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

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There are, however, very considerable grounds for the opinion that
Shakespeare had more than a layman's acquaintance with the technical
language of the law. For it must be admitted, in the first place, that
he exhibits a remarkable acquaintance with it. That other playwrights
and poets of his day manifest a like familiarity (as we have seen
they do) precludes us, indeed, from regarding the mere occurrence of
law-terms in his works as indications of early training proper to him
alone. But they who, on the strength of the not unfrequent occurrence
of legal phrases in many of the plays and much of the poetry of the
Elizabethan period, would maintain that Shakespeare's use of them
furnishes no basis for the opinion that he acquired his knowledge of
them professionally, must also assume and support the position, that, in
the case of contemporary dramatists and poets, this use of the technical
language of conveyancing and pleading also indicates no more than an
ordinary acquaintance with it, and that, in comparing his works with
theirs in this regard, we may assume the latter to have been produced by
men who had no professional acquaintance with the law; because, if
they had such professional acquaintance with legal phraseology, its
appearance in their works as well as in Shakespeare's would manifestly
strengthen rather than invalidate the conclusion, that his familiarity
with it was acquired as they acquired theirs. This position is, to
say the least, a very difficult one to maintain, and one which any
considerate student of Elizabethan literature would be very unwilling
to assume. For our ignorance of the personal life of Shakespeare is
remarkable only because he was Shakespeare; and we know little, if any,
more about the greater number of his literary contemporaries than we do
about him. It cannot even be safely presumed, for instance, that George
Wilkins, the author of the law-besprinkled passage just above quoted
from the "Miseries of Enforced Marriage," was not a practising attorney
or barrister before or even at the time when he wrote that play. On the
contrary, it is extremely probable, nay, quite certain, that he and many
other dramatic authors of the period when he flourished, (1600-1620,)
and of the whole Elizabethan period, (1575-1625,) were nestling
attorneys or barristers before they became full-fledged dramatists.

We are not without contemporary evidence upon this point. Thomas Nash,
friend to Robert Greene, a playwright, poet, and novelist, whose works
were in vogue just before Shakespeare wrote, in an "Epistle to the
Gentlemen Students of the Two Universities," with which, according to
the fashion of the time, he introduced Greene's "Menaphon" (1587)[D] to
the reader, has the following paragraph:--

[Footnote D: Lord Campbell gives the date 1589; but see Mr. Dyce's
indisputable authority. Greene's Works. Vol. I., pp. xxxvii. and ciii.]

"I will turn my back to my first text of studies of delight, and talk
a little in friendship with a few of our trivial translators. It is a
common practice, now-a-days, amongst a sort of shifting companions
that run through every art and thrive by none, to leave the trade of
Noverint, whereto they were born, and busy themselves with the endeavors
of art, that could scarcely Latinize their neck-verse, if they should
have need; yet English Seneca, read by candlelight, yields many good
sentences, as, _Blood is a beggar_, and so forth; and if you intreat
him fair in a frosty morning, he will afford you whole Hamlets,--I
should say, handfuls of tragical speeches. But, oh grief! _Tempus edax
rerum_,--what is that will last always? The sea, exhaled by drops,
will, in continuance, be dry; and Seneca, let blood line by line and
page by page, at length must needs die to our stage."

