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SHAKESPEARE'S LAW 
 
SHAKESPEARE'S 
 LAW 
 
 BY 
 
 SIR GEORGE GREENWOOD 
 
 OF THE MIDDLE TEMPLE, 
 BARRISTER-AT-LAW 
 
 EDWIN VALENTINE MITCHELL 
 HARTFORD, CONNECTICUT 
 
 MCMXX 
 
FIRST EDITION, IQ2O 
 COPYRIGHT IN GREAT BRITAIN AND 
 THE UNITED STATES OF AMERICA 
 
 ADDENDA. 
 
 p. 1 8. " Statutes." Since the following pages were 
 in print, a writer in the Times Literary Supplement of 
 June 25, 1920, has brought to our notice an instructive 
 example of the use of this word, where it certainly does 
 not " import a legislative Act." The " Statutes " of 
 the Ewelme Almshouse (built before 1450) " run in the 
 names of William de la Pole, Duke of Suffolk, and Alice 
 his wife." But such use of the word was, and is, of 
 course, extremely common. 
 
 p. 27, 1. 26. " Let there be covenants drawn between 
 us," etc. In Boccaccio's story (The ninth Novel of the 
 second day of the Decameron) we read : " The two 
 persons concerned were so resolutely bent on their 
 purpose that all dissuasions were ineffectual, and an 
 Obligation in writing being drawn up, they both signed 
 and sealed it in the presence of their companions " (Mrs. 
 Lennox's translation). It will be seen how closely 
 Shakespeare follows his Italian model here. 
 
PLAYS REFERRED TO ON LEGAL 
 POINTS 
 
 PAGE 
 
 LOVE'S LABOUR'S LOST . . . . .18 
 
 THE MERCHANT OF VENICE . . . .19 
 
 CYMBELINE ..... .27 
 
 ALL'S WELL THAT ENDS WELL . . . .28 
 
 THE MERRY WIVES OF WINDSOR ... 30 
 JULIUS CAESAR ....... 33 
 
 CORIOLANUS .34 
 
 RICHARD III 34 
 
 As You LIKE IT ...... 35 
 
 HENRY VIII .... .36 
 
 MEASURE FOR MEASURE 3!) 
 
 487632 
 
FOREWORD 
 
 WHEN this essay was completed it occurred to 
 me that it might, possibly, find a place in a 
 certain Legal Magazine, which shall be nameless. I 
 therefore wrote to a distinguished lawyer who had 
 for some years edited the Journal in question, and 
 with whom I happened to be acquainted, asking if I 
 might be permitted to submit my paper for his con- 
 sideration. He replied that he had recently resigned 
 the editorship, but that he had forwarded my letter 
 to the new editor, and subsequently that gentleman, 
 who was entirely unknown to me, was good enough to 
 write that he was " willing to consider " my article. 
 Thereupon I forwarded it to him, but he shortly 
 returned it to me saying that it was " unsuitable." 
 
 Now if he had stopped there I should, of course, 
 have had nothing further to say. An editor is master 
 of the situation, and if he decides to reject a proposed 
 contribution it is extremely foolish to quarrel with his 
 decision. Nor was I, in truth, greatly perturbed by 
 it. Unfortunately, however, this gentleman did not 
 stop there. He proceeded to lecture me, de haul en 
 bas, in a style which, speaking from a long experience, 
 I venture to say that editors are not in the habit of 
 employing in such a case. On the contrary, I believe, 
 and I sincerely hope, that this gentleman's editorial 
 methods are unique. As I have already said, he was 
 an entire stranger to me. I had never met him, nor 
 
 6 
 
FOREWORD 7 
 
 had I ever heard of him, and the Law List gave me 
 no information concerning him except that, judging 
 from the date of his call to the Bar, I gathered that 
 he is a very considerably younger man than I am. 
 And this is the style in which he thought it becoming 
 to address a septuagenarian member of his profession, 
 an entire stranger to him, who had, in an evil hour, 
 been induced to submit an essay for his editorial 
 consideration. He commenced by politely informing 
 me that my article contains " a couple of howlers " ! 
 Now if he imagined that he had discovered two mis- 
 takes in my essay, and had, with due courtesy, drawn 
 my attention to them, I should, if his criticism had 
 appeared to be just, have been grateful for his correc- 
 tion, and if he had been an intimate friend I should 
 not have taken any exception whatever to the familiar 
 epithet employed to designate them. But for this 
 stranger editor to write to me that I had been guilty 
 of " howlers " appeared to me to indicate that, what- 
 ever else he might be a judge of, he is not exactly 
 qualified to act as arbiter elegantiarum ; in fact, that 
 his manners are far from having that repose which 
 stamps the caste of Vere de Vere ! 
 
