P R 3028 B78 1914 MAIN GIFT OF u. PRICE 2/6 EACH. BACONIAN THEORY REFUTED. SHAKESPEARE'S USE OF LEGAL TERMS EY CLARENCE MARION BRUNE, LL.D, D.C.L. L prove that Shakespeare must have been learned in the law to make use of such precise language in the creation of the trust to settle one-half the Jew's property upon his daughter and son-in-law, and is even mentioned by one text-book authority (2) in the illustration of a "use."" But, while the passage is in a certain simple sense indi- cative of a trust, I see nothing so extraordinarily striking as to warrant the conclusion that Shakespeare possessed any special erudition in the subject of trusts or uses. The language of the passage is beautifully concise but such as might have been written by any dramatist of the present or of Shakespeare's day, without any special knowledge of the law, more than might be expected in, any well read writer of plays or other fiction. Moreover, when viewed in connection with the conduct of the trial as a whole, it does not seem possible that anyone with any technical knowledge of legal procedure could have written it, any more than they could have written the preceding conspiracy indictment, which has been hereto- fore considered. Taken as a sequel to the conspiracy indictment, if that indictment had been good law, the sequel could doubtless be considered equally sound. But as we have seen that the conspiracy indictment would have been good only if the Court had held the bond to be illegal, and the Court did not so hold, but, on the con- trary, the Court having held the bond to be valid and enforceable, the trust paragraph would have the same legal status, and, likewise, as there could be no action against Shylock for conspiracy under that indictment^ (1) C. K. Davis, Lord Campbell, etc. (2) Lewin's '* Treatise on Trusts." 33 there could be no warranty in law for taking Shylock's goods, or the creation of the trust. We now come to the climax of injustice and legal absurdity in Antonio's proposal: " that he do record a gift, " Here in the court, of all he dies possess'd " Unto his son Lorenzo and his daughter." (1) 'This the Court orders done when the Duke says : " He shall do this ; or else I do recant " The pardon that I late pronounced here." (1) "Shylock, of course, must either lose his life or acquiesce, so he is forced to reply : "I am content." (1) and, Portia says : " Clerk, draw a deed of gift." (1) Shylock, completely broken in spirit by the injustice he lias received, is glad to escape with his life, and makes a .pathetic plea to be allowed to leave the Court : "I pray you give me leave to go from hence: " I am not well, send the deed after me, " And I will sign it." (1) which the Duke brutally grants by saying : "Get thee gone, but do it." (1) And so ends the most remarkable trial scene recorded in literature remarkable alike for its wonderful dramatic effect and legal absurdity. Much ingenuity has been displayed by critics (2) in trying to explain the instrument last mentioned, viz., the " deed of gift, of all he dies possess'd/' All this may be very effective for dramatic purposes, but when examined from a legal point of view, its absurdity is at once apparent, for such an instrument would include all property Shylock might acquire between the time of the (1) " Merchant of Venice," Act IV., Scene 1. (2) Senator Cushman K. Davis : " The Law in Shakespeare," etc. 34 trial and his death, and such a document as Shakespeare- describes here has none of the elements to make it legally effective under either the Civil (1) or Common Law, or rather it has elements that would render it invalid. If it be regarded as a will or as a gift mortis causa, it would fail as such, because it was apparent that it was not his free and voluntary act, and that it was made on compulsion. Moreover, if it is regarded as a will, he would have the right, under either the Civil or Common Law, to alter its terms at any time, or render it null and void by making a later will. Furthermore this order, like the trust and the conspiracy orders, could not be legally operative against Shylock, even if he did not avail himself of his legal rights to rescind the will or gift mortis causa, as one pleases to call it, so long as the Court held that the bond was legal and enforceable, as it did hold the effect of which has been heretofore fully discussed. Therefore, having seen that this trial from beginning to end has not conformed to any known legal form or requirement of either the Civil or Common Law, we must conclude that the law and procedure in this case have no warrant of validity and that the whole matter was a fiction of the author's brain manufactured for his dramatic purposes and that he had no appreciation of their legal significance. Perhaps this is why he had a woman try the case, for we find him saying in another play: "I will make " One of her women lawyers to me, for " I yet not understand the case myself." (2) especially as in this case, he caused a Court of Law to be turned into a Court of Chancery a shifting of jurisdic- tion not known in Shakespeare's day. (1) Cooper's " Justinian," Lib. 2, Til. 12. (2) " Cymbeline," Act II., Scene 3. SHAKESPEARE'S USE OF LEGAL TERMS IN OTHER PLAYS. In considering the use of legal terms by Shakespeare, for the purpose of determining whether or not he had any special technical knowledge of the law, it is necessary to take into consideration, and to always keep in mind, the fact that many words and phrases of a technical and legal character concerning the science of law, and especially that branch of law pertaining to conveyancing, were in common everyday use among laymen in Shake- speare's day, and were not then, as now, confined to the exclusive knowledge of members of the legal profession. The use of such legal terms naturally suggests to the modern reader that the author making use of them must necessarily have had some special training. But when considered from the standpoint of the common know- ledge of such terms at the time they were written, it becomes necessary to differentiate between terms then in common use and terms confined exclusively to the know- ledge of those writers learned in the law. Many terms in common use in everyday transactions have since be- come either quite obsolete or of such infrequent use that the knowledge of their legal significance is now restricted to those who have made a special study of the 36 science indicating research in the use of terms which were heretofore the common knowledge of the average man of affairs. Commentators have endeavoured to show that, by using such terms as appear highly technical to- day, Shakespeare must have been deeply learned in this science. They have expended much energy in this direction over Shakespeare's use and description of the Writ of Prsemunire. Such a term, we must admit, sounds a high note of legal erudition