It has most unaccountably been assumed that this passage refers to
Shakespeare;[E] and it is even so cited by Lord Campbell himself,--to
our surprise, when we remember his professional training and experience
as a sifter of evidence. But, as far as regards its reference to a
leaving of law for literature, it is clearly of general application.
Nash says, "It is a _common practice_, now-a-days, amongst a sort of
shifting companions, etc., to leave the trade of _Noverint_, whereto
_they_ were born, and busy _themselves,"_ etc. By the trade of
_Noverint_ he meant that of an attorney. The term was not uncommonly
applied to members of that profession, because of the phrase, _Noverint
universi per presentes_, (Know all men by these presents,) with which
deeds, bonds, and many other legal instruments then began. And Nash's
testimony accords with what we know of the social and literary history
of the age. There was no regular army in Elizabeth's time; and the
younger sons of gentlemen and well-to-do yeomen, who received from their
fathers little more than an education and a very small allowance, and
who did not become either military or maritime adventurers, opening
their oyster with a sword, entered the Church or the profession of the
law in its higher or lower grade; and as at that period there was much
more demand for lawyers and much less for clergymen than there is now,
and the Church had ceased to be a stepping-stone to political power and
patronage, while the law had become more than ever before an avenue to
fame, to fortune, and to rank, by far the greater number of these young
gentlemen aspired to the woolsack. But then, as now, the early years of
professional life were seasons of sharp trial and bitter disappointment.
Necessity pressed sorely or pleasure wooed resistlessly, and the slender
purse wasted rapidly away while the young attorney or barrister awaited
the employment that did not come. He knew then, as now he knows, "the
rich man's scorn, the proud man's contumely"; nay, he felt, as now he
sometimes feels, the tooth of hunger gnawing through the principles and
firm resolves that partition a life of honor and self-respect from one
darkened by conscious loss of rectitude, if not by open shame. Happy,--
yet, perhaps, oh, unhappy,--he who now in such a strait can wield the
pen of a ready writer!--for the press, perchance, may afford him a
support which, though temporary and precarious, will hold him up until
he can stand upon more stable ground. But in the reigns of Good Queen
Bess and Gentle Jamie there was no press. There was, however, an
incessant demand for new plays. Play-going was the chief intellectual
recreation of that day for all classes, high and low. It filled the
place of our newspapers, our books, our lectures, our concerts, our
picture-seeing, and, in a great measure, of our social gatherings and
amusements, of whatever nature. It is hardly extravagant to say, that
there were then more new plays produced in London in a month than
there are now in Great Britain and the United States in a year. To
play-writing, then, the needy young attorney or barrister possessed
of literary talent turned his eyes at that day, as he does now to
journalism; and it is almost beyond a doubt, that, of the multitudinous
plays of that period which have survived and the thousands which have
perished, a large proportion were produced by the younger sons of
country gentlemen, who, after taking their degrees at Oxford or
Cambridge, or breaking away from those classic bounds ungraduated,
entered the Inns of Court, according to the custom of their day and
their condition. They wrote plays in Latin, and even in English, for
themselves to act; and they got the professional players to act popular
plays for them on festal days. What more natural, then, than that those
who had the ability and the need should seek to recruit their slender
means by supplying the constant demand for new plays? and how inevitable
that some of them, having been successful in their dramatic efforts,
should give themselves up to play-writing! As do the great, so will the
small. What the Inns-of-Court man did, the attorney would try to do. The
players, though they loved the patronage of a lord, were very democratic
in the matter of play-making. If a play filled the house, they did not
trouble themselves about the social or professional rank of him who
wrote it; and thus came about that "common practice" for "shifting
companions" to "leave the trade of Noverint" and "busy themselves with
the endeavors of art"; and hence it is that the plays of the period of
which we are writing have, in many passages, so strong a tinge of law.

[Footnote E: It seems clear, on the contrary, that Nash's object was to
sneer at Jasper Heywood, Alexander Nevil, John Studley, Thomas Nuce, and
Thomas Newton,--one or more of them,--whose _Seneca, his Tenne Tragedies
translated into Englysh_, was published in 1581. It is a very
grievous performance; and Shakespeare, who had read it thoroughly, made
sport of it in _A Midsummer Night's Dream._]

One reason for the regarding of Nash's sneer as especially directed
against Shakespeare is the occurrence in it of the phrase, "whole
_Hamlets_,--I should say, handfuls of tragical speeches," which has
been looked upon as an allusion to Shakespeare's great tragedy. But the
earliest edition of "Hamlet" known was published in 1603, and even this
is an imperfect and surreptitiously obtained copy of an early sketch of
the play. That Shakespeare had written this tragedy in 1586, when he was
but twenty-two years old, is improbable to the verge of impossibility;
and Nash's allusion, if, indeed, he meant a punning sneer at a play,
(which is not certain.) was, doubtless, to an old lost version of the
Danish tragedy upon which Shakespeare built his "Hamlet."

We have, then, direct contemporary testimony, that, at the period of
Shakespeare's entrance upon London life, it was a common practice for
those lawyers whom want of success or an unstable disposition impelled
to a change in their avocation to devote themselves to writing or
translating plays; and this statement is not only sustained by all that
we know of the customs of the time to which it refers, but is strongly
confirmed by the notably frequent occurrence of legal phrases in the
dramatic literature of that age.

