_ 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, of 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, 5s. 0d. 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 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 besides, 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 marshaling 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 Court 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 commends: "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, besides 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 of
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. 11, and
Vol. II, pp. 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 pointed 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 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 the 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. Anyway, 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 besides, 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 tolerable 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 are 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's 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 office, 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 may 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 Labour'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 them
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.
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1. From Chapter XIII of THE SHAKESPEARE PROBLEM RESTATED.
By George G. Greenwood, M.P. John Lane Company, publishers. _