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IN EXECUTIVE COMMITTEE June isth, 1885.
Ktiolved, That in order that the papers printed under authority of this Society
may be of the highest character, and of value from all standpoints, the Society
does not stand pledged as responsible for the opinions expressed or conclusions
arrived at in the said papers, but considers itself only responsible in so far as it
certifies by its Imprimatur that it considers them as original contributions to
Shakespearean study, and 83 showing upon their face care, labor and researcb,
publications of Cbe Sbafcespeare Society ot "Iftew fork
1Ro. 12
Notes by an Unbeliever Therein
BY
WILLIAM C. DEVECMON, ESQ.., A. M.
OF THE MARYLAND BAR
(A Member of the Shakespeare Society of New York)
NEW YORK
THE SHAKESPEARE PRESS
Printers to the Shakespeare Society of New York
LONDON : KEGAN PAUL, TRENCH, TRUBNER & CO., LTD.
1899
COPYRIGHT, 1899,
BY
WILLIAM C. DEVECMON.
All rights reserved.
PR
CONTENTS.
CHAPTER PAGE
I. SHAKSPEARE NOT NECESSARILY A LAWYER BECAUSE
HE USED LEGAL TERMINOLOGY, i
II. How SHAKESPEARE HAS BEEN MADE A LAWYER, . 13
III. SOME LATER CONVERTS TO THE SHAKESPEARE-LAW
YER DOCTRINE 24
IV. AN ENGLISH QUEEN'S COUNSEL'S REMARKABLE
OPINION, 27
V. SOME OF SHAKESPEARE'S ERRORS IN LEGAL TER
MINOLOGY, . 3 2
iii
IN RE SHAKESPEARE'S LEGAL
ACQUIREMENTS.
I.
SHAKESPEARE NOT NECESSARILY A LAWYER BE
CAUSE HE USED LEGAL TERMINOLOGY.
ENGLAND is, and always has been, the true home
of the lawyer; and the Englishman takes as natu
rally to a legal contest as the Irishman to a rough
and tumble fight, or the Frenchman to a duel. In
no country in the world have the bench and the bar
been held in so high esteem as in England. While
in all other parts of Europe the pulpit or the sword
afforded the only avenues of employment for a
gentleman, and the only means for social or politi
cal advancement, in England ambition has always
found an ample arena in the legal forum. Prior to
the reign of Queen Anne, science, literature, and art
were lightly regarded, but the lawyer has always
been, in English estimation, second only to the
soldier. 'Bacon himself was esteemed by his con
temporaries for his legal rather than his scientific
or literary attainments. Hooker's famous state
ment that " law hath her seat in the bosom of God;
her voice is the harmony of the world," has ever
* IN RE SHAKESPEARE'S
been applied literally by Englishmen to the Com
mon Law. A love of law, a spirit of litigation, a
tenacious and pertinacious determination to main
tain his legal rights at all hazards and at every cost
are characteristics of every trueborn Englishman.
Von Ihering, in his remarkable work, " The Strug
gle for Law," to which I shall have occasion
hereafter to refer, says "We [on the Continent]
frequently see the typical figure of the traveling
Englishman who resists being duped by inn
keepers and hackmen, with a manfulness which
would induce one to think he was defending the
law of Old England who, in case of need, post
pones his departure, remains days in the place, and
spends ten times the amount he refuses to pay. The
people laugh at him, and do not understand him.
It were better if they did understand him. For, in
the few shillings which the man here defends, Old
England lives."
The English love for law, and even for its intrica
cies, subtleties, and fictions is visible in all English
history and literature. Blackstone's " Commenta
ries" were written, not for professed students of law,
but as an advanced course of study for the English
gentleman. The fascination that courts and the
law had for Dickens is manifest throughout his
novels, while Dr. Johnson never ceased to regret
that he had not actively embraced the legal profes
sion; but these are mere illustrations, and to mul
tiply instances of this kind were tedious. This
English characteristic is manifest in every age of
English life; it is pre-eminently so in the Eliza-
LEGAL ACQUIREMENTS. 3
bethan era. Then was witnessed the great struggle
between the Common Law and Chancery. The re
cently enacted Statute of Uses was the occasion of
a great multitude of cases involving the title to real
estate. It was emphatically an age of litigation.
And the spirit of their race and times seized
strongly on the Shakespeare family. There was a
fortnightly court held at Stratford-on-Avon ; and
though all its records have not been preserved, it
appears, from such as remain, that John Shakes
peare, from his first settlement in that town about
1551 or 1552 down to 1600, was engaged either as
plaintiff or defendant in nearly fifty law-suits. Be
sides he frequently served as juror, assessor of
fines, and as arbitrator. His son, the future poet,
was thus brought up in an atmosphere of litigation.
That the little provincial town of Stratford, having
at that time about 1800 inhabitants, with little or no
commerce or intercourse with the outside world,
was able to support a half dozen or more attorneys,
with a session of court every two weeks, shows a
most extraordinary amount of litigation. It may
well be imagined that the greater part of the male
population of Stratford was in constant attendance
at the sessions of the court; that the arguments of
the lawyers, the verdicts of the juries, and the judg
ments of the court were in the long evenings re
hashed over and over again by these worthies of
Stratford in the midst of their potations of home
brewed ale, in the love of which they excelled no
less than in the love of litigation, there being at the
time about thirty alehouses in the town.
4 IN RE SHAKESPEARE'S
John Shakespeare was a man of prominence and
importance in Stratford, for twenty years holding
office of one kind or another; and, as high bailiff,
he presided over the court.
From these circumstances it can readily be seen
how Shakespeare acquired his extensive knowledge
of legal expressions, and his love of litigation which
involved him in almost as many law-suits as his
father. It is noticeable that, while Shakespeare's
works abound with law-terms, they are devoid of
terms peculiarly applicable to Chancery practice or
to Chancery jurisprudence. The High Court of
Chancery sat at London; the management of a suit
therein was expensive; and Shakespeare had no op
portunity of attending its sessions. His father had
two suits in that court, but apparently they were
abandoned, he being the complainant in both cases.
Such being the surroundings of Shakespeare's
youth, in a bookless community, with a school
where " small Latin and less Greek," and no Eng
lish at all, were taught, it might well be imagined
that a bright, intellectual boy would find the best
educational facilities were to be had by a faithful at
tendance at the sessions of court. And when we
consider that Shakespeare's father was almost con
stantly there, and when we further consider his own
evident fondness for the law, shown not only in his
use of legal expressions, but in his frequent resort
to the courts as litigant, his legal tastes and fond
ness for legal terminology are accounted for. But
that he got this terminology wrong quite as often
as he got it right is apparent to any serious exami-
LEGAL ACQUIREMENTS. 5
nation: certainly it is apparent to any lawyer not
tempted by an appetite for tours de force, or burning
to make a fellow-barrister out of the greatest of
dramatists !
When he arrived in London and was thrown into
that brilliant society of lawyer-playwrights, he con
tinued to breathe the same legal atmosphere in their
company at the taverns. Gifford, in 'his " Memoirs
of Ben Jonson," says, " Domestic entertainments
were, at that time, rare. The accommodations of
a private house were ill calculated for the purposes
of a social meeting, and taverns and ordinaries are
therefore almost the only places in which we hear
of such assemblies." The contemporary authority
as to these meetings of the lawyers at the taverns
is also ample. Dekker, in his " Gull's Hornbook "
(1609) says: "There is another ordinary at which
your London usurer, your stale bachelor, and your
thrifty attorneys do resort; the price, three-pence;
the rooms as full of company as a gaol. . . If they
chance to discourse, it is of nothing but statutes,
bonds, recognizances, audits, subsidies, rents, sure
ties, enclosures, liveries, indictments, outlawries,
feoffments, judgments, commissions, bankrupts,
amercements, and of such horrible matter."
That the poets and actors of the period were deep
drinkers, and that " The Mermaid " and other
taverns and tippling houses were their customary
meeting places, are matters of common knowledge.
Chapman's " temperance " was noted as a quality
rarely met with in a poet. Warton's " Hist. Eng.
Poetry," vol. iv., p. 276.