 And what were the " howlers " of which he asserted 
 I had been guilty ? Well, first, I state in my essay 
 (see p. 31) that " no lawyer needs to be told that 
 ' fines ' and ' recoveries ' were collusive actions." 
 But, says the editor of this Legal Periodical, " a fine 
 was not a collusive action." Here then is " howler " 
 number one ! 
 
 Now I should be quite content to leave this very 
 remarkable assertion viz., that " a fine was not a 
 collusive action " to any lawyer who has ever paid 
 attention to the old law relating to " fines " and 
 " recoveries." Moreover, it is quite unnecessary to 
 refer to well-known authorities with regard to it, for 
 I happen to have before me a very interesting pam- 
 phlet, entitled The Line of Least Resistance, by Mr. 
 
8 FOREWORD 
 
 Arthur Underbill, LL.D., Bencher of Lincoln's Inn, 
 and Senior Conveyancing Counsel to the Court, from 
 which I will quote but two sentences : " The Statute 
 Quia Emptores made freehold tenancies in fee-simple 
 ale able free from the rights of the vendor's heir, 
 although, curiously enough, subject to his widow's 
 right to dower. . . . This right was ultimately able 
 to be barred by a collusive action called a fine " (p. 11). 
 I do not think I need say more on this matter, though 
 quite possibly my omniscient editor will retort that 
 Mr. Arthur Underbill has been guilty of a " howler." 
 I hardly think, however, that even his self-sufficiency 
 will carry him quite so far as that. 1 
 
 As to " howler " number two, it was a mere matter 
 of misapprehension of my meaning, and I need not 
 now waste words upon it. But let us see what 
 follows. 
 
 Speaking not as a matter of opinion, but ex cathedra, 
 from his editorial chair, as though making an infallible 
 pronouncement, this pontifical lecturer tells me that 
 Shakespeare " wrote of law as a dramatist, and in 
 every one of the instances that can be quoted there 
 
 1 Amongst other authorities, I might mention the Ency- 
 clopaedia of the Laws of England, where " Fines " are described 
 as " collusive actions." In other places they are called 
 " fictitious " actions, as (e.g.) in Williams on the Law of 
 Real Property : " Fines were fictitious suits commenced and 
 then compromised by leave of the Court, whereby the lands 
 in question were acknowledged to be the right of one of the 
 parties" (12th Edn., p. 230). It is hardly necessary to say 
 that the word " collusive " does not necessarily connote 
 fraud, or deceit. As we read in Termes de la Ley, " Collusion 
 is where an action is brought against another by his own 
 agreement." If both plaintiff and defendant agree to bring 
 an action with a common object, that is a " collusive 
 action." As my editorial mentor himself admits, "Recov- 
 eries " were " collusive actions," but, like " fines," they 
 were recognized and approved methods of dealing with land 
 in certain cases, and no suggestion of fraud or deceit attached 
 to them. 
 
FOREWORD 9 
 
 is not a single case in which he has not misapplied the 
 technical expressions, or in which a lawyer would not 
 have omitted them " ! 
 
 This is really magnificent. The question of Shake- 
 speare's legal knowledge is thus settled for all time 
 by this gentleman's ipse dixlt. There is, in fact, no 
 question to be discussed. All the lawyers whose 
 opinions I have cited in the following essay, and who 
 in their time held high place in their profession, may 
 be dismissed as poor ignorant simpletons whose judg- 
 ment in this matter is not worth the paper it is written 
 on. We may, therefore, spare ourselves the trouble 
 of making any further inquiry as to our great poet's 
 knowledge of law. " I am Sir Oracle," says Mr. 
 Editor, and " when I speak let no dog bark " ! . The 
 only objection to this view of the case is that, so far 
 as I can ascertain, this gentleman speaks with no 
 authority except that which comes from self-asser- 
 tion. I cannot learn that he is a gentleman of any 
 particular distinction in his profession, or that he 
 possesses any qualifications which entitle him to 
 claim any particular value for his opinion. Let us 
 see how he comments on the words of Mrs. Page, in 
 the Merry Wives, to which Lord Campbell has drawn 
 attention, and which I have discussed at p. 30 of the 
 following paper. " If the devil have him not in fee- 
 simple, with fine and recovery," says the Merry Wife, 
 with reference to Falstaff, " he will never, I think, in 
 the way of waste attempt us again." Now listen to 
 the illuminating criticisms of the very learned lawyer 
 (soi-disant) who occupies the exalted position of 
 editor of a certain Legal Journal. Here it is. " The 
 devil could not have Falstaff in fee simple, but could 
 only have an estate pour autre vie. Again, as waste 
 could only be enjoyed by freehold tenants of a manor 
 by grant (actual or presumed), there would be a 
 suggestion to a lawyer that Ford and Page were 
 pimps. The analogy of a copyhold tenant's claim 
 
