Chapter 8

Shakespeare as a Lawyer 6

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.