IN RE SHAKESPEARE'S
To meet there and exchange jest and witticism
in the midst of their " bumpers " was their ideal of
pleasure and good-fellowship. In Dekker's " A
Knight's Conjuring," 1607, a number of poets are
introduced together in the Elysian fields. " Be
yond all these places there is a groave which stands
by itself like an iland This is called The
Groave of Bay-trees, and to this consort-room resort
none but the children of Phoebus, poets and musi-
tians." To this Company is admitted Chettle,
" sweating and blowing by reason of his fatnes, to
welcome whom, because he was of old acquaint
ance, all rose up and fell presentlie on their knees
to drink a health to all lovers of Helicon."
What things have we seen
Done at the Mermaid! heard words that have been
So nimble, and so full of subtle flame,
As if that every one from whence they came
Had meant to put his whole wit in a jest,
And had resolved to live a fool the rest
Of his dull life.
Francis Beaumont to Ben Jonson.
Souls of Poets dead and gone,
What Elysium have ye known,
Happy field or mossy cavern,
Choicer than the Mermaid Tavern ?
Keats.
But members of the legal profession were quite
as frequent visitors to the taverns as the poets.
For this we have a vast body of contemporary tes
timony. In Webster's " The Devil's Law Case,"
Sanitonella, a lawyer, complains,
LEGAL ACQUIREMENTS. 7
There's one thing too that has a vile abuse in it.
Pros. What's that?
San. Marry, this, that no proctor in term-time be tol
erated to go to the tavern above six times i' the forenoon.
Act V. scene 2.
This same play also furnishes evidence that it
was not merely the lawyers who were interested in
legal gossip.
San. Do you hear, officers ?
You must take special care that you let in
No brachygraphy-men [/. e. t stenographers] to take notes.
Off. No, Sir?
San. By no means :
We cannot have a cause of any fame
But you must have scurvy pamphlets and lewd ballads
Engendered of it presently.
Act IV. scene 2.
Sidney Lee, in his life of " William Shakespeare,"
p. 32, n. 2, says, " Legal terminology abounded in
all plays and poems of the period," the truth of
which statement must be admitted by everyone at
all familiar with Elizabethan literature. The whole
population seems to have taken an interest in law
and litigation. " Every man in those days was to
a certain point his own lawyer; that is, he was well
versed in all the technical forms and procedure.
Therefore Counsel were brought into very close
relations with their somewhat exacting clients, by
whom they might be said to be chiefly instructed,
the solicitor or attorney being rather in the position
of an agent for the general conduct of cases "
8 IN RE SHAKESPEARE'S
(Hubert Hall's " Society in the Elizabethan Age,"
2d Edition, p. 141).
That Shakespeare uses legal expressions rather
more frequently than his contemporaries simply
proves that he entered into the spirit of his times
more fully than they. Wordsworth says of Milton
that "his soul was like a star, and dwelt apart";
but Shakespeare was verily " the soul of his age,"
as Ben Jonson aptly described him, and, being
its soul, he did not live apart from it, but in the very
centre and the midst of it!
John Webster was a contemporary of Shakes
peare. His father was a merchant tailor, and he
himself is supposed to have followed that trade.
In his play above mentioned, " The Devil's Law
Case," occur more legal expressions (some of them
highly technical, and all correctly used), than are to
be found in any single one of Shakespeare's works.
Among other legalisms, the law in regard to
pre-contract (of which such capital is made by those
who ascribe to Shakespeare great legal knowledge)
is stated more fully than it is by Shakespeare, and
quite as accurately. Webster doubtless acquired
his knowledge of law in the same way in which I
believe Shakespeare acquired his that is, he ab
sorbed it from the legal atmosphere by which he
was surrounded.
But, if the law was attractive to the poets, the
stage seems to have had an equal fascination for
the lawyers. Indeed, the ranks of the dramatists
were largely recruited from the Inns of Court.
There were contemporary with Shakespeare per-
LEGAL ACQUIREMENTS. 9
haps between seventy-five and a hundred writers of
plays, and some of them were very prolific.
Thomas Heywood said he " had either an entire
hand or at least a main finger " in two hundred
and twenty plays. Many were the authors of but
one. A large percentage of the dramatic litera
ture of the period has not survived to modern
times, and of most of the authors also only
their names remain. Of those who are known to
have had any trade, professional training, or occu
pation, I believe it would be a conservative estimate
a say that twenty per cent, were in some way con
nected with the study of law.
John Ford (1586-1640) came of a family of law
yers. His mother was a sister of Sir John Popham,
next to Coke the most famous lawyer of his age.
He became in turn Attorney-General and Lord
Chief Justice. Ford himself was a student in the
Middle Temple in 1602, while his cousin and name
sake (to whom he dedicated " The Lover's Melan
choly ") was a member of Gray's Inn.
John Marston (1575-1634) was a student of the
law. His father, a lecturer at the Middle Temple
in 1592, by his will, proved in 1599, bequeaths "to
sd. son John my furniture &c. in my chambers in
The Middle Temple; my law books &c. to my sd.
son whom I had hoped would have profited by
them in the study of the law, but man proposeth
and God disposeth." Introduction to Bullen's
" Marston," p. 13.
Francis Beaumont (1584-1616) was a student in
the Inner Temple. His grandfather, John Beau-
to IN RE SHAKESPEARE'S
mont, had been Master of the Rolls ; and his father,
Francis Beaumont, one of the Judges of the Court
of Common Pleas.
William Warner (i558?-i6oo.) was " by his pro
fession an atturnye at the Common Plese." He
was the author of "Albion's England," and of a
play called " Syrinx." In 1595 his translation of
Plautus' " Menaechmi " was published. Shakes
peare is said to have taken his " Comedy of
Errors " from this play, and if he wrote it before
1595 (which seems probable) it is possible he may
have seen Warner's translation in the manuscript.
(See Dr. Morgan's Introduction to vol. xxii. of
" The Bankside Shakespeare.")
Abraham Fraunce (15 -16 ) was a lawyer; had
been a student at Gray's Inn; and was recom
mended by Henry, Earl of Pembroke, to Lord
Treasurer Burleigh in 1590 as a suitable person to
be Her Majesty's Solicitor in that Court. He was
the author of several dramatic pieces.
Thomas Middleton (1570?- 1627) was a student
at Gray's Inn.
Thomas Lodge (1558-1625) was a student at
Lincoln's Inn. Afterwards he became a physician.
Thomas Kyd (15 -1596) was trained for his pa
ternal profession of a law scrivener.
The above facts, as well as those given below of
plays represented at the Inns of Court, may be
easily verified by reference to Ward's " History of
English Dramatic Literature," and to the well-
known " Biographia Dramatica."
Only those lawyer-dramatists have been men-
LEGAL ACQUIREMENTS. II
tioned whose ages were such as to render it prob
able that they came in contact with Shakespeare at
some of the well-known taverns which were the
common places of resort. Doubtless a fuller in
vestigation than I have made would discover
others.
Plays and masques were frequently represented
at the different Inns of Court, sometimes in Latin,
and nearly always written expressly for the occa
sion. The earliest English tragedy, " Ferrex and
Porrex," said to be " the first dramatic piece of any
consideration in the English Language," was acted
on January 18, 1562, by gentlemen of 'the Inner
Temple before the Queen. It was written by
Thomas Sackville, afterwards Lord Buckhurst, and
Thomas Norton, barristers. The latter subse
quently became Counsel to the Stationers' Com
pany.
In 1566 two plays by George Gascoigne of
Gray's Inn, " Jocasta " and " Supposes," were
there represented. In the composition of the for
mer he was assisted by Christopher Yelverton, who
afterwards arose to Judicial dignity.
" Tancred and Gismonda," under its original
title of " Gismonda of Salerne," was represented
before the Queen at the Inner Temple in 1568. It
was written by Cristopher Hatton and five other
gentlemen of the Inner Temple.
" The Misfortunes of Arthur " was acted before
the Queen in 1588. Eight members of the Society
of Gray's Inn co-operated in its composition; and
four other gentlemen of the Inn, one of whom was
12 IN RE SHAKESPEARE'S
Francis Bacon, devised the dumb shows introduc
ing the several acts.
Francis Bacon also contributed to " The Prince
of Purpoole," which was represented at Gray's Inn
in 1594.
In 1594 Shakespeare's " Comedy of Errors " was
represented at Gray's Inn; and, in 1601, his
"Twelfth Night" at the Inner Temple. (See
Appleton Morgan's Introduction to vol. xxii. of
" The Bankside Shakespeare.")
