Atlantic Monthly, Vol. 4, No. 21, July, 1859 by Various

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"The comprehensive mind of our poet embraced almost every object of
Nature, every trade, every art, the manners of every description of men,
and the general language of almost every profession: but his knowledge
of legal terms is not such as might be acquired by the casual
observation of even his all-comprehending mind; it has the appearance of
_technical_ skill; and he is so fond of displaying it, on all occasions,
that I suspect he was early initiated in at least the forms of law, and
was employed, while he remained at Stratford, in the office of some
country attorney, who was at the same time a petty conveyancer, and
perhaps, also, the seneschal of some manor court."--Vol. I. Part I. p.
307.

[Footnote B: _Shakespeare a Lawyer_. By William L. Rushton. 16mo. pp.
50. London: 1858.

_Shakespeare's Legal Acquirements Considered_. By John Lord Campbell,
LL.D., F.R.S.E. 12mo. pp. 117. London: 1859.]

[Footnote C: Into the trap so innocently set the London _Athenaeum_ thus
plunges headlong:--"Chalmers, we believe, first put Shakespeare in an
attorney's office. Malone _accepted the hint_."]

To this, Chalmers, some years after, (1797,) in his "Apology for the
Believers in the Shakespeare Papers which were exhibited in Norfolk
Street," (some contemptible forgeries, by a young scapegrace named
William Ireland, which should not have deceived an English scholar of
six months' standing,) made the following reply:--

"Mr. Malone places the aspiring poet 'in the office of some country
attorney, or the seneschal of some manor court'; and for this violation
of probability he produces many passages from his dramas to evince
Shakespeare's _technical skill_ in the _forms of law_. ...But was it not
the practice of the times, for other makers, like the bees tolling from
every flower the virtuous _sweets_, to gather from the thistles of the
law _the sweetest_ honey? Does not Spenser gather many a metaphor from
these weeds, that are most apt to grow in _fattest_ soil? Has not
Spenser his law-terms: his _capias, defeasance_, and _duresse_; his
_emparlance_; his _enure, essoyn_, and _escheat_; his _folkmote,
forestall_ and _gage_; his _livery_ and _seasin, wage_ and _waif_? It
will be said, however, that, whatever the learning of Spenser may have
gleaned, the law-books of that age were impervious to the illiterature
of Shakespeare. No: such an intellect, when employed on the drudgery of
a wool-stapler, who had been high-bailiff of Stratford-upon-Avon, might
have derived all that was necessary from a very few books; from Totell's
'Presidents,' 1572; from Pulton's 'Statutes,' 1578; and from the
'Lawier's Logike,' 1588. It is one of the axioms of the 'Flores Regii,'
that, To answer an improbable imagination is to fight against a
vanishing shadow."--p. 553.

And again, in his "Supplemental Apology," etc., 1799, Chalmers
remarks,--

"The biographers, without adequate proofs, have bound Shakespeare an
apprentice to some country attorney; as Mr. Malone has sent him without
sufficient warrant to the desk of some seneschal of a county court: but
these are obscurities that require other lights than conjecture and
assertion, which, by proving nothing, only establish disbelief."--p.
226.

So much for Chalmers's having "first suggested" the theory, of which
Lord Campbell has undertaken the support. Surely his Lordship must have
been verifying Rosalind's assertion, that lawyers sleep between term and
term, or else he is guilty of having loosely made a direct assertion in
regard to a subject upon which he had not taken the trouble to inform
himself; although he professes (p. 10) to have "read nearly all that has
been written on Shakespeare's _ante-Londinensian_ life, and carefully
examined his writings with a view to obtain internal evidence as to his
education and breeding."

One exhibition of his Lordship's inaccuracy is surprising. Commenting
upon Falstaff's threat, "Woe to my Lord Chief Justice!" (2d _Henry_ IV.,
Act V., Sc. 4,) he remarks, (p. 73,) "Sir W. Gascoigne was _continued_
as Lord Chief Justice _in the new reign_; but, according to law and
custom, he was removable, and he no doubt expected to be removed, from
his office." Lord Campbell has yet to rival the fifth wife of the
missionary who wrote the lives of "her predecessors"; but surely _he_
should have known that the expectations which he attributes to Sir
William Gascoigne were not disappointed, and that (although the contrary
is generally believed) the object of Falstaff's menace was superseded
(by Sir William Hankford) March 29th, 1413, just eight days after the
prince whom he committed to prison came to the throne,--a removal the
promptness of which would satisfy the strictest disciplinarian in the
Democratic party. The Records show this; but his Lordship need not have
gone to them; he would have found it mentioned, and the authority cited,
by Tyler in his "Memoirs of Henry the Fifth."