10 FOREWORD 
 
 to waste would be too far-fetched for a lawyer to 
 consider it for a moment." 
 
 Now I would beg the reader to refer once more to 
 the delightful passage in Shakespeare's play to which 
 all this refers, and then to ask himself whether in the 
 whole range of Shakespearean commentary he can 
 point out a more entirely futile and absurd pronounce- 
 ment, or one that shows such an entire lack of appre- 
 ciation of comedy, than this portentously pedantic 
 display of absurdly misapplied learning, if learning 
 indeed it be ! What the train of reasoning is that 
 would induce " a lawyer " (save the mark !) to dis- 
 cover in Mrs. Page's words " a suggestion that Ford 
 and Page were pimps," I thank Heaven though I 
 used to call myself " a lawyer " I have not the least 
 idea. 
 
 But, unfortunately, our legal lecturer descends to 
 still lower depths. I have pointed out in the follow- 
 ing essay (p. 28) that the critics who think they have 
 detected " bad law " in Shakespeare's play AWs Well 
 that Ends Well, are mistaken, because, although a 
 guardian was not entitled to insist that his ward 
 should marry a lady of inferior rank, as was Helena's 
 position with regard to Bertram, yet the King of 
 France was no ordinary guardian, seeing that he had 
 the power to raise the lady to a rank as high as that 
 of his ward, and had actually undertaken so to do. 
 Now hear the comment of my editorial mentor upon 
 this. " I must say," he writes, " that / do not 
 appreciate your suggestion that a king could, by enno- 
 bling a strumpet, make her a suitable match for his 
 ward " ! I commend this charming piece of legal 
 and literary criticism to all lovers of Shakespeare, 
 lawyers or laymen ; I commend it to all who have 
 ears to hear, heads to appreciate, and hearts capable 
 of righteous indignation. Helena, according to Cole- 
 ridge no mean critic is Shakespeare's " loveliest 
 creation." Concerning Helena Mrs. Jameson writes : 
 
FOREWORD 11 
 
 " There never was, perhaps, a more beautiful picture 
 of a woman's love . . . patient and hopeful, strong 
 in its own intensity, and sustained by its own fond 
 faith . . . the beauty of the character is made to 
 triumph over all." 
 
 Such is Helena to Coleridge and Mrs. Jameson. 
 Such I should have thought she would be to all men 
 and women sufficiently educated to read Shake- 
 speare's play, and who are possessed of wholesome 
 and decently constituted minds. But to him who 
 from his editorial chair sends me this unsolicited, this 
 j entirely gratuitous may I not say this extremely 
 I impertinent ? written harangue, Helena is " a strum- 
 vet" \ 
 
 Well, well. There I am content to leave it. Such 
 ire now, it seems, the self-constituted Judges who 
 )reside over the Courts of English Literature. I 
 mow, of course, and know only too well, that a 
 4 Great Taboo," as a recent writer has styled it, has 
 jeen established against those who venture to suggest 
 that, possibly, the name " Shake-Speare " was a 
 mask-name under which some great man, other than 
 ie who came from Stratford- on- A von, was able to 
 write while preserving his own anonymity. I know 
 ;hat the Highbrows of English Literature will not 
 ieign even to mention, still less to admit, any dis- 
 cussion of an hypothesis which is so shocking to their 
 render sensibilities ; I know that, as a distinguished 
 French scholar has said, " L'heterodoxie dans ce do- 
 maine a paru jusqu'a present aux maitres des univer- 
 sites et aux erudits, une opinion de mauvais gout, 
 ;e*meraire et malseante, dont la science patentee 
 n'avait pas a s'occuper, sauf pour la condamner." x 
 [ myself, although I yield to none in my admiration 
 Shakespeare's works, have been called a " Defamer 
 