to the layman of to-day, but to the layman of Shakespeare's day it was quite well known. It was used for despoiling the churches and monasteries of their property to secure revenue for the Crown, and was a common topic of the day, as well known to all classes as Church Disestablishment is Known to-day. The only instance of Shakespeare's use of this writ that indicates any special knowledge of it, more than might be expected of any well-informed man of his day, is in the famous scene between Cardinal Wolsey and the Dukes of Norfolk and Suffolk and the Earl of Surrey, (1) which has been quoted by many critics to prove Shakespeare's profound knowledge of the law. But these critics have apparently overlooked the fact that the material for this scene, especially that part of it which is of legal significance, was borrowed bodily from Holinshed, and to show this we now quote in parallel columns from Holinshed and Shakespeare. ;:(!) "King Henry Y III.," Act III., Scene 2. ' 37 HOLINSHED, "In the meantime the King, being informed that all those things the Cardinal had done by his power legatine within this realm were in the case of the prsemunire and its provision, caused his Attorney, Christopher Hales, to sue out a writ of praemunire against him, in the which he licensed him to make his Attorney. And, further- more, the seventeenth of November the King sent the two dukes of Norfolk and Suffolk to the Cardinal at Westminster, who went as they were com- manded, and finding the Cardinal there they declared that the King's pleasure was that he should surrender up the great seal into their hands, and to depart simply unto Asher . . . After this, in the King's bench, his matter for the prsemunire being called upon two Attorneys, which he had authorized by his warrant signed with his own 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." (1) SHAKESPEARE. NORFOLK : "Hear the King's pleasure, Cardinal : who commands you " To render up the great seal presently "Into our hands; and to con- fine yourself " To Asher-house, my lord of Winchester's ' Till you hear further from his highness." SUFFOLK: "Lord Cardinal, the King's further pleasure is : "Because of those things you have done of late ' By ycur power legatine within this kingdom, "Fall into the compass of a prsemunire, " 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." (2) It is interesting to note that there is little difference between the foregoing from a legal point of view. Holinshed uses the word " cattels," while Shakespeare uses the term "chattels." These words, however, were used synonymously in Shakespeare's day, and it would appear that that used by Holinshed was in more technical legal use, while that used by Shakespeare was in greater use by all classes which argues less technical legal skill in Shakespeare than in Holinshed and if we (1) Hplinshed's" Chronicle," pp. 741-743. (2) Shakespeare's Henry VIII," Act III., Scene 2. 38 accept the folio reading of "castles" for "chattels," it makes out a worse case for Shakespeare, because it is difficult to conceive that anyone understanding law would use the word " castles " for the reason that the forfeiture of the Cardinal's lands would also include castles or buildings thereon, unless we assume that the " castles " were on leased land, which is too far-fetched an assumption to be worthy of the slightest consideration, further than to note such slight possibility. Another difference between the two authors is that Holinshed uses the phrase " case of the prsemunire " while Shake- speare uses " compass of a praemunire." This departure from the text of Holinshed seems to have been made by Shakespeare purely for metrical purposes of his verse, and the change has no special legal signiBcance, And, earlier in the same play, we find, in the description of the trial of the Duke of Buckingham, what at first appears to indicate a familiarity with legal procedure and technical terms because the description of the trial, and the legal language used, is fairly accurate ; but, as we have seen that Shakespeare borrowed the Wolsey scene from Holinshed, we find that he has likewise borrowed the material for the description of this scene from Hall's Chronicles, and, as before, we quote the language of the two authors in parallel columns for comparison. HALL. SHAKESPEARE. " When the lordes had taken " The great duke their places, sir Thomas Lowel "Came to the bar; where, to and sir Richard Chomley his accusations, knightes brought the duke to : 'He pleaded still, not guilty, the barre with thaxe of the and alleg'd Tower before him who humbly " Many sharp reasons to defeat bareheaded reverenced the duke the law. of Northfolke, and after all the "The king's attorney, on the lordes and the kinges lerned contrary, 39 ' Urg'd on the examinations, proofs, confessions 1 Of divers witnesses ; which the duke desir'd ' To have brought, viva voce, to his face ; 'At which appear'd against him, his surveyor ; ' Sir Gilbert Peck, his chancellor and John Court, ' Confessor to him ; with that devil-monk, 1 Hopkins, that made this mischief." (2) 'Counsail. Then the Clarke of ye -consail sayd, sir Edward Duke of Buckyngha hold up thy hands, thou are endited of high treason, for that thou traitor- ously hast conspired and ymagined as farre as in thee lay .to shorten the life of our soueraigne lorde the Kyng: of this treason how will thou .acquit e thee, the duke answered by my Peres. And when then- ditement was openly rede, the Duke sayd it is false and untrue, and conspired and forged to bryng me to my death, and that will I prove allegyng many -reasons to falsefy the indite- ment, and against his reasons -the kynges Atturnay alledged the examinacions, cofessions .and proues of witnesses. The Duke desired the witnesses to be brought furth, then was brought before him sir Gylbert Perke priest his Chauncellor, fyrst accuser of the same Duke, Master, Ihon Delacourt priest, the Dukes Confessor and his *owne hand writyng layde before .him to the accusement of the .duke," etc. (1) Thus we see, from a comparison of the texts of Holinshed, Hall and Shakespeare, that it required no .special legal knowledge or training to embody the tech- nical terms and legal effect of Holinshed's and Hall's Chronicles into the apparently technical legal language of the characters in this play of Shakespeare's, especially when this apparently technical language of the law was the common parlance of the day ; and the same is true of many other technical expressions used by Shakespeare and most other contemporary dramatic authors. Many of (1) Hall's " Chronicles," p. 628. (2) Shakespeare's "King Henry VIII, 11 Act II., Scene 1. 