In 1612 a masque by George Chapman was pro
duced by members of the Middle Temple and Lin
coln's Inn; and one by Francis Beaumont by the
members of the Inner Temple and Gray's Inn in
1613. (See Morley's Introduction to "Jonson's
Masques," Carisbrooke Library, p. 23.)
The above, of course, is not a complete list of
such representations. " In those days . . . the
Inns of Court vied with each other in masques and
pageants as much as in the record of Chancellors
and Chief Justices " (Strac'hey's Introduction to
" Beaumont and Fletcher," Mermaid Series, p. 13).
LEGAL ACQUIREMENTS. 1 3
II.
HOW SHAKESPEARE HAS BEEN MADE A LAWYER.
IT was the custom in Shakespeare's time for
youth to leave school at fourteen or fifteen years
of age; and it cannot be supposed that William at
tended school after reaching that age, in 1579. To
account for what he did from then until 1586 has
been a fruitful source of speculation for his biog
raphers. There are traditions that he was appren
ticed to a butcher, a glover, and nearly all the trades
followed at Stratford, but none that he was an at
torney or an attorney's clerk. But his enthusiastic
biographers felt under the necessity of accounting
for these years when no scrap has been found to
throw any light upon his life except the memoranda
relative to the, publication of the banns for his mar
riage and the birth of his children, and as each new
biographer felt that he must add some new sugges
tion in order to distinguish himself from his prede
cessors, it was finally, in 1790, by Malone, supposed
that he might have been a clerk in an attorney's
office, thus killing two birds with one stone, and
accounting jiot only for the barren seven years, but
for the legal expressions to be found in his works.
This new idea was eagerly taken up, and in 1858,
Mr. T. Payne Collier sought the opinion of Lord
14 IN RE SHAKESPEARE'S
Campbell, the eminent author of " The Lives of the
Chief Justices " and of " The Lives of the Lord
Chancellors," who replied, in part, as follows:
" Were an issue tried before me as Chief Justice at
the Warwick assizes whether William Shakespeare,
late of Stratford-upon-Avon, gentleman, ever was
a clerk in an attorney's office in Stratford-upon-
Avon aforesaid, I should hold that there is evidence
to go to the jury in support of the affirmative, but
I should add that the evidence is very far from
being conclusive, and I should tell the twelve gen
tlemen in the box that it is a case entirely for their
decision without venturing even to hint to them,
for their guidance, any opinion of my own. Should
they unanimously agree in a verdict either in the
affirmative or negative, I do not think that the
court, sitting in banco, could properly set it aside
and grant a new trial."
The learned Lord Chancellor then proceeds to
give his views in detail, and though he says that
if the issue were tried before him he would not
venture even to hint to the jury an opinion of his
own, he has no such scruples when addressing Mr.
Collier or the readers of his published book; he
scorns the idea that the "gentle Shakespeare"
could have been engaged in killing calves or work
ing in leather, and thinks it highly improbable that
he could have followed any meaner occupation than
that of an attorney's clerk, and adds " perhaps his
employer sent him up to the metropolis to conduct
suits before the Lord Chancellor or the superior
courts of common law at Westminster, according
LEGAL ACQUIREMENTS. 15
to the ancient practice of country attorneys who
would not employ an agent to divide their fees."
The reasons given by Lord Campbell for the faith
that was in him, besides the legalisms in the plays,
are as follows:
" ' Envy does merit as its shade pursue; '
and rivals whom he surpassed, not only envied
Shakespeare, but grossly libeled him. Of this we
have an example in ' An Epistle to the Gentlemen
Students of the Two Universities, by Thomas
Nash,' prefixed to the first edition of Robert
Greene's ' Menaphon ' (which was subsequently
called ' Greene's Arcadia '), according to the title
page, published in 1589. The alleged libel on
Shakespeare is in the words following, viz. :
" ' I will turn back to my first studies of delight,
and talk a little in friendship with a few of our triv
ial translators. It is a common practice nowadays,
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
scarce Latinize their neck-verse if they should have
need; yet English Seneca, read by candle light,
yields many good sentences, as blood is a beggar,
and so forth ; and if you entreat him fair in a frosty
morning, he will afford you whole Hamlets; I
should say whole handfuls of tragical speeches.
But, O grief! Tempus edax rerum what is it that
will last always? The sea exhaled by drops will in
continuance be dry; and Seneca, let blood, line by
16 IN RE SHAKESPEARE'S
lina and page by page, at length must needs die to
our stage.' "
The term " Noverint " was applied to lawyers
because in Elizabeth's time most legal documents
were in Latin, and began " Noverint universi per
presentes."
Lord Campbell continues: " In 1592 Greene fol
lowed up the attack in his ' Groat's Worth of Wit,'
in the following language: ' There is an upstart
crow, beautified with our feathers, that with his
Tyger's heart wrapped in a player's hide, supposes
he is as well able to bombast out a blank verse as
the best of you; and being an absolute Johannes
Fac-totum, is in his own conceit the only Shakes-
scene in a country.' "
Upon these slender threads Lord Campbell hangs
these conclusions: " Therefore, my dear Mr. Payne
Collier, in support of your opinion that Shakespeare
had been bred to the profession of the law in an at
torney's office, I think you will 'be justified in say
ing that the fact was asserted publicly in Shakes
peare's lifetime by two contemporaries of Shakes
peare, who were engaged in the same pursuits with
himself, who must have known him well, and who
were probably acquainted with the whole of his
career."
It seems to me impossible for a logical mind to
draw such a conclusion. There is no legitimate
connection between the two extracts by which it
can be asserted that they both refer to the same per
son. Standing by itself, the quotation from Nash
cannot be made to refer to Shakespeare unless the
LEGAL ACQUIREMENTS. I?
reference to Hamlet has this effect; while Greene
does not refer to him as connected with the Law!
Nash was notorious for an envious and quarrel
some disposition, and it is idle, and indeed against
the known facts, to suppose that Shakespeare was
the only dramatist who could excite his animosity.
His paper war with Dr. Harvey is one of the bit
terest of which we have any record. Refer
ring to this controversy, Sir John Harrington, a
contemporary poet, addressed the following verses
to Dr. Harvey:
The proverb says, who rights with dirty foes
Must needs be foiled, admit they win or lose:
Then think it does a Doctor's credit dash
To make himself antagonist to Nash.
Thomas Freeman's Epigrams, 1614, contains the
following:
OF THOMAS NASH.
Nash, had Lycambes on earth living been
The time thou wast, his death had been all one;
Had he but moved thy tartest Muse to spleen
Unto the fork he had as surely gone:
For why ? there lived not that man, I think,
Us'd better or more bitter gall in ink.
A MS. Epitaph runs thus:
Here lies Tom Nash, that notable railer,
That in his life ne'er paid Shoemaker or tailor.
In Dekker's " A Knight's Conjuring, Done in
Earnest, Discovered in Jest," alluded to above, the
1 8 IN RE SHAKESPEARE'S
associate poets represented as consorting in the
Elysian fields are Peele, Greene, and Marlowe.
To this company when it is proposed to enlarge
it by the addition of Nash, that poet is brought in
thus. " . . Whil'st Marlowe, Greene, and Peele
had gotten under the shades of a large vyne, laugh
ing to see Nash (that was but newly come to their
colledge) still haunted with the sharpe and satyri-
call spirit that followed him here upon earth; for
Nash inveyed bitterly, as he was wont to do," etc.
Such evidences of Nash's bad temper, and the gen
eral dislike in which he was held, might be multi
plied. (See Dodsley's " Old Plays," vol. ix. p. 7.)
Now it is certain that Shakespeare was not " born
to the trade of Noverint "; but the number of con
temporary dramatists who are known to have been
connected with the legal profession by birth or edu
cation is large as above shown, and any of them
might have excited Nash's envy. Indeed, his hand
seems to have been against every man, and every
man's hand against him.
Nor is the reference to " whole Hamlets " proof
of a reference to Shakespeare. The story of Ham
let appears to have greatly interested the Eliza
bethan age. Why, it is not so clear. Belleforest's
" translation " of Saxo Grammaticus' " Amleth "
was practically a new work. It was, as anybody
can see from comparing the two versions, about
six times as long.* And it added and padded and
involved the original story to an extraordinary
state of confusion. It was this Belleforest produc-
* See The Bankside Edition of Hamlet Appendix A.