 1 Sous le Masque de " William Shakespeare " ; by Abel 
 Lefranc, Professeur au College de France, Vol. I. p. 20. 
 
12 FOREWORD 
 
 of Shakespeare," because, after many years' thought 
 and study of the subject, I find I am constrained to 
 hold this " heterodox " opinion concerning the author- 
 ship of those works. But to write of one of Shake- 
 speare's most beautiful characters that she is "a 
 strumpet," that, of course, is not to " defame Shake- 
 speare," provided you are sound on the true Strat- 
 fordian Faith. And it is before such Judges that we 
 poor heretics have to be tried ! It is true that there 
 is nothing at all " heretical " in the following essay. 
 It might have been written by the most " orthodox " 
 of " Stratfordians." Aye, but my antecedents are, 
 of course, known. I come before the Court as a 
 suspect character. Nay, more, I am marked out as 
 a subject of the " Great Taboo " ! 
 
 Well, we must e'en bear it as best we may. Magna 
 est Veritas et praevalebit some day perhaps ! 
 
 G. G. 
 
SHAKESPEARE'S LAW 
 
 IN the year 1859, Lord Campbell, who in that year 
 became Lord Chancellor, having previously (in 
 1850) been Lord Chief Justice of the Queen's Bench, 1 
 published a book in the form of a letter to Mr. Payne 
 Collier, entitled Shakespeare's Legal Acquirements, in 
 which he contended that Shakespeare had " a deep 
 technical knowledge of the law," and an easy famili- 
 arity with " some of the most abstruse proceedings 
 in English jurisprudence^" With regard to the 
 poet's " judicial phrases and forensic allusions " he 
 writes : " I am amazed, not only by their number, 
 but by the accuracy and propriety with which they 
 are uniformly introduced." And on the question as 
 to the means by which Shakespeare could have ac- 
 quired all this legal knowledge, he expresses himself 
 as strongly inclining to the hypothesis that the dra- 
 matist had studied law in an attorney's office. 
 
 Lord Campbell's great experience as a lawyer, and 
 the high position which he held in the legal profes- 
 sion, naturally led to a very general acceptance of 
 his opinion on this matter of Shakespeare's know- 
 ledge of law, and that opinion has been too fre- 
 quently cited as a conclusive authority on the ques- 
 tion by writers who have not taken the trouble, or 
 
 1 We now speak of " The Lord Chief Justice of Eng- 
 land," but that title dates only from the year 1875, although 
 Coke had tried to assume it, and was informed, when he 
 was dismissed in the year of Shakespeare's death, that he 
 had incurred the displeasure of the King by so doing. 
 Upon this matter we read in the modern Encyclopaedia of 
 the Laws of England : " Shakespeare, ever accurate in his 
 legal terminology, styles Gascoigne, C. J., 'Lord Chief Justice 
 of the King's Bench,' in the dramatis pcrsonce of ' King 
 Henry IV. Part 2.' ' (Italics mine.) 
 
 13 
 
14 SHAKESPEARE'S LAW 
 
 who have not been competent, to examine the argu- 
 ments upon which it is founded. 
 
 Now Lord Campbell had been anticipated in this 
 inquiry by a learned barrister of Gray's Inn, to wit 
 Mr. William Lowes Rushton, who in August, 1858, a 
 year before the issue of Lord Campbell's book, had 
 published a little work called Shakespeare a Lawyer, 
 in which he also adduced arguments well worthy of 
 consideration in support of the contention that 
 Shakespeare had an accurate knowledge of law, and 
 this author subsequently complained, and it appears 
 not without justice, that the Lord Chancellor had 
 made use of his work, but had omitted to make 
 reference to the source upon which he had drawn. 
 "It is well known," wrote a writer in one of the 
 newspapers of that day, 1 "that Lord Campbell, some 
 time afterwards, published a similar work, availing 
 himself, without acknowledgment, of Mr. Rushton's 
 labours, as the Examiner conclusively pointed out." 
 
 Mr. Rushton's book has become scarce, and it is 
 now very difficult to obtain a copy of it, but he sub- 
 sequently published two little brochures on the same 
 subject, viz. : Shakespeare's Testamentary Language 
 (1869) and Shakespeare's Legal Maxims (1907), both 
 of which, but especially the former, will be found 
 well worthy of study. In both he takes note that 
 Lord Campbell himself, in the work mentioned, has 
 made several mistakes in law, and he makes use of 
 that fact to warn the reader of the danger there is 
 in concluding that Shakespeare was no lawyer be- 
 cause, it may be, he also has been guilty of some 
 mistakes of the same kind. For if that argument 
 
 1 The Liverpool Albion. Mr. Rushton was closely con- 
 nected with Liverpool. We may notice that Lord Campbell's 
 letter to Payne Collier bears date, in his book, September 15, 
 1858, though the book itself was not published till 1859. 
 Mr. Rushton's book was published in the first week of 
 August, 1858. 
 