40 these words familiar to these laymen have ceased, through disuse, to be familiar at the present time, to all except the members of the legal profession and those who have made a study of the science of the law. As one example among many instances : When the layman of to-day reads of "fine and recovery" in Shakespeare's works or hears it mentioned by a member of the Bar, he does not under- stand it, because there is now no such procedure, and he is at once impressed with the deep learning which he supposes necessary to cope with the use of such high- sounding legal language, but when he realizes that such terms were as well known to all classes then as a parliamentary closure is at the present time, he ceases to marvel at the apparent legal knowledge displayed in their use by Shakespeare and his contemporaries. One of Shakespeare's contemporary dramatists 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 are as full of company as a gaol. If they chance to discourse it is of nothing but statutes, bonds, recognizances, audits, subsidies, rents,, sureties, enclosures, liveries, indictments, outlawries, feoffments, judgements, commissions, bankrupts, amerce- ments and of such horrible matter." (1) All of which goes to show that a man with ^Shakespeare's faculties for ab- sorbtion could, through mingling with these people, easily have made use of many legal terms without having made any special study of the subject. The same condition seems to have prevailed among other contemporary drama- tists as well. Some of these dramatists, it is true, were members of the legal profession, but many of them were (1) Dekker's . Gull's Hornbook." 41 not. One contemporary poet and dramatist in particular, who seems, so far as we are able to ascertain, never to have been in any way connected with the profession of law, has written as much law and much good law too (and the same may be said of others) (1) in one of his plays as we are able to find in any one of Shakespeare's plays: and who has written one passage that contains law terms and legal technicalities enough to confound Blackstone and the Chief Justices of England, as the following will show : "I think it would be something tedious to read all, and therefore, gentlemen, the sum is this: That you, Signor Cornelio, for divers and sundry weighty and mature considerations you especially moving, specifying all the particulars of your wife's enormities in a schedule here- unto annexed, the transcript whereof is in your tenure, custody, occupation and keeping; that for these the aforesaid premises, I say, you renounce, disclaim and discharge Gazetta from being your leeful or your lawful wife, and that you eftsoons, divide, disjoin, separate ? remove, and finally eloigne, sequester and divorce her from your bed and your board ; that you forbid her all access, repair, egress or regress to your, person or persons, mansion or mansions, dwellings, habitations, remainences or abodes, or to any shop, cellar, sollar, easements, chamber, dormer, and so forth, not in the tenure, custody, occupation or keeping of the said Cornelio ; notwith- standing all former contracts, covenants, bargains, conditions, agreements, compacts, promises, vows, affi- ances, assurances, bonds, bills, indentures, poll-deeds, deeds of gift, defeasances, feoffments, endowments, vouchers, double vouchers, priory entries, actions, declara* tions, explications, rejoinders, rights, interests, demands, claims, or titles whatsoever heretofore betwixt the one and the other party or parties being had, made, passed, covenanted and agreed, from the beginning of the world to the day of the date hereof. Given the seventeenth of November, fifteen hundred and so forth. Here, sir, you must set your hand." (2) (1) John Webster's " The Devil's Law Case," etc. (2) George Chapman's " All Fooles," Act IV., Scene 1. 42 Compared with the foregoing Shakespeare's scene over the skull : 44 Where be his quiddits now, his quillets, his cases, his tenures, and his tricks? Why does he suffer this rude knave to knock him about the sconce with a dirty shovel and will not tell him of his action of battery ? Humph ! This fellow might be in's time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries : Is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt ? Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures?" (1) so often cited in support of Shakespeare's legal acquire- ments pales into insignificance as an exhibition of legal technicalities. We find no term of a legal technical nature in this speech that is not used with equal glibness in the language quoted from his two contemporary dramatists, (2) which was common parlance of the day ; and many of the technical legal terms used by these writers are not even to be found in the plays attributed to Shakespeare. We have seen that Shakespeare borrowed his legal phraseology in King Henry VIII. from Holinshed's and Hall's Chronicles let us now consider the source of his ^exposition of the Salic Law in which commentators have found such a marvellous exhibition of Shakespeare's profound legal knowledge. It is granted that, on the face of it, this exposition of the Salic Law seems to indicate great legal erudition on the part of Shakespeare, -and it is amazing to note with what reckless credulity so many commentators have founded their arguments in (1) " Hamlet," Act V., Scene 1. (2) Chapman's "All Fooles," Act IV., Scene 1 ; and Dekker's " Gull's Hornbook." favour of Shakespeare's legal acquirements upon this and other expositions of the law found in his plays, without enquiring into the sources from which he appropriated, not only the subject matter but, oftentimes, the very language used. Holinshed is, again, the source from which he derived the material for his famous exposition of the Salic Law, as will appear from a comparison of the language on the subject, quoted from the two authors, in parellel columns : HOLINSHED.] " Herein did he much envie against the surmised and false fained law Salike which the Frenchmen alledge over against the Kings of England in barre of their just title to the crowns of France. The verie words of that supposed law are these, In terram Salicam miliereo ne seccedant that is to saie, into the Salike land let not woman succeed. Which the French glossers expound to be the realme of France, and that this law was made by King Pharamond ; whereas yet their owne authors affirme that the land Salike is in Germanie between the rivers of Elbe and Sala, and that when Charles the Great overcame the Saxons, he placed there certaine French- men, which having in disdeine the dishonest mouners of the Yeomans women, made a law, that the females should not succeed to any inheritance with- in that land, which at this day is called Meisen, so that if this be true, this law was not made for the realme of France, nor the Frenchmen possessed the land Salike, till foure hundred and one and twentie years after the death of Pharamond, the sup- SHAKESPEARE. " There is no bar "To make against your high- ness' claim to France "But this, which they produce from