LEGAL ACQUIREMENTS. 1 9
tion (called Hamlet and not Amleth, because as
Dr. Morgan has pointed out,* Frenchmen as well
as Englishmen transposed their h's), written and
published about 1570, and translated into English,
which, if any, Shakespeare saw. Capell (in the
Introduction to the first volume of his edition of
Shakespeare, p. 52) says, " There can be no doubt
made by persons who are acquainted with these
things, that the translation is not much younger
than the French original."
Shakespeare's son Hamnet (in the Stratford doc
uments published by Halliwell-Phillipps, spelt Am-
blet, Hamlet, and Hamnet) is by many supposed t$
have been named for Hamlet; he was born in 1585,
certainly some years before the father could have
written a play on the subject.
Malone (Variorum, 1821, vol. ii. p. 372), after
quoting the passage from Nash above referred to,
continues : " Not having seen the first edition of this
tract till a few years ago I formerly doubted
whether the foregoing passage referred to the trag
edy of Hamlet; but the word Hamlets being printed
in the original copy in a different character from the
rest, I have no longer any doubt on the subject.
It is manifest from this passage that some play on
the story of Hamlet had been exhibited before the
year 1589; but I am inclined to think that it was
not Shakespeare's drama, but an elder performance,
on which with the aid of the old prose Historic of
Hamblet, his tragedy was formed. The great num-
* See ' ' A Study in the Warwickshire Dialect," by Apple-
ton Morgan, etc. (the third edition), p. 41.
20 IN RE SHAKESPEARE'S
her of pieces which we know he formed on the per
formance of preceding writers, renders it highly
probable that some others also of his dramas were
constructed on plays that are now lost. . . Nash
seems to point at some dramatic writer of that time
who had originally been a scrivener or attorney,
and instead of transcribing deeds and pleadings,
had chosen to imitate Seneca's plays, of which a
translation had been published many years before.
Shakespeare, however freely he may have borrowed
from Plutarch or Holinshed, does not appear to be
at all indebted to Seneca; and I therefore do not
believe he was the person in Nash's contemplation."
Finally, Shakespeare himself said that "Venus
and Adonis," which appeared in 1593, was the
" first heir of [his] invention," and it would seem
therefore that strong proof ought to be required
before assigning an earlier date to any of his plays.
Knight, referring to the same passage in Nash,
says: " Does this description apply to him [Shakes
peare] ? Was he thriving by no art? In 1589 he
was established in life as a sharer in the Black-
friars' theater. Does the term ' whole Hamlets ' fix
the allusion on him? It appears to us only to show
that some tragedy called 'Hamlet,' it may be
Shakespeare's, was then in existence; and that it
was a play also at which Nash might sneer as
abounding in tragical speeches. But it does not
seem that there is any absolute connection between
the noverint and the ' Hamlet.' Suppose, for ex
ample, that the ' Hamlet ' alluded to, was written by
Marlowe, who was educated at Cambridge, and
LEGAL ACQUIREMENTS. 21
was certainly not a lawyer's clerk. The sentence
will read as well; the sarcasm upon the tragical
speeches of the 'Hamlet' will be as pointed; the
shifting companion who has thriven by no art, and
has left the calling to which he was born, may study
English Seneca till he produces ' whole Hamlets,
I should say handfuls, of tragical speeches.' In the
same way Nash might have said whole Tambur-
laines of tragical speeches, without attempting to
infer that the author of ' Tamburlaine ' had left the
trade of Noverint. We believe that the allusion
was to Shakespeare's ' Hamlet/ but that the first
part of the sentence had no allusion to Shakes
peare's occupation. The context of the passage ren
ders the matter even clearer. Nash begins., ' I will
turn back to my first text of studies of delight, and
talk a little in friendship with a few of our trivial
translators.' Nash aspired to the reputation of a
scholar; and he directs his satire against those who
attempted the labors of scholarship without the re
quisite qualifications. The trivial translators could
scarcely latinize their neck-verse they could
scarcely repeat a verse of Scripture, which was the
ancient form of praying the benefit of clergy.
Seneca, however, might be read in English. We
have then to ask, Was ' Hamlet ' a translation or
an adaptation from Seneca? Did Shakespeare
ever attempt to found a play upon the model of
Seneca; to be a trivial translator of him; to trans
fuse his sentences into dramatic composition? If
this imputation does not hold good against Shakes
peare, the mention of ' Hamlet ' has no connection
22 IT RE SHAKESPEARE'S
with the shifting companion who is thus talked of
as a trivial translator. Nash does not impute
these qualities to ' Hamlet,' but to those who busy
themselves with the endeavors of art in adapting
sentences from Seneca which should rival whole
' Hamlets ' in tragical speeches. 'And then he im
mediately says, ' But, O grief! Tempus edax
rerum; what is it 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.' "
Lord Campbell himself seems to realize that his
rea'ders will not agree with him in his belief that the
extract from Nash has any tendency to prove that
Shakespeare was ever connected with the law, for,
at the end of his book (p. 138), he protests, " I am
quite serious in what I have written about Nash and
Robert Greene having asserted the fact; but I by
no means think that on this ground alone it must
necessarily be taken for truth. Their statement
that he belonged to the profession of the law may
be as false as that he was a plagiarist from Seneca."
Lord Campbell, after giving the quotations above
referred to, proceeds to analyze the plays, and finds
legal expressions in all but fourteen of the thirty-
seven plays usually attributed to Shakespeare.
From the appearance of Lord Campbell's book
down to the present time, the work of collecting
these legalisms and writing ingenious essays to
prove that they exhibit a profound knowledge of the
law, has gone on with unremitting zeal, until the
conclusion has been reached that Shakespeare was
LEGAL ACQUIREMENTS. 23
not a mere clerk, but was himself a profound law
yer; and the laborious and learned German Shakes
pearian, Karl Elze, thinks his hero must certainly
have been a practicing attorney, because he has
found two suits instituted for the recovery of small
sums of money, wherein Shakespeare was the
plaintiff, and in which no attorney's appearance is
entered, and that accordingly, Shakespeare must
have conducted them himself; while other scholars
have gone so far as to assert that no less a lawyer
than Francis Bacon could have written the plays.
24 IN RE SHAKESPEARE'S
III.
SOME LATER CONVERTS TO THE SHAKESPEARE-
LAWYER DOCTRINE.
BY far the ablest and most comprehensive con
tribution to the subject of Shakespeare's legal ac
quirements has been made by that eminent lawyer
and statesman, Senator Cushman K. Davis, whose
work of over three hundred pages was published in
1884, quickly went through two editions and is now
out of print. Senator Davis attaches no importance
to Nash's reference to "Noverint"; but bases his
argument entirely upon the internal evidence of the
plays and poems. In all he finds that law terms
have been used 312 times; but as he enumerates
each repeated use of the same word, and as nearly
all of them are used more than once, and many as
often as four or five times, the number of distinct
legal expressions is very much less. And there is
a strained effort to discover legalisms where the
average reader, even though he be a lawyer, would
least suspect them ; and to swell the list many words
cited are not strictly legal words at all, e. g.,
Having ever seen in the prenominate crimes,
The youth you breathe of, guilty, be assured.
" Hamlet," Act II. scene i.
LEGAL ACQUIREMENTS. 25
Senator Davis' comment is: " Prenominate " is the
synonym of " aforesaid."
. . . See them render this
Unto my cousin's hand, Doctor Bellario.
" Merchant of Venice," Act III. scene 4.
Here " render " is 'forced into service because " ren
dering and yielding as rent " is the phrase in leases.
Among other words given as illustrations of
legalisms are: bourn, edict, traitor, pardon, reprieve,
respite, writ, oath, bail, execution, outlawry, ver
dict, jointure, dowry, attainder, distrained, inheri
tance, warrant (" There's law and warrant, lady, for
my curse," " King John," Act II. scene i), tene
ment, last will and testament, etc. The frequent
use of such word's can have no tendency to prove a
knowledge of law.