And while we are considering the disparity between his Lordship's
performances and his pretensions, we may as well examine his fitness to
bring about a "fusion of Law and Literature," which he says, with some
reason, have, like Law and Equity, been too long kept apart in England.
We fear, that, whatever may be the excellence of his Lordship's
intentions, he must set himself seriously to the task of acquiring more
skill in the use of the English tongue, and a nicer discrimination
between processes of thought, before his writings will prove to be the
flux that promotes that fusion.

For, in the third paragraph of his letter, he says to Mr. Collier, "I
cannot refuse to communicate to you my _sentiments_ upon the subject,"
and in the following sentence adds, that this communication of his
"_sentiments_" will drive from his mind "the _recollection_ of the
wranglings of Westminster Hall." His Lordship probably meant to refer to
the communication of his _opinions_, for which word "sentiments" is
not usually substituted, except by gentlemen who remark with emphasis,
"Them's my sentiments"; and he also probably intended to allude to
the _memory_ of the wranglings of which he is professionally a
witness,--having forgotten, for a moment, that recollection is a purely
voluntary act, and not either a condition or a faculty of the mind.

Again, when his Lordship says, (p. 18,) "That during this interval (A.D.
1579 to 1586) he [Shakespeare] was merely an operative, earning his
bread by manual labor, in stitching gloves, sorting wool, or killing
calves, no sensible man can possibly _imagine_" we applaud the decision;
but can hardly do as much for the language in which it is expressed.
Lord Campbell quite surely meant to say that no man could possibly
_believe_, or _suppose_, or _assent to_ the proposition which he sets
forth; and when (on p. 26) he again says, "I do not _imagine_ that when
he [Shakespeare] went up to London, he carried a tragedy in his pocket,"
there can be no doubt that his Lordship meant to say, "I do not _think_
that when," etc. He should again have gathered from his Shakespearean
studies a lesson in the exact use of language, and have learned from the
lips of "that duke hight Theseus" that imagination has nothing to do
with assent to or dissent from a proposition, but that

"The lunatic, the lover, and the poet
Are of imagination all compact:
* * * * *
And, as imagination bodies forth
The forms of things unknown, the poet's pen
Turns them to shapes, and gives to airy nothing
A local habitation and a name."

_A Midsummer Night's Dream_, Act V. Sc. 1.

We would not protract this finding of faults, and will only add, that,
when his Lordship says, (p. 116,) that Henry V. "astonished the world
with his universal _wisdom_" he entirely overlooks the fact, that wisdom
is a faculty of the mind, or, rather, a mode of intellectual action,
of which universality can no more be predicated than of folly, or of
honesty, or of muscular strength; and that it is not knowledge, or
at all like knowledge; which, indeed, is often acquired in a very
remarkable degree by persons eminent for unwisdom. Lord Campbell might
as well have said that Henry V. astonished the world with his universal
prowess in the battle-field.

The censure to which Mr. Rushton's pamphlet is occasionally open in
regard to style may properly be averted by the modesty of its tone and
its unpretending character.

But to pass from the manner to the matter of the learned gentlemen who
appear on behalf of Malone's theory. Lord Campbell, after stating, in
the introductory part of his letter, that in "The Two Gentlemen of
Verona," "Twelfth Night," "Julius Caesar," "Cymbeline," "Timon of
Athens," "The Tempest," "King Richard II.," "King Henry V.," "King Henry
VI., Part I.," "King Henry VI., Part III.," "King Richard III.," "King
Henry VIII.," "Pericles," and "Titus Andronicus,"--fourteen of the
thirty-seven dramas generally attributed to Shakespeare,--he finds
"nothing that fairly bears upon this controversy," goes on to produce
from the remaining plays, _seriatim_, such passages as in his judgment
do bear upon the question, and to remark upon them, thus isolated and
disconnected from each other. Mr. Rushton is more methodic and logical.
He does not merely quote or cite all the passages which he has noticed
in which legal terms occur, but brings together all such as contain the
same terms or refer to kindred proceedings or instruments; and he thus
presents his case with much more compactness and consequent strength
than results from Lord Campbell's loose and unmethodical mode of
treating the subject. We can arrive at the merits of the case on either
presentation only by an examination of some of the more important of the
passages cited.