But the question, then, arises,--and it is one which, under the
circumstances, must be answered,--To what must we attribute the fact,
that, of all the plays that have come down to us, written between 1580
and 1620, Shakespeare's are most noteworthy in this respect? For it is
true, that, among all the dramatic writers of that period, whose
works have survived, not one uses the phraseology of the law with the
frequency, the freedom, and the correctness of Shakespeare. Beaumont,
for instance, was a younger son of a Judge of the Common Pleas, and,
following the common routine that we have noticed, after leaving the
University, became an Inns-of-Court man, but soon abandoned law for
literature; his friend and associate, Fletcher, was the son of a bishop,
but had an uncle who was a lawyer and a diplomatist, and is himself
believed to have been of the Inns of Court. Rich gleanings of law-terms
might, therefore, be expected from the plays written by these
dramatists; yet it may safely be asserted, that from Shakespeare's
thirty-seven plays at least twice as many passages marked by legal
phraseology might be produced, as from the fifty-four written by
Beaumont and Fletcher, together or alone! a fact the great significance
of which is heightened by another,--that it is only the vocabulary of
the law to the use of which Shakespeare exhibits this proclivity. He
avails himself, it is true, of the peculiar language of the physician,
the divine, the husbandman, the soldier, and the sailor; but he uses
these only on very rare occasions, by way of description, comparison,
or illustration, when something in the scene or the subject in hand
suggests them. But the technical language of the law runs from his
pen as part of his vocabulary and parcel of his thought. The word
"purchase," for instance, which in ordinary use means to acquire by
giving value, in law applies to all legal modes of obtaining property,
except inheritance of descent. And the word in this peculiar and most
technical sense occurs five times in Shakespeare's thirty-seven plays,
but only in a single passage (if our memory and Mr. Dyce's notes serve
us) in the fifty-four plays of Beaumont and Fletcher. Equal, or greater,
is the comparative frequency with which Shakespeare uses other legal
phrases; and much wider is the disparity, in this regard, between him
and the other dramatic writers of his whole period,--Marlowe, Greene,
Peele, Kyd, Lilly, Chapman, Jonson, Middleton, Marston, Ford, Webster,
Massinger, and the undistinguished crowd.

These facts dispose in great measure of the plausible suggestion,
which has been made,--that, as the courts of law in Shakespeare's time
occupied public attention much more than they do at present, they having
then regulated "the season," as the sittings of Parliament (not then
frequent or stated) do now,[F] they would naturally be frequented by the
restless, inquiring spirits of the time, Shakespeare among them, and
that there he and his fellow-dramatists picked up the law-phrases which
they wove into their plays and poems. But if this view of the case were
the correct one, we should not find that disparity in the use of legal
phrases which we have just remarked. Shakespeare's genius would manifest
itself in the superior effect with which he used knowledge acquired in
this manner; but his _genius_ would not have led him to choose the
dry and affected phraseology of the law as the vehicle of his flowing
thought, and to use it so much oftener than any other of the numerous
dramatists of his time, to all of whom the courts were as open as to
him. And the suggestion which we are now considering fails in two other
most important respects. For we do not find either that Shakespeare's
use of legal phrases increased with his opportunities of frequenting
the courts of law, or that the law-phrases, his use of which is most
noteworthy and of most importance in the consideration of the question
before us, are those which he would have heard oftenest in the course of
the ordinary business of the courts in his day. To look at the latter
point first,--the law-terms used by Shakespeare are generally not those
which he would have heard in ordinary trials at _nisi prius_ or before
the King's Bench, but such as refer to the tenure or transfer of real
property, "fine and recovery," "statutes," "purchase," "indenture,"
"tenure," "double voucher," "fee simple," "fee farm," "remainder,"
"reversion," "dower," "forfeiture," etc., etc.; and it is important to
remember that suits about the title to real estate are very much rarer
in England than they are with us, and in England were very much rarer in
Shakespeare's time than they are now. Here we buy and sell houses and
lands almost as we trade in corn and cotton; but in England the transfer
of the title of a piece of real estate of any consequence is a serious
and comparatively rare occurrence, that makes great work for attorneys
and conveyancing counsel; and two hundred and fifty years ago the
facilities in this respect were very much less than they are now.
Shakespeare could hardly have picked up his conveyancer's jargon by
hanging round the courts of law; and we find,--to return to the first
objection,--that, in his early plays, written just after he arrived in
London, he uses this peculiar phraseology just as freely and with
as exact a knowledge as he displayed in after years, when (on the
supposition in question) he must have become much more familiar with it.
Shakespeare's earliest work that has reached us is, doubtless, to be
found in "King Henry the Sixth," "The Comedy of Errors," and "Love's
Labor's Lost." In the very earliest form of Part II. of the first-named
play, ("The First Part of the Contention betwixt the two Houses of York
and Lancaster," to which Shakespeare was doubtless a contributor, the
part of Cade being among his contributions,) we find him making Cade
declare, (Act iv. Sc. 7,) "Men shall hold of me _in capite_; and we
charge and command that wives be _as free as heart can wish or tongue
can tell_." Both the phrases that we have Italicized express tenures,
and very uncommon tenures of land. In the "Comedy of Errors," when
Dromio of Syracuse says, "There's no time for a man to recover his hair
that grows bald by nature," [Hear, O Rowland! and give ear, O Phalon!]
his master replies, "May he not do it by _fine and recovery?_" Fine and
recovery was a process by which, through a fictitious suit, a transfer
was made of the title in an entailed estate. In "Love's Labor's Lost,"
almost without a doubt the first comedy that Shakespeare wrote, on
Boyet's offering to kiss Maria, (Act ii. Sc. 1,) she declines the
salute, and says, "My lips are no common, though several they be." This
passage--an important one for his purpose--Lord Campbell has passed by,
as he has some others of nearly equal consequence. Maria's allusion is
plainly to tenancy in common by several (i.e., divided, distinct) title.
(See Coke upon Littleton, Lib. iii. Cap. iv. Sec. 292.) She means, that
her lips are several as being two, and (as she says in the next line)
as belonging in common to her fortunes and herself,--yet they were no
common pasture.