On the other hand, Senator Davis points out
numerous instances where legal terms are correctly
used with their strictly technical meanings; and he
bases a strong argument on the cumulative effect
of such repeated instances. Just how many of
these there are it is a matter of some difficulty to
say, as they are scattered through the book in the
midst of such words as are mentioned above, which
are not used in any legal or technical sense; but
I believe they do not number over twenty-five or
thirty.
He further argues that " Shakespeare has a law
yer's conservatism. He respected the established
order of things. . . There is nowhere [in his works]
a hint of sympathy with personal rights as against
the sovereign, nor with parliament, then first as-
26 IN RE SHAKESPEARE'S
suming its protective attitude toward the English
people. . . In all his works there is not one direct
word for liberty of speedh, thought, religion those
rights which in his age were the very seeds of time,
into which his eye of all men's could best look to
see which would grow and which would not."
To say that this spirit of " uncompromising
feudalism " indicates a legal training is to make an
assertion in the very teeth of history. Coke's spirit,
which resisted the prerogative, which upheld the
common law and chartered rights of the people,
which maintained the equality of all men in the eye
of the law, was and is typical of the lawyer. This
is the " conservatism " which education in the law
breeds in its devotees. All history proves it. That
Shakespeare had none of this conservatism, that in
" ' King John ' he ignored the Magna Charta, that
he ever and always shows a patrician contempt for
popular rights " this proves, if it proves anything,
that he had not a legal training.
I believe an equal labor, an equally microscopic
examination of the dramas, an equally ingenious
application of all the references to medicine would
prove with as much certainty that their author was
a physician; but, so far as I am aware, none of the
numerous writers upon his medical knowledge has
as yet asserted that he either practiced or studied
the science of Galen, to whom he so often refers.
That his use of military expressions proves
Shakespeare to have been a soldier has been seri
ously contended. (See W. J. Thoms's " Notelets
on Shakespeare," London, 1865.)
LEGAL ACQUIREMENTS. 27
IV.
AN ENGLISH QUEEN S COUNSEL S REMARKABLE
OPINION.
BUT most wonderful pronouncement of all, Mr.
Edward James Castle, Q. C., in 1897 prints a book
" Shakespeare, Bacon, Jonson, and Greene " in
which he completely falls under the umbra of Lord
Campbell as to the value and significance of these
" legalisms " in the Plays. Mr. Castle divides
Shakespeare's dramas into legal and non-legal plays,
discovering, or professing to discover, vast legal
lore in the former and ignorance of the law in the
latter. In his Introduction he states that his
studies upon the subject were not made with a view
to support a theory. But it would appear that,
when Mr. Castle came to write his book, his
" discovery " (to use his own word) warped his
judgment.
For even assuming that his theory is correct,
that some plays show knowledge and others igno
rance of law; Mr. Castle's conclusion that the for
mer must have been or even probably were the joint
production of Shakespeare and Bacon, or some
other lawyer, who worked together as Beaumont
and Fletcher did, is certainly a non sequitur.
Writers of all times, when treating of technical sub
jects, have been wont to consult and take the advice
28 IN RE SHAKESPEARE'S
of men skilled in those subjects; the novelist who
introduces medical or legal subjects consults with
a physician or lawyer sometimes he correctly uses
the knowledge he thus acquires, and sometimes he
does not. Or, without consulting a specialist, he
may have some familiarity with technical terms, and
may use them with accuracy or otherwise.
Mr. Castle's efforts to show real legal knowledge
in the plays are labored in the extreme. The first
instance he gives of legalisms fairly illustrates them
all, and my criticism upon it is fairly applicable to
them all. Shakespeare uses the word "color" as
meaning "apparent, not real," which is its significa
tion when used as a law term. Mr. Castle devotes
five pages of his work to detailing the various
technical refinements drawn by the old lawyers in
regard to " giving color " in pleadings, and assumes
that, because " color " is used with its legal mean
ing, it must have been a lawyer who so used it, and
that he knew all these technical refinements an
unwarranted presumption even in the case of a pro
fessional lawyer. Color, in its application to plead
ing, was, I believe, abolished in England by the pro
cedure act of 1852, and this may be some excuse for
Mr. Castle's admitted ignorance (p. 20) on the sub
ject, but it is still in force in all states where the
common-law procedure is in vogue, and the average
lawyer, who knows little or nothing of the refine
ments in its use mentioned by Mr. Castle, refers to
it familiarly in his everyday practice. But the use
of the word color was not confined to the science of
pleading; it was and still is used in other applica-
LEGAL ACQUIREMENTS. 9
tions with practically the same meaning: as " color
of title," a title prima facie good, but for some rea
son, not apparent on its face, not good in fact; and
" color of office," as where an act is done by an offi
cer under pretense that it is within his authority,
when in truth it is not, it is said to be done under
color of office, colore officii. The use of the word
color in its legal sense of " apparent, not real " can
not certainly indicate profound knowledge of law,
and it is simply absurd to assume that the mere use
of a technical legal term by Shakespeare indicates
that he had a knowledge of all the hair-splitting
logic which the ancient doctors of the common law
used in applying legal doctrines and terms to par
ticular cases. The " rule in Shelley's case " any
lawyer can define, but of its application in particular
cases every lawyer is doubtful ; the average layman
is familiar with the phrase, but, according to Mr.
Castle's logic, if a lay writer uses it this fact indi
cates that he is a profound lawyer and has a knowl
edge of all the vast learning and ingenious logic
used in the application of the rule and embodied in
many volumes of reports and text-books.
Shakespeare, in common with his contemporaries
and in common with observant men for many cen
turies previous to his time, knew that all terrestial
bodies are attracted toward the center of the earth,
and he several times refers to this fact; we must
therefore believe, if we follow Mr. Castle's mental
processes, that Shakespeare was familiar with the
law of gravitation and a^l its applications; that he
knew Newton's and Kepler's laws and all modern
3 IN RE SHAKESPEARE'S
astronomy. Old Capulet calls Juliet's fine distinc
tion between being proud of the County Paais and
being thankful for him "chop logic." * I know of
no other term so apt and appropriate to apply to
Mr. Castle's book.
But if he was unfortunate in his efforts to dis
cover legal knowledge in the " legal " plays, he be
comes positively puerile when he undertakes to
prove lack of such knowledge in the " non-legal "
plays. After a careful search through the many
pages devoted to this part of his work I have failed
to discover a single instance given by him of any real
blunder in the use of legal terms. The following
quotations fairly illustrate his arguments here:
" ' Plead my successive title with your swords.'
" It is incongruous to speak of pleading with
swords. Grotius speaks of the antagonism be
tween the law and arms; how in times of peace the
former, and in war the latter, prevail. Cedant anna
toga is the maxim for the first; Inter arma sileant
[sic] leges for the second.
" ' Successive title ' even shows more strongly
want of legal training. Malone indeed, interprets
it as meaning ' my title to the succession '; no doubt
this is its meaning, but successive title means one
title succeeding another, as successive waves, etc.,
and might perhaps be used where independent titles
* " Romeo and Juliet," III. v. 150. The late Mr. S. S. Cox
once referred to the speech of a fellow-congressman as
" chopstick logic," which is even more appropriate.
LEGAL ACQUIREMENTS. 3 1
follow one another; a somewhat difficult thing to
conceive, as a title is continuous.
" ' But yet I'll make assurance doubly sure
And take a bond of fate.'
" It is impossible to see, even by way of meta
phor, how killing Macduff is taking a bond of
fate. . . It is mere sound, not sense, and the word
is wrongly used.
" ' Our high -placed Macbeth
Shall live the lease of nature, pay his breath
To time and mortal custom.'
" What mortal custom means it is difficult to say,
unless perhaps, customary or common mortality.
But it should be the lease from nature."
How utterly inane and childish such criticism is!
And yet Mr. Castle gives no better illustrations
than these to prove Shakespeare's ignorance of law
in what he calls the " non-legal " plays.
The reader will notice that most of the instances
hereinafter given of Shakespeare's mistakes in the
use of legal terms are taken from Mr. Castle's
" legal plays," to wit, " Hamlet," " Richard III.,"
" Henry VIII.," and " 3 Henry VI.," etc.
3 2 IN RE SHAKESPEARE'S
V.
SOME OF SHAKESPEARE'S ERRORS IN LEGAL.
TERMINOLOGY.