Lord Campbell, as we have just seen, mentions "Henry VIII." as one of
the fourteen plays in which he has found nothing which relates to the
question in hand; but Mr. Rushton opens his batteries with the following
passage from the very play just named; and to most readers it will seem
a bomb of the largest dimensions, sent right into the citadel of his
opponents:--

"_Suff_. Lord Cardinal, the king's further pleasure is,--
Because all those things you have done of late
By your power legatine within this kingdom
Fall into compass of a _premunire_,--
That therefore such a writ be sued against you,
To forfeit, all your goods, lands, tenements,
Chattels, and whatsoever, and to be
Out of the king's protection:--this is my
charge."

_King Henry VIII_. Act iii. Sc. 2.

We shall first remark, that, in spite of his declaration as to "Henry
VIII.," Lord Campbell does cite and quote this very passage (p. 42);
and, indeed, he must have been as unappreciative as he seems to have
been inaccurate, had he failed to do so; for, upon its face, it is, with
one or two exceptions, the most important passage of the kind to be
found in Shakespeare's works. _Premunire_ is thus defined in an old
law-book which was accessible to Shakespeare:--

"Premunire is a writ, and it lieth where any man sueth any other in the
spirituall court for anything that is determinable in the King's
Court, and that is ordeined by certaine statutes, and great punishment
therefore ordeined, as it appeareth by the same statutes, viz., that
he shall be out of the King's protection, and that he be put in prison
without baile or mainprise till that he have made fine at the King's
will, and that his landes and goods shal be forfait, if he come not
within ij. moneths."--_Termes de la Ley_, 1595, fol. 144.

The object of the writ was to prevent the abuse of spiritual power. Now,
here is a law-term quite out of the common, which is used by Shakespeare
with a well-deployed knowledge of the power of the writ of which it is
the name. Must we, therefore, suppose that Shakespeare had obtained his
knowledge of the purpose and the power of this writ in the course
of professional reading or practice? If we looked no farther than
Shakespeare's page, such a supposition might seem to be warranted.
But if we turn to Michael Drayton's "Legend of Great Cromwell," first
published, we believe, in 1607, but certainly some years before "Henry
VIII." was written, and the subject of which figures in that play, we
find these lines,--

"This Me to urge the _Premunire_ wonne,
Ordain'd in matters dangerous and hie;
In t' which the heedlesse Prelacie were runne
That back into the Papacie did fie."

Ed. 1619, p. 382.

Here is the very phrase in question, used with a knowledge of its
meaning and of the functions of the writ hardly less remarkable than
that evinced in the passage from "Henry VIII.," though expressed in
a different manner, owing chiefly to the fact that Drayton wrote a
didactic poem and Shakespeare a drama. But Drayton is not known to have
been an attorney's clerk, nor has he been suspected, from his writings,
or any other cause, to have had any knowledge of the law. Both he and
Shakespeare, however, read the Chronicles. Reading men perused Hall's
and Holinshed's huge black-letter folios in Queen Elizabeth's time with
as much interest as they do Macaulay's or Prescott's elegant octavos in
the reign of her successor, Victoria. Shakespeare drew again and again
upon the former for the material of his historical plays; and in writing
"Henry VIII.," he adopted often the very language of the Chronicler. The
well-known description of Wolsey, which he puts into the mouth of Queen
Katherine,--

"He was a man
Of an unbounded stomach, ever ranking
Himself with princes; one that by suggestion
Tith'd all the kingdom: Simony was fair play:
His own opinion was his law: I' the presence
He would say untruths; and be ever double,
Both in his words and meaning; He was never,
But where he meant to ruin, pitiful:
His promises were, as he then was, mighty;
But his performance, as he is now, nothing:
Of his own body he was ill, and gave
The clergy ill example,"--

is little more than the following paragraph from Holinshed put into
verse:--

"This cardinal! (as you may perceive in this storie) was of a great
stomach, for he compted himselfe equall with princes, and by craftie
suggestion gat into his hands innumerable treasure: he forced little
on simonie, [i.e., regarded it as of little consequence,] and was not
pittifull, and stood affectionate in his owne opinion: in open presence
he would lie and saie untruth, and was double both in speach and
meaning: he would promise much and performe little: he was vicious of
his bodie, and gave the clergie evill example."--Ed. 1587, vol. iii. p.
622.

Turning back from the page on which the Chronicler comments upon the
life of the dead prime-minister, to that on which he records his fall,
we find these passages:--

"In the meane time, the king, being informed that all those things that
the cardinall had doone by his _power legatine within this realme_ were
in the case of the _premunire_ and provision, caused his attornie,
Christopher Hales, to sue out a writ of premunire against him. ...After
this in the king's bench his matter for the premunire being called upon,
two atturneis which he had authorised by his warrant, signed with his
owne hand, confessed the action, and so had judgement to _forfeit all
his lands, tenements, goods, and cattels, and to be out of the king's
protection_."--Ib. p. 909.