Pharamond. " * In terram Salicam muliures ne succedant ; ' "No woman shall succeed in Salique land : "Which Salique land the French unjustly gloze "To be the realm of France, and Pharamond " The founder of this law and female bar. " Yet their own authors faith- fully affirm "That the land Salique is in Germany, " Between the floods of Sala and of Elbe ; " Where Charles the Great, hav- ing subdued the Saxons, " Who, holding in disdain the German women " For some dishonest manners of their life, * Establish'd then this law : to wit no female " Should be inheritrix in Salique land ; "Which Salique, as I said, 'twixt Elbe and Sala, " Is at this day in Germany call'd Meisen. posed maker of this Salike law, for this Pharamond deceased in the year 426, and Charles the Great subdued the Saxons, and placed the Frenchmen in those parts beyond the river Sala, in the yeare 805. " Moreover, it appeareth by their owne writers that King Pepine, which deposed Ghil- derike, claimed the crowne of France, as heire generall, for that he was descended of Blithild, daughter of King Clothair the first ; Hugh Capet also, who usurped the crowne upon Charles, Duke of Lorraine, the sole heire male of the line and stocke of Charles the Great, to make his title seeme true, and appeare good, though in deed it was starke nought, con- veied himselfe as heire to the ladie Lingard, daughter of King Charlemaine sonne to Lewes the emperour, that was son to Charles the Great, King Lewes also the tenth, otherwise called Saint Lewes, being verie heir to the said usurper Hugh Capet, could never be satisfied with his conscience how he might justlie keepe and possesse the crowne of France, till he was pursuaded and fullie instructed that Queen Isabel his grand- mother was lineallie descended of the ladie Ermengard, daughter and heire to the above named Charles, duke of Lorraine, by the which marriage, the bloud and line of Charles the Great was againe united and restored to the crowne and scepter of France, so that more cleeare than the sun it openlie appeareth that the title of King Pepin, the claim of Hugh Capet, the possession of Lewes, yea and the French Kings to this daie, are derived and con- veied from the heire female, " Then doth it well appear the Salique law " Was not devised for the realm of France, "Nor did the French possess the Salique land 14 Until four hundred one and twenty years "After def unction of King Pharamond "Idly supposed the founder of this law, " Who died within the year of our redemption "Four hundred twenty-six ;. and Charles the Great " Subdued the Saxons, and did beat the French " Beyond the river Sala, in the year " Eight hundred five. Besides, their writers say, "King Pepin, which deposed Childerick "Did, as heir general, being decended "Of Blithild, which was daugh- ter to King Clothair, "Make claim and title to the crown of France, " Hugh Capet who ursurp'd the crown "Of Charles the duke of Lorraine sole heir male "Of the true line and stock of Charles the Great " To find his title with some shows of truth, " Though, in pure truth, it was corrupt and nought, " Convey'd himself as heir to the Lady Lingare, " Daughter to Charlemain, who was the son " To Lewes the Emperor and Lewes the son "Of Charles the Great also King Lewes the tenth, "Who was sole heir . to the- usurper Capet, "Could not keep quiet in his- conscience 45 ihough they would under the colour of such fained law, barre the Kings and Princes of this realme of England of their right and lawful inheritance." " Wearing the crown of France, till satisfied "That fair Queen Isabel, his grandmother " Was lineal of the Lady Ermengare, " Daughter to Charles the afore- said Duke of Lorriane. " By the which marriage the line of Charles the Great " Was re-united to the crown of France, "So that, as clear as is the summer's sun, "King Pepin's title and Hugh Capet's crown claim, "King Lewes his satisfaction,- all appear " To hold in right and title of the female. "So do the Kings of France unto this day ; "Howbeit they would hold up this Salique law, "To bar your highness claim- ing from the female, " And rather choose to hide them in a net " Than amply to irabare their crooked titles "Usurp'd from you and your progenitors." (2) In comparing these authors, we find that Shakespeare's 'exposition is to all intents and purposes, merely a para- phrase, in meter, of Holinshed, and that Shakespeare was so faithful in copying Holinshed that he even repro- duced his errors. It will be observed that they both fix the time at 421 years after the death of Pharamond : they both agree that Pharamond died at 426, and that Charles the Great subdued the Saxons in 805; this, how- ever, figures out 379 years after the death of Pharamond, instead of 421 years. It is obvious that the error (1} Holinshed "Chronicle." (2) "King Henry V.", Act I., Scene '2. 46 occurred in transposing figures : in setting the amounts down to make the subtraction, i.e., the first figure of the- 805 and the two last figures of the 426 were set down,, making 826 ; then the first figure of the 426 and the last two figures of the 805 were set down, making 405 ; which taken from the 826 would make 421, the number arrived at, when, as a matter of fact, it should have been 379. Moreover, they both call Hugh Capet's heir King Lewes the tenth, whereas, he was, in fact, King Lewes the ninth. If any evidence further than the similarity in language is needed to show that Shakespeare copied the passage from Holinshed conclusive proof is shown by the fact that it is inconceivable that two authors could have made the same errors in calculating the time above referred to. Notwithstanding this fact that the author of " King Henry the Fifth " copied his exposition of the Salic Law from Holinshed and is in no manner entitled to credit for the arguments therein, this is one of the often quoted passages to prove Shakespeare's profound knowledge of jurisprudence. It illustrates how prone the admirers of his legal acquirements are to accept blindly everything in his plays as emanating from his own brain, instead of critically examining the sources from which he copied his legal material. His literary critics have not been guilty of quite such gross negligence, as they have fairly well traced the sources of his plots and found them,, likewise, largely borrowed. In passing on we might also- note that HOLINSHED SAYS : SHAKESPEARE SAYS : "The Archbishop further "For in the book of Numbers alleged out of the booke of is it writ, numbers this saieing : when a When a man dies, let the in- man dieth without a soune let heritance the inheritance descend to his Descend unto the daughter." (2}> daughter." (1) (1) Holinshed Chronicle." (2) Shakespeare's " King Henry V.' 47 to show that Shakespeare also appropriated from Holins* hed his exposition of the Levitical Law, often quoted in support of the theory of his biblical knowledge and legal training. Holinshed's and Hall's Chronicles are the source from which Shakespeare obtained the plots and technical legal language and situations in all his English historical plays, paraphrasing the texts of these authors and often literally copying their language, and especially their legal terms, as the following shows : SHAKESPEARE. 