SHAKESPEARE'S LAW 15 
 
 is to prevail it can be equally well proved that Lord 
 Campbell himself was no lawyer, or, to use Sir Sidney 
 Lee's expression (infra p. 17), had had no " technical 
 experience." Quod est absurdum. 1 But, asks Mr. 
 Rushton, " Is there a barrister or a solicitor in large 
 practice, or a judge on the bench, who can say with 
 truth, ' I never made a mistake in law ' ? " 
 
 The question then is, Does Shakespeare, although, 
 possibly, he may be found to be at fault here and 
 there, show by his plays and poems such a general 
 knowledge of law, and legal principles, and such an 
 exceptional familiarity with legal procedure, and the 
 ways and habits of lawyers, as force us to conclude 
 that either he was himself a lawyer, or had, at any 
 Irate, received, somehow and somewhere, a sound 
 *al education ? 
 
 And here, before passing on, it may be well to 
 lention that long before the days of Rushton and 
 ampbell, one of the acutest, most learned, and most 
 istinguished of Shakespearean critics, Malone to wit, 
 imself a lawyer of no mean authority, had written 
 f Shakespeare : " His knowledge and application of 
 gal terms seems to me not merely such as might be 
 cquired by the casual observation of even his all- 
 omprehending mind ; it has the appearance of 
 echnical skill." 2 
 
 Another lawyer, and well-known Shakespearean, 
 (ichard Grant White, has written : " No dramatist of 
 tie time, not even Beaumont, who was a younger son 
 f a judge of the Common Pleas, and who, after 
 udying in the Inns of Court, abandoned law for the 
 .rama, used legal phrases with Shakespeare's readi- 
 .ess and exactness . . . legal phrases flow from his pen 
 s part of his vocabulary and parcel of his thought." 
 
 I would recommend those who are inclined to sneer at 
 iord Campbell's authority as a lawyer to read Mr. G. P. 
 (acdonell's article on him in the Diet. Nat. Biog. 
 2 BosweWs Malone (1821), Vol. ii. p. 108. 
 
16 SHAKESPEARE'S LAW 
 
 Yet another learned lawyer, the late Mr. E. T, 
 Castle, K.C., has borne testimony to the accuracy oi 
 Shakespeare's legal knowledge, and lays stress on his 
 " familiarity with the habits and thoughts of counsel 
 learned in the law." 
 
 I might further cite the opinions of Lord Penzance, 
 Judge Webb, and Judge Holmes of the Supreme Court 
 of the United States, but as these were supporters oj 
 the " Baconian " theory it may perhaps be better nolj 
 to call them as witnesses in the case. 1 
 
 Turning now to lay writers, it is interesting to note! 
 that that highly distinguished critic, George Steevensj 
 who, as Sir Sidney Lee writes, " made invaluablei 
 contributions to Shakespearean study," and whosd 
 edition of the poet, published in 1773, was " lonj 
 regarded as the standard version," expressed himsell 
 as in agreement with Malone's estimate of ShakeJ 
 speare's legal knowledge ; and one may add thati 
 Charles and Mary Cowden Clarke, whose names will 
 ever be remembered in the history of Shakespearean 
 bibliography, spoke of " the marvellous intimacy! 
 which he displays with legal terms, his frequent 
 adoption of them in illustration, and his curiousl 
 technical knowledge of their form and force." Pro! 
 fessor Churton Collins, also, has written of Shake-l 
 speare's " minute and undeviating accuracy in ail 
 subject where no layman who has indulged in suchl 
 copious and ostentatious display of legal technicalities 
 has ever yet succeeded in keeping himself frorJ 
 tripping." 
 
 If then appeal is to be made to authority on this! 
 matter, one could point to a formidable body ol 
 
 1 Mr. Castle was not altogether " orthodox." He enter 
 tained the curious idea that Shakespeare and Bacon colla 
 borated in what he calls " the Legal Plays." See Shakeapeam 
 Bacon, Jonson, and Greene, by E. T. Castle, K.C. Lore 
 Penzance's legal competence no one, I apprehend, will tx 
 found to question. 
 
