, one playwright left upon
his works a stronger, clearer, sharper legal stamp than we can detect
upon those of any other, and that he used the very peculiar and, to a
layman, incomprehensible language of the law of real property, as it
then existed, in his very earliest plays, written soon after he, a raw,
rustic youth, bred in a retired village, arrived in London? How did
it happen that this playwright fell into the use of that technical
phraseology, the proper employment of which, more than any other,
demands special training, and that he availed himself of it with
apparent unconsciousness, not only so much oftener than any of his
contemporaries, but with such exact knowledge, that one who has passed
a long life in the professional employment of it, speaking as it
were officially from the eminent position which he has won,--Lord
Campbell,--declares, that,
"While novelists and dramatists are constantly making mistakes as to the
law of marriage, of wills, and of inheritance, to Shakespeare's law,
lavishly as he propounds it, there can neither be demurrer, nor bill of
exceptions, nor writ of error"?
Must we believe, that the man, who, among all the lawyer-playwrights of
his day, showed,--not, be it noticed, (as we are at present regarding
his works,) the profoundest knowledge of the great principles of law and
equity, although he did that too,--but the most complete mastery of
the technical phrases, the jargon, of the law and of its most abstruse
branch,--that relating to real estate,--and who used it very much the
oftenest of them all, and with an air of as entire unconsciousness as
if it were a part of the language of his daily life, making no mistakes
that can be detected by a learned professional critic,--must we believe
that this man was distinguished among those play-writing lawyers, not
only by his genius, but his _lack_ of particular acquaintance with the
law? Or shall we rather believe that the son of the High Bailiff of
Stratford, whose father was well-to-do in the world, and who was a
somewhat clever lad and ambitious withal, was allowed to commence his
studies for a profession for which his cleverness fitted him and by
which he might reasonably hope to rise at least to moderate wealth and
distinction, and that he continued these studies until his father's
loss of property, aided, perhaps, by some of those acts of youthful
indiscretion which clever lads as well as dull ones sometimes will
commit, threw him upon his own resources,--and that then, having
townsmen, perhaps fellow-students and playfellows, among the actors in
London, and having used his pen, as we may be sure he had, for other
purposes than engrossing and drawing precedents, he, like so many others
of his time, left his trade of Noverint and went up to the metropolis to
busy himself with endeavors of art? One of these conclusions is in the
face of reason, probability, and fact; the other in accordance with them
all.
* * * * *
But of how little real importance is it to establish the bare fact, that
Shakespeare was an attorney's clerk before he was an actor! Suppose
it proved, beyond a doubt,--what have we learned? Nothing peculiar to
Shakespeare; but merely what was equally true of thousands of other
young men, his contemporaries, and hundreds of thousands, if not
millions, of those of antecedent and succeeding generations. It has a
naked material relation to the other fact, that he uses legal phrases
oftener than any other dramatist or poet; but with his plastic power
over those grotesque and rugged modes of speech it has nought to do
whatever. That was his inborn mastery. Legal phrases did nothing for
him; but he much for them. Chance cast their uncouth forms around him,
and the golden overflow from the furnace of his glowing thought fell
upon them, glorifying and enshielding them forever. It would have been
the same with the lumber of any other craft; it was the same with that
of many others,--the difference being only of quantity, and not of kind.
How, then, would the certainty that he had been bred to the law help
us to the knowledge of Shakespeare's life, of what he did for himself,
thought for himself, how he joyed, how he suffered, what he was? Would
it help us to know what the Stratford boys thought of him and felt
toward him who was to write "Lear" and "Hamlet," or how the men of
London regarded him who was a-writing them? Not a whit. To prove the
fact would merely satisfy sheer aimless, fruitless curiosity; and it is
a source of some reasonable satisfaction to know that the very
people who would be most interested in the perusal of a biography of
Shakespeare made up of the relation of such facts are they who have
least right to know anything about him. Of the hundreds of thousands
of people who giggled through their senseless hour at the "American
Cousin,"--a play which, in language, in action, in character, presents
no semblance to human life or human creatures, as they are found on any
spot under the canopy, and which seems to have been written on the model
of the Interlude of "Pyramus and Thisbe," "for, in all the play, there
is not one word apt, one player fitted,"--of the people to whom this
play owed its monstrous success, and who, for that very reason, it is
safe to say, think Shakespeare a bore on the stage and off it, a goodly
number would eagerly buy and read a book that told them when he went to
bed and what he had for breakfast, and would pay a ready five-cent
piece for a picture of him as he appeared in the attorney's office, to
preserve as a companion to the equally veritable "portrait of the Hon.
Daniel E. Sickles, as he appeared in prison." Nay, it must be confessed,
that there are some Shakespearean enthusiasts ever dabbling and gabbling
about what they call Shakespeariana, who would give more for the pen
with which he engrossed a deed or wrote "Hamlet," than for the ability
to understand, better than they do or ever can, what he meant by that
mysterious tragedy. Biography has its charms and its uses; but it is not
by what we know of their bare external facts that
"Lives of great men all remind us
We can make our lives sublime,
And departing leave behind us
Footprints on the sands of time."
What the readers of Shakespeare, who are worthy to know aught of him,
long to know, would have been the same, had he been bred lawyer,
physician, soldier, or sailor. It is of his real life, not of its mere
accidents, that they crave a knowledge; and of that life, it is to be
feared, they will remain forever ignorant, unless he himself has written
it.
THE MINISTER'S WOOING.
[Continued.]