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 employ 'd. 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." (1) It will be noted that Shakespeare copied Holinshed so accurately in writing the foregoing, that he even repro- duced Holinshed's double plurals in " letters-patents. '* Other than this, there is nothing so striking as to call for special comment, except the fact that Shakespeare, in following Holinshed, used the legal term " distrained' 7 in a fairly correct sense, in contradistinction to his incorrect use of the word in " Here's Beaufort, that regards nor God, nor King, " Hath here distrain'd the Tower to his use." (2) The definition of a distraint is " the act of taking movable property out of the possession of a wrong-doer, (1) Shakespeare's "King Richard II.," Act II., Scene 3. (2) "King Henry VI.," part 1, Act I., Scene 3. 48 to compel the performance of an obligation, or to procure satisfaction for a wrong committed, like a distress for tent." (1) From this definition it will be seen that distrained is not the proper legal term to use to convey the idea of forcibly taking possession of the Tower and holding it, which is the meaning evidently intended in this case. I'his erroneous use of the term was doubtless original with Shakespeare, while the correct use of the term was copied from Holinshed. It is pertinent to this topic to note that when law terms are correctly used in their legal sense in Shakespeare's plays, it can usually be shown that he copied them substantially and often literally, from Holinshed, Hall and other sources, and that when he uses them erroneously or not in their legal sense, they are not traceable to any other source than the poet's imagination ; which is a potent argument, if not a positive proof, that Shakespeare had no special appreciation of the legal significance of many of the legal terms he made use of in his plays, and that the plays could not have been written by a member of the legal profession. He used the term "dower" seventeen times in his works, but only once is it used to denote what the word legally means now, and then meant, and that is when he says : ** I must confess your offset is the best: " And, let your father make her the assurance, *' She is your own ; else, you must pardon me, " If you should die before him, where's her dower ?" (2) (1) " Blackstone's Commentaries," 6. (2) " The Taming of the Shrew," Act II., Scene 1. 49 The definition of " dower " was in Shakespeare's day : " The third part of all such freehold lands as her husband held at the time of affiancing, and of which he was seized in his demesne, is termed a woman's reasonable dower." (1) Another authority of the time says : " Dower was the woman's life interest in the lands of which her husband died seized for her and her children's nutri- ment and support." (2) Other authorities (3) of the period give substantially the same definition. In many instances Shakespeare used the word " dower" where he should have used the word " dowry " or " dos," which meant that which was given to a female at her marriage usually by her father, but might be given her by any one. Shakespeare seems to have had no appreciation of the legal distinction between the two terms. It is not necessary to quote the whole sixteen instances where he has used the word " dower " in the wrong legal sense. A few examples should suffice to show his lack of appreciation of its legal significance. " We have this hour a constant will to publish ** Our daughters' several dowers, that future strife *' May be prevented now." (4) This was a gift by King Lear of his Kingdom, which he divided among his three daughters, and was therefore their several dowries and not their dowers as Shakespeare erroneously expresses it. ** Doubt not, but Heaven " Hath brought me up to be your daughter's dower " As it hath fated her to be my motive " And helper to a husband." (5) (1) (2) (3) (4) (5) Glanville," Book VI., p. 113. Littleton," Vol. II., p. 49. Bracton," King Lear," Act I., Scene 1. All's Well that Ends Well," Act IV., Scene 4. 50 Diana, the daughter, had no husband, dead or alive, and, therefore, could have no dower rights in anything, and least of all in Helena, Dowry should have been used, for in a prior scene Helena says to Diana's mother : " After this, " To marry her, I'll add three thousand crowns " To what is past already." (1) This clearly shows that Helena proposed to give Diana a dowry at her marriage if she would consent to carry out the conspiracy which Helena proposed, and, there- fore, it could not be, by any stretch of imagination, considered as a dower right, for in such use of the word dower the effect would be equivalent to Helena being metamorphosized into the life interest of Diana in the lands of which her husband died seized which, of course, would be a legal reductio ad absurdum Shake- speare evidently intended that Helena should give Diana a dowry, but did not understand the legal distinction between the two terms, and used the wrong legal term in this instance as in other cases throughout his works where he uses the two words interchangeably without reference to their legal significance. The legal meaning of 'tnoiety is " one of two equa* parts," (2) but Shakespeare frequently uses the word in the loose sense of meaning some other part than one half. '* Methinks my moiety, north from Burton here, " In quantity equals not one of yours." (3) (1) ' All's Well that Ends Well," Act III., Scene 7. (2) " Littleton Section," 291. (3) " King Henry IV.," Part I., Act III., Scene 1. 