SHAKESPEARE'S LAW 17 
 
 opinion in support of the proposition that the works 
 }f Shakespeare prove that their author must have 
 been exceptionally well equipped with legal know- 
 .edge ; and, in accordance therewith, we find Sir 
 Sidney Lee, in the earlier editions of A Life of William 
 Shakespeare, making mention of " Shakespeare's 
 accurate use of legal terms which deserves all the 
 [(attention that has been paid it." 1 -Since those 
 Beditions were published, however, it appears that Sir 
 [Sidney has changed his views on the subject, for he 
 Know writes : " The poet's legal knowledge is a mingled 
 skein of accuracy and inaccuracy, and the errors are 
 bar too numerous and important to justify on sober 
 inquiry the plea of technical experience [sic]. 2 No 
 [{judicious reader of The Merchant of Venice or Measure 
 for Measure can fail to detect a radical unsoundness 
 in Shakespeare's interpretation alike of elementary 
 legal principles and of legal procedure." And in a 
 note, after expressing his opinion that Lord Campbell 
 *' greatly exaggerated Shakespeare's legal know- 
 ledge," he refers us to Notes on the Bacon Shakespeare 
 Question by Charles Allen (Boston, 1900), as showing 
 " the true state of the case," and more particularly to 
 .eh. vii. of that work, on " Bad Law in Shakespeare," 
 which he informs the reader " is especially note- 
 worthy." 3 
 
 Now were I to attempt to make a survey of Shake- 
 speare's plays and poems with the object of testing 
 the truth of Sir Sidney Lee's assertion that the great 
 
 1 I quote from the Illustrated Library Edition (1899)' 
 p. 30. 
 
 2 How " errors " could possibly " justify a plea of experi- 
 ence " is beyond the limit of my very ordinary intelligence. 
 
 8 A Life of Shakespeare (1915), p. 43. He further refers 
 to Mr. J. M. Robertson's Baconian Heresy (1913), but I have 
 said all I desire to say about that work in my booklet, 
 Shakespeare's Law and Latin (Watts & Co., 1916). Mr. 
 Robertson, it will be remembered, is not a lawyer, nor, for 
 that matter, is Sir Sidney Lee. 
 
 B 
 
18 SHAKESPEARE'S LAW 
 
 poet and dramatist was " radically unsound in his! 
 interpretation alike of elementary legal principles ancH 
 of legal procedure " a, fairly sweeping statement Ij 
 should require to add yet another volume to thel 
 mountainous mass of " Shakespeare " literature, inl 
 order to do justice to such a far-reaching and com-1 
 prehensive subject. Happily, however, Sir Sidneyj 
 has himself indicated a shorter and easier method on 
 investigation. He has referred to Mr. Charles Allen's*! 
 chapter on " Bad Law in Shakespeare " as being! 
 " especially noteworthy." I propose, therefore, tog 
 examine the evidence of our great poet's ignorance ofl 
 legal principles and procedure so conveniently set! 
 before us by this American writer, 1 and vouched for] 
 by Sir Sidney Lee, only premising that I decline tol 
 accept as examples of Shakespeare's alleged " badjj 
 law " instances taken from plays which are, in whole 
 or in part, of very doubtful authorship, such as 
 Henry VI (all three parts), Titus Andronicus, Timon' 
 of Athens, and some others. We must confine our-] 
 selves to admittedly " Shakespearean " plays. 
 
 Here, then, is a " noteworthy " example of Shake- j 
 speare's " bad law " according to our legal mentor 
 Mr. Charles Allen (p. 128). In Love's Labour's Lost the 
 King addresses his three friends and companions in 
 the following words : 
 
 You three, Biron, Dumain, and Longaville, 
 Have sworn for three years' term to live with me 
 My fellow- scholars, and to keep those statutes 
 That are recorded in this schedule here. 
 
 What says Mr. Charles Allen as to this ? "A statute 
 imports a legislative act ; or, if used here for ' edict,' 
 even an edict stands of its own force, and does not 
 require an oath to support it in order to make it 
 binding. . . . The word seems to be used inaccu- 
 rately for vows or resolves." 
 
 1 Mr. Charles Allen, now I believe deceased, was a lawyer 
 of some distinction, who practised latterly at Boston. 
 
SHAKESPEARE'S LAW 19 
 
 Now this criticism really appears to me if one may 
 be allowed to express an honest opinion in plain 
 language to exhibit such a deficiency both of know- 
 ledge and common sense that, in my judgment, it is 
 sufficient of itself to put Mr. Allen's book, so far as it 
 pretends to be an exponent of law and legal prin- 
 ciples, altogether out of court. " A statute imports 
 a legislative act " ! Mr. Allen, then, had never heard 
 of " Statutes Merchant " and " Statutes Staple." 
 But we may put these aside. He had never heard of 
 the " statutes " of a School or College, or of a Cathe- 
 dral Chapter ! He had never heard of scholars, 
 students, disciples, or teachers being called upon to 
 make oath to keep such statutes ! And this is set 
 before us as an example of Shakespeare's " bad law " 
 save the mark ! It is, really, a very melancholy 
 example of the teacher's incompetence to teach. 
 