[Footnote F: Falstaff, for instance, speaks of "the wearing out of six
fashions, which is four terms or two actions."]

Here, then, is Shakespeare using the technical language of conveyancers
in his earliest works, and before he had had much opportunity to
haunt the courts of law in London, even could he have made such legal
acquirements in those schools. We find, too, that he uses law-terms in
general with frequency notably greater--in an excess of three or four
to one--than any of the other playwrights of his day, when so many
playwrights were or had been Noverints or of the Inns of Court; that
this excess is not observable with regard to his use of the vocabulary
peculiar to any other occupation or profession, even that of the actor,
which we know that he practised for many years; but that, on the
contrary, although he uses other technical language correctly, he avails
himself of that of any single art of occupation with great rarity,
and only upon special occasions. Lord Campbell remarks, as to the
correctness with which Shakespeare uses legal phrases,--and this is a
point upon which his Lordship speaks with authority,--that he is amazed
"by the accuracy and propriety with which they are introduced," and in
another place adds, that Shakespeare "uniformly lays down good law"; and
it is not necessary to be a Chief Justice of the Queen's Bench to know
that his Lordship is fully justified in assuring us that "there is
nothing [of the kind (?)] so dangerous as for one not of the craft to
tamper with our free-masonry." Remembering, then, that genius, though
it reveals general and even particular truths, and facilitates all
acquirement, does not impart facts or the knowledge of technical terms,
in what manner can we answer or set aside the question that we have
partly stated before,--How did it happen, that, in an age when it was
a common practice for young attorneys and barristers to leave their
profession and take to writing plays and poems, one playwright left upon
his works a stronger, clearer, sharper legal stamp than we can detect
upon those of any other, and that he used the very peculiar and, to a
layman, incomprehensible language of the law of real property, as it
then existed, in his very earliest plays, written soon after he, a raw,
rustic youth, bred in a retired village, arrived in London? How did
it happen that this playwright fell into the use of that technical
phraseology, the proper employment of which, more than any other,
demands special training, and that he availed himself of it with
apparent unconsciousness, not only so much oftener than any of his
contemporaries, but with such exact knowledge, that one who has passed
a long life in the professional employment of it, speaking as it
were officially from the eminent position which he has won,--Lord
Campbell,--declares, that,

"While novelists and dramatists are constantly making mistakes as to the
law of marriage, of wills, and of inheritance, to Shakespeare's law,
lavishly as he propounds it, there can neither be demurrer, nor bill of
exceptions, nor writ of error"?