51 Here the division of the territory was to be in three gparts, while " On me, whose all not equals Edward's moiety," (1) might mean one half, or any other undeterminable part of the King. In Slade's Case, (2) in the 44th year of Queen Elizabeth, it was first decided that an action on the case -would lie for debt, or for causes arising ex contractu as -distinguished from causes arising ex delicto : yet nine years before this right of action was known in England .Shakespeare wrote : 11 1 do not know the matter ; he is 'rested on the case." (3) In seeking the grounds for this arrest we find it in the preceding scene, (4) and it appears to be an action for debt arising ex contractu. Such an action was unknown in English law at the time Shakespeare wrote this play in 1593, according to accepted authorities. (5) Moreover, -from this scene, it appears that the arrest was made without any original writ, or mesne process, by oral instruction of the creditor to the officer : 1 ' Here is thy fee; arrest him officer." (6) This could not be done without a capias ad respon- dendem, which would be issued only on causes arising learning : " My lips are no common, though several they be." (2) and "What's here? " (Reads) " 'Gainst the " Duke of Suffolk for enclosing the commons of Melford." (3)< In every community in England, under the feudal' system, certain lands were set apart from that held indi- vidually, for the common use of the peasants. The encroachment of the Lord of the Manor on these commons- and the disposition of the landlord to enclose them away from common use and appropriate them as the private property of the landlords, has, from feudal times down almost to our present day, been a source of serious dis- putes. The respective rights of the Lord of the Manor and the tenants were, in the time of Shakespeare, quite well known to the man of average intelligence, and therefore required no technical knowledge of the law on (1) Lord Campbell: " Shakespeare's Legal Acquirements," 46.. (2) "Love's Labour's Lost,' Act II., Scene 1. (3) "King Henry VI.," Part II., Act I., Scene 3. 53 the subject to enable the author to make use of the language he has given us on the subject of lands in -common and severalty Besides " My lips are no common, though several they be " (1) is sheer nonsense, because if the lady's lips were held in severalty they could not, as a matter of course, be held .in common. Had Shakespeare used the word " but " instead of " though " in the foregoing line, it would have fulfilled equally well the dramatic and metrical require- ments, and made the speech legally intelligible. More- over, if we are to accept the identity of Shakespeare the author with Shakespeare of Stratford-upon-Avon, it .appears that the author had some personal experience "with the enclosing of Welcombe Commons, in which he seems to have especially interested himself. (2) Another -example of that which seems highly technical : "How now, a kiss in fee farm?" (3) At the present time the term "fee farm " appears to the layman very technical, notwithstanding that the word " fee," when applied to right in lands, is now well known to all classes. In Shakespeare's day the term " fee farm " was quite well known to the person of aver- age intelligence, because it was a very common way of holding land. The definition of the term at the time the -author makes use of it was as follows : 4 * Fee farm is when a tenant holds of his lord in fee simple, paying to him the value of half of the one third, fourth, or other part of the land by the year.'* (4) (1) " Love's Labour's Lost," Act II., Scene 1. (2) " Enclosing Welcombe Common." (3) " Troilusand Cressida," Act III., Scene 2. <4) "Les Termes de la Ley," p. 220. 54 From this definition it will be seen that no special technical knowledge of law was necessary to use th& term, especially when so much land, especially in rural districts, was held in this manner. But it requires some- ingenuity to account for the use of the word in its legal sense when applied to a kiss. Inasmuch as fee simple signified a title in perpetuity, a kiss in fee farm would necessarily mean a kiss in perpetuity, subject to certain* annual payment by the tenant to his lord arising out of the enjoyment of the fee. Modesty forbids us to pursue the analysis of the meaning to its logical conclusion.. Besides, it is not probable that Shakespeare ever intended any ulterior significance in the use of the term. It is more than likely that he confused the meanings of fee- simple and fee farm. In any event, using the term as he did shows that he had no appreciation of its technical legal significance, even as well known as it then was to- all classes. Commentators are fond of citing Shakespeare's many allusions to the legal word " indenture " to prove his technical knowledge of law terms. It is true that he^ sometimes uses the term in its technical legal sense, but this can be accounted for without attributing to his use of the word any technical knowledge of its legal significance beyond that of any well informed man of letters of his day. It was then a commonly used legal document, as well known as an ordinary contract is known to-day. In fact it was an ordinary written- contract, essentially differing from a modern writteni contract by having the same matter written twice or more- on the same sheet leaving a space between each written, matter, then each part was detached from the other by 55 tearing or cutting, or indenting through the vacant space, and a part given to each of the contracting parties. The fact that the indented line of one matched that of another was proof of the genuineness of the document, and this indenting was then actually necessary to constitute an indenture, and was a well-known document in common use. While Shakespeare uses the word some- times correctly, as we have said, sometimes he uses it in such a way as to negative any argument in favour of his having any special appreciation of its legal significance, as the following will illustrate : " For if a King bid a man be a villain, he's bound " By the indenture of his oath to be one." (1) An oath of allegiance to a sovereign was never in the form of an indenture, and there was no oath attaching to an indenture, so Shakespeare has here used the word erroneously, unless we conclude that by indenture he simply meant the zigzag stability of the oath in question, but, in the latter interpretation the expression loses all legal significance. " *Tis semper idem, for absque hoc nihil est ; 11 'Tis all in very part." (2) Shakespeare's use of absque hoc was probably not intended to be used in any legal sense whatever. As it is put into the mouth of a comedian, it was more likely intended for nonsense. It is the only time Shakespeare attempts to use the term. He seems to have a very vague idea of jointure in his- loose employment of the idea in " Therefore our sometime sister, now our queen, " The imperial jointress of this warlike state." (3) (1) " Pericles, Prince of Tyre," Act I., Scene 3. (2) " King Henry IV.," Part II., Act V., Scene 5. (3) "Hamlet, Prince of Denmark," Act I., Scene 2. 