 Let us now see what our legal mentor has to tell us 
 about The Merchant of Venice, one of the two plays in 
 which, if we fail to recognize Shakespeare's ignorance 
 both of " elementary legal principles and of legal 
 procedure," we must, according to Sir Sidney Lee, be 
 content to forfeit all claim to be called " judicious " 
 readers. Nay, another Transatlantic lawyer, Mr. 
 Devecmon, of the Maryland Bar, has informed us that 
 in this play the bard of all ages " not only manifests 
 his lack of knowledge of the technique of the legal 
 profession, he shows a profound ignorance of law and 
 of the fundamental principles of justice " ! x I am not 
 sure, however, whether Sir Sidney would be altogether 
 ready to subscribe to this astonishing pronouncement. 
 To say that Shakespeare was ignorant of the " funda- 
 mental principles of justice " is, perhaps, going rather 
 farther than even he is prepared to go. 
 
 But let us hear Mr. Charles Allen on the subject. 
 
 1 " In re Shakespeare's Legal Acquirements," by William 
 C. Devecmon. Publications of the New York Shakespeare 
 Society, No. 12. London, Kegan Paul, 1899. (My italics). 
 
20 SHAKESPEARE'S LAW 
 
 First of all, adverting to the fact that " by the will of I 
 Portia's father, all her suitors must submit to the test I 
 of the caskets, and if unsuccessful must for ever J 
 renounce marriage, he writes: "This testamentary 
 provision in restraint of marriage, with no means 
 of enforcing it, would seem to have been the in- 
 vention of a story-teller rather than of a lawyer." 
 
 Well, the tale of the Caskets certainly was the ' 
 invention of a story-teller, for, as Sir Israel Gollancz 
 writes, " The Gesta Romanorum Richard Robinson's 
 English version, entitled ' Records of Ancyent His- 
 tory es ' (1577) contains the nearest approximation 
 to the story of ' The Three Caskets ' as treated in this ; 
 play," * and it was well known to English dramatic 
 literature at least as early as 1579. But then this \ 
 " testamentary provision " was " in restraint of 
 marriage " ; so Mr. Charles Allen appears to think 
 that no writer who had any knowledge of law could 
 possibly have introduced this old story into a play ! 
 
 Then the Trial Scene let the reader take note of 
 Mr. Allen's destructive criticism as to that. 2 Why, 
 inter alia enormia, Doctor Bellario actually palms off 
 Portia on the Duke of Venice as a young doctor of 
 laws from Rome, who could expound and determine 
 the law of Venice. " Such conduct," says Mr. Allen, 
 " if it were possible under our system, would be good 
 ground of disbarment here " ! 
 
 Then just see how the trial is conducted. Why, 
 *' Portia's rules of law will not bear examination." 
 Amongst other things, " such a condition of a bond 
 (Antonio's) probably would not even at that time 
 have been valid, as it involved a homicide. But if 
 valid, it would be no violation of the condition to cut 
 
 1 " The Temple Shakespeare " Edition, p. ix. See the 
 " Story of the Choice of Three Caskets " from the Gesta 
 Romanorum," translated by Richard Robinson, in Payne 
 Collier's " Shakespeare's Library," Vol. ii. p. 102. 
 
 2 Work cited, p. 113 and following. 
 
SHAKESPEARE'S LAW 21 
 
 off less than a pound of flesh," and so forth and so 
 forth. 
 
 So clearly Shakespeare was hopelessly ignorant 
 " alike of elementary legal principles and of legal pro- 
 cedure." Yes, and may we not add, with the learned 
 Mr. Devecmon, " of the fundamental principles of 
 justice " also ? 
 
 Now I would ask the " judicious reader," what does 
 he think of criticism of this kind ? To me I confess it 
 appears to be indicative of an utter dearth not only of 
 critical intelligence, but of ordinary common sense. 
 