Must we believe, that the man, who, among all the lawyer-playwrights of
his day, showed,--not, be it noticed, (as we are at present regarding
his works,) the profoundest knowledge of the great principles of law and
equity, although he did that too,--but the most complete mastery of
the technical phrases, the jargon, of the law and of its most abstruse
branch,--that relating to real estate,--and who used it very much the
oftenest of them all, and with an air of as entire unconsciousness as
if it were a part of the language of his daily life, making no mistakes
that can be detected by a learned professional critic,--must we believe
that this man was distinguished among those play-writing lawyers, not
only by his genius, but his _lack_ of particular acquaintance with the
law? Or shall we rather believe that the son of the High Bailiff of
Stratford, whose father was well-to-do in the world, and who was a
somewhat clever lad and ambitious withal, was allowed to commence his
studies for a profession for which his cleverness fitted him and by
which he might reasonably hope to rise at least to moderate wealth and
distinction, and that he continued these studies until his father's
loss of property, aided, perhaps, by some of those acts of youthful
indiscretion which clever lads as well as dull ones sometimes will
commit, threw him upon his own resources,--and that then, having
townsmen, perhaps fellow-students and playfellows, among the actors in
London, and having used his pen, as we may be sure he had, for other
purposes than engrossing and drawing precedents, he, like so many others
of his time, left his trade of Noverint and went up to the metropolis to
busy himself with endeavors of art? One of these conclusions is in the
face of reason, probability, and fact; the other in accordance with them
all.

* * * * *

But of how little real importance is it to establish the bare fact, that
Shakespeare was an attorney's clerk before he was an actor! Suppose
it proved, beyond a doubt,--what have we learned? Nothing peculiar to
Shakespeare; but merely what was equally true of thousands of other
young men, his contemporaries, and hundreds of thousands, if not
millions, of those of antecedent and succeeding generations. It has a
naked material relation to the other fact, that he uses legal phrases
oftener than any other dramatist or poet; but with his plastic power
over those grotesque and rugged modes of speech it has nought to do
whatever. That was his inborn mastery. Legal phrases did nothing for
him; but he much for them. Chance cast their uncouth forms around him,
and the golden overflow from the furnace of his glowing thought fell
upon them, glorifying and enshielding them forever. It would have been
the same with the lumber of any other craft; it was the same with that
of many others,--the difference being only of quantity, and not of kind.
How, then, would the certainty that he had been bred to the law help
us to the knowledge of Shakespeare's life, of what he did for himself,
thought for himself, how he joyed, how he suffered, what he was? Would
it help us to know what the Stratford boys thought of him and felt
toward him who was to write "Lear" and "Hamlet," or how the men of
London regarded him who was a-writing them? Not a whit. To prove the
fact would merely satisfy sheer aimless, fruitless curiosity; and it is
a source of some reasonable satisfaction to know that the very
people who would be most interested in the perusal of a biography of
Shakespeare made up of the relation of such facts are they who have
least right to know anything about him. Of the hundreds of thousands
of people who giggled through their senseless hour at the "American
Cousin,"--a play which, in language, in action, in character, presents
no semblance to human life or human creatures, as they are found on any
spot under the canopy, and which seems to have been written on the model
of the Interlude of "Pyramus and Thisbe," "for, in all the play, there
is not one word apt, one player fitted,"--of the people to whom this
play owed its monstrous success, and who, for that very reason, it is
safe to say, think Shakespeare a bore on the stage and off it, a goodly
number would eagerly buy and read a book that told them when he went to
bed and what he had for breakfast, and would pay a ready five-cent
piece for a picture of him as he appeared in the attorney's office, to
preserve as a companion to the equally veritable "portrait of the Hon.
Daniel E. Sickles, as he appeared in prison." Nay, it must be confessed,
that there are some Shakespearean enthusiasts ever dabbling and gabbling
about what they call Shakespeariana, who would give more for the pen
with which he engrossed a deed or wrote "Hamlet," than for the ability
to understand, better than they do or ever can, what he meant by that
mysterious tragedy. Biography has its charms and its uses; but it is not
by what we know of their bare external facts that

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