56 The legal definition of jointress, according to the authority (1) of the day, was a woman whose husband had settled a life estate upon her should she survive him, as a means of barring her dower rights. As the Queen could have t no dower rights in the Kingdom, the term jointress is misused in a legal sense. Another legal term which Shakespeare uses in a very loose legal sense is " testament " : " But there's a parchment, with the seal of Gsesar ; " I found it in his closet ; 'tis his will ; 11 Let but the commons hear this testament." ****** " Here is the will, and under Caesar's seal. *' To every Roman citizen he gives, " To every several man, seventy-five drachmas." ****** 14 Moreover, he hath left you all his walks, " His private harbours, and new-planted orchards, " On this side Tyber ; he hath left them you, " And to your heirs for ever, common pleasures, 41 To walk abroad, and recreate yourselves." (2) It may be interesting to note that wills, under the Common Law of England, did not need to be under seal ; while, under the Eoman Law in the time of Caesar six seals were necessary in addition to that of Caesar, (3) viz., five witnesses and the libripens, unless it were a military will (or testament in procinctu) which had fallen into disuse, (4) likewise the form of will recorded in the Comitia Calata in any event neither of these forms was required to be under seal. Moreover, Shakespeare does not use the word " heirs " in a legal sense, for an heir (1) " Les Termes de la Ley," p. 472. (2) "Julius Caesar," Act III., Scene 2. (3) "Gaius" (Poste), p. 216. (4) H. J. Robey : "Roman Private Law in the time of Cicero," p. 176 ; " Gaius " (Poste), p. 216. 57 under the Eoman Law was a universal successor to the entire property and personalty of the testator, (1) while, under the Common Law of England, public bodies do not, legally speaking, have heirs, but successors. It is, therefore, an erroneous use of the term from a legal point of view. And again, according to authorities (2) on the subject lands could not be given by testament ; it must be by will ; only personal property could be given by testament ; yet Shakespeare says : " For all the temporal lands, which men devout " By testament have given to the Church, ' ' Would they strip from us. " (3 ) This shows an extremely loose use of the term ; such use that one with any knowledge of legal phraseology would not have made. " Mine eye and heart are at a mortal war, 1 ' How to divide the conquest of my sight ; 41 Mine eye, my heart, thy picture's sight would bar, " Mine heart, mine eye, the freedom of that right. " My heart doth plead that thou in him dost lie *' (A closet never pierced by crystal eyes), 41 But the defendant doth that plea deny, ** And says of him thy fair appearance lies. " To 'cide this title is impannelled " A quest of thoughts, all tenants to the heart ; " And by their verdict is detirmined 14 The clear eye's moiety and the dear heart's part : " And thus ; mine eye's due is thine outward part, " And mine heart's right thine inward love of heart." (4) This is in effect an action before a jury to try title to a lady, with the gentleman's heart as plaintiff and his (1) " Gaii Institutionum Juris Civilis Commentarii Quattnor " (Poste), 215. (2) "IV. Burns' Ecclesiastical Law," p. 44. (3) "King Henry V.," Act I., Scene 1. (4) Sonnets XL VI. 58 eye as defendant. In this action, curiously enough, both- plaintiff and the defendant claim not only an equitable- title but also actual possession. Neither of the litigants- complains of a disseisin. The plaintiffs declaration,, which he calls a plea, claims that : " My heart doth plead that thou in him dost lie." (1) Thus claiming not only title, but possession as well. To this the defendant answers, saying : " But the defendant doth that plea deny." (1) Thus entering a general denial of the plaintiff's declara- tion, and then goes on : " And says of him thy fair appearance lies." (1) Thus claiming not only title, but possession as well in himself. To decide this issue a jury is empanelled,, being : " A quest of thoughts, all tenants to the heart." (1) Here we are treated to the extraordinary procedure of drawing the jury from the tenants of the plaintiff, from whom they derived their titles and with whom they were all parties in interest. Needless to say that such a procedure was a travesty on justice. However, the jurymen seemed to have duly qualified, notwithstanding their apparent bias, and rendered a verdict in the case,, apportioning the lady between the litigants as follows : "Mine eye's due is thine outward part" (1) for the defendant and "My heart's right thine inward love of heart" (1) for the plaintiff ; being an award of exactly what each claimed in the beginning. We are not told by (1) Sonnets XLVI. 59 Shakespeare if in this absurd trial the Court ordered" each to pay his own bill of costs. " Sir, for a quart d'eau he will sell the fee-simple of his salvation, the inheritance of it, and cut the entail from all remainders, and a perpetual succession for it perpetually." (1) It is difficult to see where any technical knowledge of the law would assist one in solving Shakespeare's meaning of the above passage. In fact, one writer has gone so far as to say that a knowledge of law would be more of a hindrance than a help. The following passage has been cited (2) to show Shakespeare's intimate knowledge of the law of real property, and this commentator goes on to say that Shakespeare exhibits a knowledge not generally possessed, when he says : * Of what quality was your love, then? ' * Like a fair house built on another man's ground : " So that I have lost my edifice by mistaking the place "I erected it." (3) This is a well-known principle of law, known to-day to the average business man of intelligence, and was likewise well known in Shakespeare's days ; therefore, it required no great amount of legal knowledge to have written this passage. However, commentators (4) have seen great legal acumen in this passage, and one authority cites the case of the First Parish in Sudbury v. Jones (5) Jones in support of this view. This case, (1) All's Well that Ends Well," Act IV., Scene 3. (2) Lord Campbell : " Shakespeare's Legal Acquirements," 39.- (3) " Merry Wives of Windsor," Act II., Scene 2. (4) 26 Law Reporter, 2. (5) 3 Cosh, 184. 60 however, does not apply, for the reason that in this case the question at issue was whether the First Parish in Sudbury owned the land upon which had been built a school house, or whether the Town of Sudbury owned the land. The Court decided that the land belonged to the First Parish, and, therefore the Town of Sudbury lost the building which it had placed upon the land. Much ingenuity has also been shown in commenting on Shakespeare's apparent knowledge of Ecclesiastical Law in the grave-digger's scene in Hamlet. But, when we consider the source from which he derived the material for this scene, it is apparent that no special technical learning in the law was necessary to produce this scene. It is based upon the case of Hales v. Petit, reported in Plowden, and was a case which created a great deal of comment at the time on account of the quibbles and fine spun theories of the lawyers and the extraordinary opinion of the Court, which was the subject of con- siderable ridicule, and undoubtedly prompted Shakespeare to write this scene. CONCLUSION. Yet, notwithstanding all the bad law and inaccurate- law terms which have been herein cited, commentators. still persist that Shakespeare must have had a technical legal education. One commentator, in