If the reader will look back at the passage touching the premunire,
quoted above, he will see that these few lines from Raphael Holinshed
are somewhat fatal to an argument in favor of Shakespeare's "legal
acquirements," in so far as it rests in any degree upon the use of terms
or the knowledge displayed in that passage. Shakespeare and Drayton are
here in the same boat, though "not with the same sculls."

Before we shelve Holinshed,--for the good Raphael's folios are like
Falstaff in size, if not in wit, and, when once laid flat-long, require
levers to set them up on end again,--let us see if he cannot help us to
account for more of the "legalisms" that our Lord Chief Justice and
our barrister have "smelt out" in Shakespeare's historical plays. Mr.
Rushton quotes the following passages from "Richard II.":--

"_York_. Is not Gaunt dead? and doth not
Hereford live?

* * * * *

Take Hereford's rights away, and take from time
His _charters_ and his _customary rights_;
Let not to-morrow, then, ensue to-day:
Be not thyself; for how art thou a king,
But by fair sequence and succession?
Now, afore God, (God forbid I say true!)
If you do wrongfully seize Hereford's rights,
Call in the _letters patents_ that he hath
By his _attorneys-general_ to sue
_His livery_, and deny his _offer'd homage_,
You pluck a thousand dangers on your head."
Act ii. Sc. I.

"_Bol_. I am denied to _sue my livery_ here,
And yet my _letters patents_ give me leave:
My father's _goods are all distrain'd_ and sold;
And these, and all, are all amiss employed.
What would you have me do? I am a subject,
And challenge law: _Attorneys are denied_ me;
And therefore personally I lay my claim
To my _inheritance_ of free descent."--_Ib_. Sc. 3.

And Lord Campbell, although he passes by these passages in "Richard
II.," quotes, as important, from a speech of Hotspur's in the "First
Part of Henry IV.," the following lines, which, it will be seen, refer
to the same act of oppression on the part of Richard II. towards
Bolingbroke:--

"He came but to be Duke of Lancaster,
To _sue his livery_ and beg his bread."
Act iv. Sc. 3.

But, here again, Shakespeare, although he may have known more law than
Holinshed, or even Hall, who was a barrister, only used the law-terms
that he found in the paragraph which furnished him with the incident
that he dramatized. For, after recording the death of Gaunt, the
Chronicle goes on:--

"The death of this duke gave occasion of increasing more hatred in the
people of this realme toward the king; for he seized into his hands all
the rents and reuenues of his lands which ought to have descended vnto
the duke of Hereford by lawfull _inheritance_, in reuoking _his letters
patents_ which he had granted to him before, by virtue whereof he might
make his _attorneis generall_ to _sue liverie_ for him of any manner of
_inheritances_ or possessions that might from thencefoorth fall unto
him, and that his homage _might_ be respited with making reasonable
fine," etc.--HOLINSHED, Ed. 1587, p. 496.

The only legal phrase, however, in these passages of "Richard II," which
seems to imply very extraordinary legal knowledge, is the one repeated
in "Henry IV.,"--"sue his livery,"--which was the term applied to the
process by which, in the old feudal tenures, wards, whether of the king
or other guardian, on arriving at legal age, could compel a delivery
of their estates to them from their guardians. But hence it became a
metaphorical expression to mean merely the attainment of majority, and
in this sense seems to have been very generally understood and not
uncommonly used. See the following from an author who was no attorney or
attorney's clerk:--

"If Cupid
Shoot arrows of that weight, I'll swear devoutly
H'as _sued his livery_ and is no more a boy."
FLETCHER'S _Woman's Prize_, Act ii. Sc. 1.

And this, from the works of a divine:--

"Our little Cupid hath _sued livery_
And is no more in his minority."
DONNE'S Eclogues, 1613.

Spenser, too, uses the phrase figuratively in another sense, in the
following passage,--which may be one of those which Chalmers had in
his eye, when, according to Lord Campbell, he "first suggested" that
Shakespeare was once an attorney's clerk:--

"She gladly did of that same Babe accept,
As of her owne by _liverey and seisin_;
And having over it a litle wept,
She bore it thence, and ever as her owne it kept."
_Faerie Queene_, B. VI. C. iv. st. 37.