FOR my part I see no profound knowledge of law
displayed in the plays. It would indeed be strange,
considering the surroundings of Shakespeare's
birth and education, if he did not make frequent use
of legal expressions. Could the universal genius,
who apparently like his own creation, Posthumus
Leonatus, had
" All the learnings, that his time
Could make him the receiver of: which he took
As we do air,"
have been brought up as it were within the four
walls of a court house, with the litigants, jurors, and
lawyers his daily companions, and have failed to
absorb, aye, drink in as he did the air, digest and
make his own, a large fund of the legal lore of his
surroundings? On the contrary, for him not to
have done so would be a matter of infinite surprise.
To me it seems that it ought to be apparent to
any lawyer, who is not an enthusiast, that Shakes
peare's knowledge of law was simply a knowledge
of legal expressions, with a fairly correct idea of
their application such as any bright man attending
court frequently and in daily companionship with
LEGAL ACQUIREMENTS. 33
lawyers could not fail to acquire; and that of the
law itself he had no real knowledge, except such
little as he could pick up in the manner indicated.
Though the frequent use of legal terms, with
their proper technical meanings, has a cumulative
effect, and tends strongly to prove a legal training;
yet a very few errors in such use, if glaring and
gross, would absolutely nullify that effect and proof.
Without presuming to rival the learning and in
genuity, the patience and labor bestowed by Lord
Campbell and Senator Davis, I have collected some
instances of inaccuracy in the use of law-terms
which I believe destroy the force of their reasoning.
Tell me what state, what dignity, what honor
Canst thou demise to any child of mine ?
" Richard III.," Act IV. scene 4.
Dignities and honors could not be demised. 3
Comyn's Dig. Tit. Dignity (E), 2 Bl. Com. 36, 37.
Besides, to be demanded of a sponge ! What replication
Should be made by the son of a king ?
" Hamlet," Act IV. scene 2.
A very few days, or, at most, weeks, of practical
training in a lawyer's office would have sufficed to
teach Shakespeare that this is an incorrect use of
the word replication. The course of pleading is as
follows : The plaintiff makes his demand on the de
fendant by a narratio or declaration; the defendant
replies by a plea ; and the plaintiff's reply to this plea
is called a replication. Certainly comment is here
unnecessary. Apparently Shakespeare determined
to make use of a legal expression even if he had to
34 IN HE SHAKESPEARE'S
do violence to it, to commit an assault on it, as it
were, and lug it in by the ears. And the same may
be said of some of the other instances hereafter
given. Shakespeare's was a learned and a pedantic
age, and while he could not rival his more plod
ding contemporaries in their labored efforts to
weigh down their works with classical allusions,
none of them at all rivaled him in his knowledge of,
and his reference to, that great world around him
all that he could see and hear. He knew the habits
of birds and insects, the properties of herbs and
flowers, and besides, soon had a grasp of all the
knowledge of that brilliant gathering of play
wrights, his contemporaries and associates, among
whom were lawyers, physicians, divines, and nearly
all of whom were classical scholars. Like Leonatus
he took his " learnings " as we do air; he breathed
it in; he absorbed it; he did not get it out of books.
This is what Milton means when he contrasts Jon-
son's with Shakespeare's learning:
" Then to the well-trod stage anon,
If Jonson's learned sock be on,
Or sweetest Shakespeare, Fancy's child,
Warble his native woodnotes wild."
But legal expressions are highly technical, and
when Shakespeare attended those feasts of the law
in courts and in gatherings of attorneys, and car
ried away scraps, it is not at all surprising that he
should occasionally commit an error when he used
them so frequently. And when, in a comparatively
few instances, his applications of law terms are so
highly technical and so correctly given as to sug-
LEGAL ACQUIREMENTS. 35
gest a lawyer's touch, can we not readily believe
that here he took advice of some lawyer friend?
In the very nature of things he must have had many
such friends.
Till you compound whose right is worthiest
We, for the worthiest, will hold the right from both.
" King John," Act II. scene i.
And we here deliver,
Subscribed by the consuls and patricians,
Together with the seal o' the senate, what
We have compounded on.
" Coriolanus," Act V. scene 6.
Content you, gentlemen; I will compound this strife;
'Tis deeds must win the prize; and, he of both,
That can assure my daughter greatest dower
Shall have Bianca's love.
" The Taming of the Shrew," Act II. scene i.
To compound (though cited as a legalism by
Senator Davis) is in all these cases used in the gen
eral sense of to settle or determine; but, in a legal
sense, it is to settle in a particular manner, as where
a creditor agrees to receive part of his debt in satis
faction of the whole ; or, in criminal law, where one
receives a consideration to refrain from prosecuting
a wrongdoer, as when one whose goods have been
stolen agrees not to prosecute the thief if the goods
are returned, which is called " compounding, a fel
ony," where the theft amounted to a felony. To
day, in general literature, the word is used in pretty
much the same sense in which Shakespeare uses it
perhaps this is due to the force of his great
example.
3<5 IN RE SHAKESPEARE'S
For if a king'bid a man be a villain, he is bound by the
indenture of his oath to be one.
" Pericles," Act I. scene 3.
Here the oath of allegiance is referred to. The
use of the word " indenture " is entirely out of
place. '
" ' An indenture ' was a writing containing a con
veyance, bargain, or contract . . . between two or
more parties, consisting of the same matter written
twice or oftener on the same sheet with a space
between, where, after execution, the parchment was
cut in a serrated or indented line, and a part
delivered to each of the parties." Burrill's Law
Dictionary.
The word indenture has survived to modern
times, though actual indenting or cutting is never
done; but in Shakespeare's time it seems actual in
denting was necessary to constitute an " inden
ture " (5 Co., 21, Stile's Case), and it was so in
Maryland until 1794, when it was abolished by
chapter 57 of the Acts of that year.
An oath never (and ex vi termini not an oath of
allegiance, it being unilateral) had anything to do
do with an indenture or an indenture with an oath.
Glend. Come, here's the map; shall we divide our
right
According to our threefold order ta'en ?
Mart. The archdeacon hath divided it
Into three limits very equally.
Hot. Me thinks my moiety, north from Burton here,
In quantity ^equals not one of yours.
" i Henry IV.," Act III. scene i.
LEGAL ACQUIREMENTS. 37
Moiety (L. Lat. mediatas) does not mean a third.
A half; one of two equal parts. Co. Litt. 34 a, b.
It is to be noted, however, that some modern law
yers and text-writers use the word moiety as inac
curately as Shakespeare, as though it could mean
a third, or any part.
I do believe,
Induced by potent circumstances, that
You are my enemy, and make my challenge.
You shall not be my judge,
I do refuse you for my judge, and here
Before you all, appeal unto the pope.
" Henry VIII.," Act II. scene 4.
To " challenge " is to object or except to those
who are returned to act as furors, either individ
ually or collectively as a body. The judge was not
subject to challenge.
In which our valiant Hamlet
For so this side of our known world esteemed him
Did slay this Fortinbras ; who by a sealed compact,
Well ratified by law and heraldry,
Did forfeit with his life. . ,
" Hamlet," Act I. scene i.
Here " well ratified by " means " strictly in ac
cordance with." As a legalism its use is out of
place.
" Ratification is where a person adopts a con
tract or other transaction which is not binding on
him because entered into by an unauthorized agent.
Thus, if A enters into a contract on behalf of B,
without having B's authority to do so, B may either
repudiate or adopt the contract; if he adopts it he
is said to ratify it, and it then takes effect as if it
had been originally made by his authority."
Rapalje & Lawrence's Law Die.
Therefore our sometime sister, now our queen,
The imperial jointress to this warlike State. . .
" Hamlet," Act I. scene 2.
"Jointress, a woman who has an estate settled
on her by her husband, to hold during her life if
she survive him." Co. Lift. 46.
Jointure was one of the means used for barring
dower. It was an estate settled on the wife before
marriage, and in lieu of dower; if made after mar
riage, upon the husband's death the widow could
either accept it or reject it and take her dower at
common law (2 Bl. Comm. 137).
Queen Gertrude could have neither a dower nor
a jointure in the kingdom of Denmark.
Boyet. So you grant pasture for me \offering to kiss her.~\
Mar. Not so, gentle beast ;
My lips no common are, though several they be.
" Love's Labor Lost," Act II. scene i.