charging a jury trying bhe issue as to whether Shakespeare was ever a clerk in an attorney's office, says : " I should hold that there is evidence to go to the jury in support of t he- affirmative, and I should tell the twelve gentlemen 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," (1) and the same commentator goes on to say, that " He (Shakespeare) is uniformly right in his law and his use of legal phraseology, which no mere quickness of intuition can account for." (2) And many other commentators have made equally broad assertions as to Shakespeare's technical knowledge of the law. It has been attempted in the foregoing paper to show, as far as opportunity would permit, Shakespeare's won- derful versatility in various branches of knowledge. In medicine and surgery, it was seen, he exhibited a marked degree of erudition in this art and science ; in nautical terms his works equally abound, and are used usually in a very technical sense; in theology and, likewise, in horticulture he appears to exhibit profound knowledge ; but the subject in which we are particularly interested in considering, from a technical point of view, is his use of legal terms and phraseology, together with his interpre- tation of these terms from a legal point of view. (1) Lord Campbell: "Shakespeare's Legal Acquirements," 9. (2) Lord Campbell : " Lives of the Chief Justices of England,"" 213 N. 2. 62 From what has preceded, it will be observed that Shakespeare sometimes uses law terms in their technical legal sense, but more often does he use them without any special reference to their legal significance. When he does use legal terms in their proper sense, the source from which he obtains them can usually be traced to other authors, such as Holinshed's and Hall's 'Chronicles, Plutarch's Lives and other sources ; and in the majority of cases where he uses such terms erroneously, it is generally impossible to discover from what source he received his material, and, therefore, it is to be concluded that they were original with him, or that he picked them up in a desultory way from personal observation and contact with members of the legal pro- fession. It is not surprising that a man of Shakespeare's .genius for gathering and assimilating knowledge would acquire a knowledge of the law sufficient for him to make the inaccurate use of such terms as are found in his works without any technical study of the subject. It seems that we get a more reasonable and logical explanation from the fact that he was a man of marvellous genius and of minute observation of the affairs of life, with an ability to assimilate its facts and conditions from a large .acquaintance with men learned in all subjects with which he deals, together with vast and diversified reading, than to conclude, because we find a large amount of apparently technical language in his work, that he had made a pro- found and technical study of these subjects with which he appears, at least on the surface, to be thoroughly familiar. Moreover, the sources from which he derived much ^of his material is still a mooted question. It is -certain that a number of plays with similar titles to some 63 "" : *' :. : :/:*':." *\ : :;. of those used by Shakespeare-, existed : p**icft* tV-the c\3rh*- position and production of his works, and it is quite probable that, when he went to the Globe Theatre and assumed its management and proceeded to write plays, -that he found there a number of manuscripts, some of which may have already been performed, and whose titles have come down to us, but the manuscripts of which have been either destroyed or have not come down to us. It seems likely that Shakespeare may have got much of his material from such a source, and that many -of the inaccuracies in his plays may .have been simply copied from these old manuscripts in the same manner that has been heretofore pointed out with reference to :his faithful copying of inaccuracies in the Salic Law which .he found in Holinshed's Chronicles. Another source from which Shakespeare probably -derived a considerable amount of his legal knowledge was through his faculty for absorbing all matters of moment. Prior to the reign of Henry VIII. the greater part of learning was confined to the keeping of the monasteries, and when they were despoiled under the reign of that monarch, their priests were scattered over the length and breadth of the land, and many of them naturally gravitated to the metropolis as the centre of population. These monks being thrown upon their own resources naturally tried to earn their own living, and so turned to teaching and the diffusion of knowledge, which, theretofore, had been kept within their own possession. About the time Shakespeare is credited with coming up to London, this diffusion of knowledge was at its zenith, and many legal treatises were first published among which may be mentioned Plowden's Commentaries or Keports, Marwood's Forest Law in 1568, Compton's 64 Office and Authority -of a- Justice of the Peace in Eastall's Termes de la Lay in 1572, Eastall's Entries in 1596, Brooke's Abridgment of the Law in 1568,Poulton's Abstract of Penal Statute in 1572, and about this time Sir Edward Coke began to give his legal knowledge to the- world. Naturally such an array of legal lore, together with the vast number of students at the Inns of Court, had its influence on a great brain like that of Shakespeare,, and undoubtedly he did mix freely with lawyers and students, thereby absorbing terms which was their common parlance. We have seen that it is not only in the subject of law, but in nearly all the other arts and sciences, that Shakespeare is equally at home ; and he himself, within his works, seems to have given us a reasonable clue to the way in which he obtained the knowledge and information which he discloses to us in his works, when he wrote the following : " Hear him but reason in divinity, " And, all-admiring, with an inward wish 11 You would desire the King were made a prelate : " Hear him debate of commonwealth affairs, ' You would say it hath been all in all his study ; " List his discourse of war, and you shall hear " A fearful battle render'd you in music : ** Turn him to any cause of policy, " The Gordian knot of it he will unloose, " Familiar as his garter : that, when he speaks, " The air a charter 'd libertine, is still, * And the mute wonder lurketh in men's ears, * To seal his sweet and honey'd sentences ; 1 So that the art and practic part of life * Must be the mistress to his theoric : ' Which is a wonder how his grace should glean it, * Since his addiction was to courses vain, * His companions unletter'd, rude, and shallow, * His hours fill'd up with riots, banquets, sports, * And never noted in him any study, * Any retirement, any sequestration * From open haunts and popularity." 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