So, for an instance of the phrase "fee," which Lord Campbell notices as
one of those expressions and allusions which "crop out" in "Hamlet,"
"showing the substratum of law in the author's mind,"--

"We go to gain a little patch of ground,
That hath in it no profit but the name.
To pay five ducats, five, I would not farm it;
Nor will it yield to Norway or the Pole
A ranker rate, should it be sold _in fee_,"--
Act iv. Sc. 2.

and of which Mr. Rushton quotes several instances in its fuller form,
"fee simple,"--we have but to turn back a few stanzas in this same
canto of the "Faerie Queene," to find one in which the term is used with
the completest apprehension of its meaning:--

"So is my lord now _seiz'd of_ all the land,
As _in his fee_, with peaceable _estate_,
And quietly doth hold it in his hand,
Ne any dares with him for it debate."
_Ib_. st. 30.

And in the next canto:--

"Of which the greatest part is due to me,
And heaven itself, by heritage _in fee_."
_Ib._ C. vii. st. 15.

And in the first of these two passages from the "Faerie Queene," we have
two words, "seized" and "estate," intelligently and correctly used
in their purely legal sense, as Shakespeare himself uses them in the
following passages, which our Chief Justice and our barrister have both
passed by, as, indeed, they have passed many others equally worthy of
notice:--

"Did forfeit with his life all those his lands
Which he stood _seiz'd of_ to the conqueror."
_Hamlet_, Act i. Sc. 1.

"The terms of our _estate_ may not endure
Hazard so near us," etc.--_Ib_. Act iii. Sc. 3.

Among the most important passages cited by both our authors is one that
every reader of Shakespeare will recollect, when it is mentioned to
him,--Hamlet's speech over the skull in the grave-digging scene. But
although this speech is remarkable for the number of law-terms used in
it, only one of them seems to evince any recondite knowledge of the law.
This is the word "statutes," in the following sentence:--

"This fellow might be in's time a buyer of
land, with his statutes, his recognizances, his
fines, his double vouchers, his recoveries."
Act v. Sc. 1.

The general reader supposes, we believe, and very naturally, that here
"statutes" means laws, Acts of Parliament concerning real estate. But,
as Mr. Rushton remarks, (Malone having explained the term before him,)
"The statutes referred to by Hamlet are, doubtless, statutes merchant
and statutes staple." And "a statute merchant (so called from the 13th
Edward I., _De mercatoribus_) was a _bond_ acknowledged before one of
the clerks of the statutes merchant, and the mayor, etc., etc. A statute
staple, properly so called, was a _bond of record_, acknowledged before
the mayor of the staple," etc., etc.

Here we again have a law-term apparently so out of the ken of an
unprofessional writer, that it would seem to favor the Attorney and
Solicitor theory. But let us see if the knowledge which its use implies
was confined to Shakespeare among the dramatists of his time.

In Fletcher's "Noble Gentleman," a comedy, first performed in 1625, we
find a lady, sorely pushed for ready cash, crying out,--

"Take up at any use: give bond, or land,
Or mighty _statutes_, able by their strength
To tie up my Samson, were he now alive."
Act i. Sc. 1.

And in Middleton's "Family of Love," (where, by the way, the Free-Love
folk of our own day may find their peculiar notions set forth and made
the basis of the action, though the play was printed two hundred
and fifty years ago,) we find a female free-loveyer thus teaching a
mercantile brother of the family, that, although she has a sisterly
disregard for some worldly restraints, she yet keeps an eye on the main
chance:--

"Tut, you are master Dryfab, the merchant; your skill is greater in
cony-skins and woolpacks than in gentlemen. His lands be _in statutes_:
you merchants were wont to be merchant staplers; but now gentlemen have
gotten up the trade; for there is not one gentleman amongst twenty but
his lands be engaged in twenty statutes staple."

Act i. Sc. 3.

And in the very first speech of the first scene of the same play, the
husband of this virtuous and careful dame says of the same "Gerardine,"
(who, as he is poor and a gentleman, it need hardly be said, is about
the only honest man in the piece,)--"His lands be _in statutes_." And
that poor debauchee, Robert Greene, who knew no more of law than he
might have derived from such limited, though authentic information as to
its powers over gentlemen who made debts without the intention of paying
them, as he may have received at frequent unsolicited interviews with a
sergeant or a bum-bailiff, has this passage in his "Quip for an Upstart
Courtier," 1592:--

"The mercer he followeth the young upstart gentleman that hath no
government of himself and feedeth his humour to go brave; he shall not
want silks, sattins, velvets to pranke abroad in his pompe; but with
this proviso, that he must bind over his land in a _statute merchant or
staple_; and so at last forfeit all unto the merciless mercer, and leave
himself never a foot of land in England."

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