Shakespeare doubtless knew that one cannot at
the same time hold a thing in common and in sev-
eralty, and if so, he here sacrifices his knowledge
for a mere play on words, which I fancy a profes
sional pride, if he had had any legal training, would
not have permitted him to do.
War. Why should you sigh, my lord?
King H. Not for myself, Lord Warwick, but my son,
Whom I unnaturally shall disinherit.
LEGAL ACQUIREMENTS. 39
But be it as it may: I here entail
The crown to thee, and to thine heirs forever;
Conditionally that thou here take an oath
To cease this civil war, and, whilst I live,
To honor me as thy king and sovereign;
And neither by treason, nor hostility,
To seek to put me down and reign thyself.
" 3 Henry VI.," Act I. scene i.
Senator Davis admits an inaccuracy here. I
quote his language (p. 199) : " This is an attempt to
grant the crown, subject to a condition subsequent.
The use of the word entail here seems to be inac
curate, for, though the use of the word heirs is
necessary to create a fee, so the word ' body ' or
some other words of procreation are necessary to
make it a fee tail. A gift to , man and his heirs,
male or female, is an estate in fee simple and not
in fee tail " (2 Bl. Comm., 114).
You three, Biron, Dumain, and Longaville,
Have sworn for three years' term to live with me,
My fellow scholars, and to keep those statutes
That are recorded in this schedule here.
Your oaths are passed, and now subscribe your names.
" Love's Labor's Lost," Act I. scene i.
The word " statutes " is here used to mean simply
articles of agreement. It has no such meaning in
law. A statmte is an act of the legislature of a
country. " Statutes-merchant " and " statutes-
staple " were the names of certain securities for debt
in Shakespeare's time, and perhaps this gave him
the idea that any agreement might be called a
statute.
4 IN RE SHAKESPEARE'S
Adr. Why, man, what is the matter?
Dro. S. I do not know the matter: he is 'rested on the
case.
" The Comedy of Errors," Act IV. scene 2.
He was not arrested " on the case." Civil actions
at law are broadly divided into two classes: actions
ex contractu, growing out of breach of contract,
either express or implied, and actions ex delicto, for
the recovery for wrongs independent of contract.
The suit against Antipholus was of the former class,
being for the recovery of the price of goods pur
chased from the jeweler; an action on the case is
one of the actions ex delicto.
Antipholus was actually placed under arrest
upon the simple statement of the jeweler to an offi
cer that the former was indebted to him, without
writ, warrant, or any process whatever.
Sec. Mer. Therefore make present satisfaction, or I '11
Attach you by this officer.
Well, officer, arrest him at my suit,
Ang . Either consent to pay the sum for me,
Or I attach you by this officer.
Here is thy fee ; arrest him, officer.
" The Comedy of Errors," Act IV. scene i.
Justice must be administered in a very primitive
style, where one who claims that another is indebted
to him can call an officer and say, " Here, officer,
this man owes me money; arrest him." Lawyers
and courts would be unnecessary, and no one could
LEGAL ACQUIREMENTS. 4 1
complain of the law's delay where such a summary
method of procedure was permitted.
Cant. For all the temporal lands, which men devout
By testament have given to the church,
Would they strip from us.
" Henry V.," Act I. scene i.
The use of the word " testament " is here incor
rect. A testator bequeaths personal property by a
" testament "; he devises real estate by a " will."
Antony. Moreover he hath left you all his walks,
His private arbors, and his new planted orchards,
On this side Tiber, he hath left them you,
And to your heirs forever.
" Julius Csesar," Act III. scene 2.
In regard to this passage Senator Davis says:
" It is to be remarked that Antony, in speaking of
the real estate left by Caesar to the Roman people,
does not use the appropriate word ' devise.'
Shakespeare nowhere uses the word in connection
with a will. It was also unnecessary for Caesar's
will to have contained the expression ' to your heirs
forever ' in order to give the people a perpetual
estate in the reality."
Shylock. Go with me to a notary ; seal me there
Your single bond, and in a merry sport
If you repay me not on such a day,
In such a place, such sum or sums as are
Expressed in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body it pleaseth me.
" Merchant of Venice," Act I. scene 3.
42 IN RE SHAKESPEARE'S
It is hardly conceivable that any lawyer, or any
one who had spent a considerable time in a law
yer's office, hi Shakespeare's age, could have been
guilty of the egregious error of calling a bond with
a collateral condition a " single bond." A single
bond, simplex obligatio, is a bond without a collateral
condition, but that described By Shylock is with
collateral condition. It is possible that a lawyer in
this age would be guilty of ignorance on this point ;
but hardly in Elizabeth's ag, and least of all a law
yer in an inland town like Stratford. In our time,
the use of sealed instruments except in cases of con
tracts in reference to real estate, contracts by cor
porations, and bonds with collateral condition, has
largely ceased among merchants and business men
generally, though still in frequent use by lawyers.
This disuse of sealed instruments is, perhaps,
chiefly due to the extension of the lex mercatoria,
and the advantage of negotiability that pertains to
most unsealed instruments, and is also undoubtedly
largely due to the fact that almost all men can write
their names, and that not to be able to do so is con
sidered a disgrace. Certain legal incidents, for his
torical reasons, still attach to sealed instruments;
but, for practical business purposes, the private
seal is now a useless survival of the Middle Ages.
Its use has been abolished by statute in most of the
Western States. But in Shakespeare's time the
situation was entirely different. The seal was in
universal use. Indeed it is beyond dispute that
sometimes educated men belonging to the gentry,
instead of writing their names themselves, would
LEGAL ACQUIREMENTS. 43
prefer to have them written by the draughtsman of
the instrument which they were to sign and would
themselves simply affix their seals, as being dis
tinctive of their house or family; and tradesmen
who could write would merely make their marks,
they being generally distinctive of their trade or
calling. The probability is that in the small town
of Stratford, having little or no commerce with the
outside world, the use of the promissory note, bill of
exchange, or any unsealed instrument was entirely
unknown to its business people. Accordingly, it
must be assumed that the difference between a
single bond and a bond with a collateral condition
was thoroughly understood by every lawyer and
every lawyer's clerk in Stratford.
But in this play, Shakespeare not only mani
fests his lack of knowledge of the technique of the
legal profession; he shows a profound ignorance of
law and of the fundamental principles of justice
unless we assume that the trial scene disregards all
ideas of law, justice, and morality for mere dramatic
effect; but it has been repeatedly shown by many
writers that equal dramatic effect could have been
attained without such sacrifice.
Portia, as aniicus curia;, or referee, in " The
Merchant of Venice " makes five distinct rulings
which are bad in law, in logic, and in morals.* Shy-
*See " Shakespeare in Fact and in Criticism," Appleton
Morgan ; New York, Benjamin, 1888, p. 180. To make
these errors more apparent, Dr. Morgan imagines the case
of Shylock and Antonio, as decided by Portia, sent back
for a new trial before Portia, and finally as reversed, as
to every one of her rulings, by a full bench on appeal.
44 IN RE SHAKESPEARE'S
lock sues for the penalty under his bond. Portia
decides that the contract is lawful, and that he has a
right to the penalty. Ex turpe causa non oritur
actio was a maxim of the Civil as well as the Com
mon law. Shakespeare was himself apparently
familiar with it, for in " Henry VI.," Part II. Act
V. Scene I, he says:
" Who canst be bound by any solemn vow
To do a murderous deed, to rob a man," etc.
The action could no more have been sustained in
Venice than it could in England. Yet Portia
awards judgment.
" A pound of that same merchant's flesh is thine,
The court awards it, and the law doth give it."
But she adds:
" Tarry a little, there is something else.
The bond doth give thee here no jot of blood,
The words expressly are, a pound of flesh;
Then take thy bond, take thou thy pound of flesh,
But. in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are by the laws of Venice confiscate
Unto the State."
Well might Shylock exclaim " Is that the law? "
Whoever heard of flesh without blood? A fig
without seeds, a nut without a shell?
The court, having pronounced judgment and
awarded execution, tells Shylock that he must
himself execute the judgment. He might well have
answered, " I have come here for the court to give
me justice, not to take the law in my own hands.
LEGAL ACQUIREMENTS. 45
I am not an officer of the court ; let the court's offi
cers execute its judgment, and let them be respon
sible for failure to do so properly. Even if the
court gave a judgment for so much money I should
perhaps render myself liable in an action for dam
ages if I attempted to collect it myself. It would
be the business of the court, through its own offi
cers, to collect my money, and it is the business
and duty of the court to deliver me my pound of
flesh. I have no right to take it myself, and no
court of justice can have the legal power or moral
right to make a suitor therein responsible for the
execution of its judgments."
But the next ruling is more remarkable than the
former. Shylock says he will accept the tender of
thrice the bond; but Portia answers "Thou shall
have nothing but the penalty," and
" If them tak'st more
Or less than a just pound, be it so much
As makes it light or heavy in the substance
Or the division of the twentieth part
Of one poor scruple, nay, if the scale do turn
But in the estimation of a hair,
Thou diest, and all thy goods are confiscate."
Can one imagine it being a criminal act for a
creditor to take less than the amount due him?
And, to cap the climax, this remarkable judge
then rules that Shylock has forfeited the principal
of his debt because he refused a tender. The
climax? No; that was still to come. The court
quickly resolves itself into one of criminal jurisdic
tion, and the Jew's goods and life are declared for-
46 IN RE SHAKESPEARE'S
feit: and for what? For having dared to make a
contract which that same court had a moment be
fore declared valid and binding. And finally this
judge, who had given utterance to that eloquent
appeal for mercy, stands by while the Jew is re
quired, on pain of forfeiture of his life, to abandon
the cherished religion of his fathers and his race,
and embrace the hated religion of the Christian
an ingenuity of cruelty surpassing that of the
thumbscrew or the rack. And all this; the three
thousand ducats he had lent, all his property, and
all the property which he might afterward acquire
(for he was required to record in court a deed of
gift of all he died possessed), his religion, and even
his life all forfeited because he had made a con
tract which the court held was valid and could be
enforced.
And, by the way, this deed of gift is another
blunder in law. It is a fixed principle of the com
mon law that a man cannot convey a thing which
he has not, though he afterward acquire it. Only
things in esse, having an actual or potential exist
ence, were subjects capable of gift or grant
(Comyn's Dig. Tit: Grant (D)).
It has been suggested to the author of these
papers that this deed of gift might have been valid
as a gift causa mortis, or as a Will. But of course
no lawyer need be told that it has not a single ele
ment necessary to the validity of a gift causa mortis,
either under the Civil or Common law. Cooper's
Justinian (ed. 1852), pp. 100, 476.
To be sure instruments in the form of deeds have
LEGAL ACQUIREMENTS. 47
frequently been construed to be wills under the
Common Law. " There is nothing that requires
so little solemnity," said Lord Hardwick (in Ross
vs. Ewen, 3 Atkins, 163), " as making a Will of per
sonal property, for there is scarcely any writing
which will not be admitted as such." In Maryland
in 1883 a letter written by a decedent to his daugh
ter was held to be a valid will of personalty
(Byers vs. Hoppe, 61 Md. 206). Indeed, any writ
ing signed by the party making a disposition of
property to take effect after death, whether in the
form of a deed, or whatever its form, might or could
be construed to be a will. It would appear, how
ever, that this was not so by the Civil law. By it
certain particular formalities were necessary in the
making of a will (Cooper's Justinian, Ed. 1852, p.
112, et seq.}, and it is therefore improbable that a
paper executed as a deed of gift, could, under that
system, be adjudged to be a will. But Shylock's
deed of gift of " all he died possessed " would not
have been valid as a will of real estate which he
might acquire after the date of its execution, any
more than it would have been as a deed of gift as
to " after-acquired " property. Other reasons of a
technical nature might be given why this deed
could not have taken effect as a will either under
the Common law or the Civil law of Venice. But
they are unnecessary. The deed of gift which Shy-
lock was required to execute was not his voluntary
act, and it is a contradiction in terms to speak of
an involuntary act as a will or testament (which lat
ter word is essentially identical in meaning with
48 IN RE SHAKESPEARE'S
" will "). Testamcntum ex eo appellatur, quod tes-
tatio mentis sit.
This deed of gift was required to be recorded
" here in the court." The recital of such an in
strument (for a paper in the form of a deed always
shows the consideration or cause of its execution)
would show on its face that it was executed in pur
suance of a decree of the court, and not by the vol
untary act of the party.
The court which passed upon Shylock's case did
not observe the distinction of England between
courts of law and equity, but assumed to act as both
(indeed, it also assumed criminal jurisdiction).
Now, a court of equity originally acted wholly by
decrees in personam, and enforced its decrees in no
other way than by fine and imprisonment for dis
obedience. Where, therefore, one obeys such a de
cree, he cannot be said to act voluntarily.
Waiving, however, all fine distinctions, I con
clude: If Shakespeare desired to show his knowl
edge of law by indicating that a paper in the form
of a deed may be considered a will; the method
he uses to do so, of itself, shows gross ignorance of
the fundamental principles of the law. Assuming
that this was Shakespeare's intention, he in effect
makes the court order and decree Shylock to
execute a will, and file it in the court. If any court
ever had such power, this is, I believe, the only re
corded instance of its exercise. But it is an
absurdity in terms. Assuming, however, that the
court had the power, its exercise would be futile,
for, if the deed which Shylock executed was in fact
LEGAL ACQUIREMENTS. 49
a will, he could immediately afterwards have re
voked it and made a new and last Will and Testa
ment, thereby defeating the object of Portia's de
cree a thing which could not be within the pur
view of the dramatic action of the Play. Portia's
object was to compel Shylock to execute a paper
which would have the finality of a judicial action.
It is the last will that counts, just as in the case of
deeds, it is the first.
Of course, if Shylock died intestate, Jessica
would inherit or succeed to his property, provided
he did not afterwards remarry, and have other chil
dren; in which case she would only have taken her
pro rata share. But what would happen in case of
intestacy is not under discussion. The question is,
was the paper valid either as a will or as a deed?
The result is that Portia's effort to vest Jessica
(who had married a Christian) with Shylock's
estate, real and personal, was as abortive and as
ridiculous as any or all of her judicial pronounce
ments. Lawyers who, like my Lord Campbell and
Senator Davis, desire to swear Shakespeare in as a
lawyer learned in the law had best omit con
sideration of " The Merchant of Venice."
I cannot close my reference to the law of this
play better than by quoting again from Von Iher-
ing:
" The truth remains truth, even when the indi
vidual defends it only ffom the narrow point of view
of his personal interests. It is hatred and revenge
that takes Shylock before the Court to cut his
pound of flesh out of Antonio's body; but the words
5 IN RE SHAKESPEARE'S
which the poet puts into his mouth are as true in it
as in any other. It is the language which the
wounded feeling of legal right will speak, in all
times and in all places; the power, the firmness of
the conviction, that law must remain Law, the lofty
feeling and pathos of a man who is conscious that,
in what he claims, there is a question not only of
his person but of The Law. ' The pound of flesh,'
Shakespeare makes him say:
" ' The pound of flesh which I demand of him,
Is dearly bought, is mine, and I will have it;
If you deny me, fie upon your law;
There is no force in the decrees of Venice.
. . . I crave the law.
. . . I stay here upon my bond.'
" ' I crave the law.' In these four words, the
poet has descpibed the relation of the law, in the
subjective, to law in the objective sense of the term:
and the meaning of ' The Struggle for Law,' in a
manner better than any philosopher of the law
could hav done it. These four words change Shy-
lock's claim into a question of the Law of Venice.
To what mighty, giant dimensions does not the
weak man grow, when he speaks these words! It
is no longer the Jew demanding his pound of flesh;
it is the Law of Venice itself, knocking at the door
of justice; for his Rights and the Law of Venice
are one and the same; they must stand or fall
together."
We feel little pity for Shylock, but our sense of
reverence for the law is shocked the majesty of
the Law is degraded.
LEGAL ACQUIREMENTS. 5 1
Thus I believe I have shown, though in a very
brief and imperfect way, that Shakespeare had no
knowledge of the technique of law, and no just ap
preciation of those fundamental principles of jus
tice which are the basis of all law. Though he
excelled all other men who have ever lived in
knowledge of, and in ability to portray, human
nature in all its aspects, his ideas of human rights
were narrow and bigoted.
It has been said that Englishmen for generations
took their religion from Milton, and their history
irom Shakespeare; but for their law they have
looked and must look to an entirely different class
of men.
THE END.
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