 What is this delightful play which we all know as 
 The Merchant of Venice ? First of all let it never be 
 forgotten that it is a comedy. Those who saw the late 
 Sir Henry Irving in it could hardly escape from the 
 idea that it was a tragedy. Their sympathies became 
 gradually enlisted in favour of the harassed old Jew, 
 and Shylock became the hero of the piece ; and even 
 those who have seen Maurice Moscovitch in the part 
 to my mind an ideal Shylock can hardly laugh at 
 the misery of the wretched old man, as, no doubt, 
 audiences in Shakespearean times, to whom Jew- 
 baiting on the stage was a congenial sport, were 
 accustomed to do, or refrain, in spite of his avarice 
 and his cruel desire for vengeance, from extending to 
 him some meed of sympathy in his despair. But this, 
 I take it, arises from the softened humanities of our 
 own times, when we feel that " the quality of mercy 
 is not strained " even when it is extended to such a 
 miserable creature as Shylock. 
 
 The play, then, is a " comedy," and must be criticized 
 as a comedy. But the point is that, in the main, it is 
 all taken from the Pecorone of Ser Giovanni (Day IV, 
 Novel I). Here we find the Merchant, the Jew, the 
 bond, the pound of flesh, the lady ("of Belmonte ") 
 doctor of laws, the episode of the ring, etc., etc., with 
 all of which Shakespeare has made us familiar ; and 
 that he followed the old Italian writer very closely is 
 
22 SHAKESPEARE'S LAW 
 
 made manifest by a reference to the original. Tak( 
 the following as one example. Shylock stipulates foi 
 
 an equal pound 
 
 Of your fair flesh, to be cut off and taken 
 In what part of your body pleaseth me. 
 
 Ser Giovanni's words are : " Che '1 Giudeo gli potesj 
 levare una libra di carne d'addosso di qualunqut 
 luogo e'volesse " ; i.e., " that the Jew might take 
 pound of flesh from any part of his body he pleased.' 
 
 This, then, is the story which Shakespeare has 
 taken and alchemized in his ow r n marvellous way, 
 transmuting baser metal into purest gold, as he alone 
 knew how, but following closely upon the lines laid] 
 down for him by Ser Giovanni's novel ; and because I 
 the Jew who " thought to play a trick is tricked | 
 himself " ; because he is not only denied his pound of j 
 flesh, but done out of his ducats ; because he is 
 mocked and jeered at and made a butt of in the play, 
 as in the novel ; because the dramatist brings in 
 Portia, " the lady of Belmonte," as a doctor of laws, 
 and introduces into his comedy a trial scene very much 
 after the style of the Italian original, therefore we are 
 to be told, forsooth, by a doctrinaire critic that Shake- 
 speare could have had no knowledge of elementary 
 legal principles or procedure, and perhaps not even 
 of the " fundamental principles of justice " ! 
 
 Is this, I would ask, really to be accepted as the 
 intelligent and enlightened and well-informed Shake- 
 spearean criticism of the present day ? For myself I 
 should characterize it by epithets of a very different 
 kind. But perhaps the " judicious reader " will 
 supply them. I assert that such a play as The Mer- 
 chant of Venice, though it gives us proof that the 
 
 1 Ser Giovanni Fiorentino's story, with English transla- 
 tion, is to be found in Payne Collier's " Shakespeare's Lib- 
 rary," Vol. ii. p. 65. See also The Pecorone of Ser Giovanni, 
 now first translated into English by W. G. Waters, illustrated 
 by E. R. Hughes, R.W.S. (1897). 
 
SHAKESPEARE'S LAW 23 
 
 author of it stands in the supreme rank of dramatists, 
 provides us with no evidence whatever either that he 
 had special knowledge of law, or that he was ignorant 
 of law. A man endowed with the dramatic genius of 
 Shakespeare, even though he were a Lord Chancellor, 
 or a Lord Chief Justice of England, might take an 
 Italian model and fashion upon it such a play, even 
 though all the law and legal procedure therein were 
 wildly discordant when compared with " our system," 
 to which Mr. Allen makes such solemn reference. All 
 his concern would be to make a delightful comedy 
 amid delightful Italian scenery, and, not being a stolid 
 dolt, he would not concern himself a twopenny button- 
 top about the laws of England and the practice of the 
 King's Bench. 
 
 If, then, it is deemed " judicious " by our Shake- 
 spearean Highbrows of the present day to see in 
 The Merchant of Venice a proof that the poet who is 
 " not of an age but for all time " was destitute of all 
 knowledge of " elementary legal principles and legal 
 procedure," I can only pray that I may be found 
 among the injudicious to the end of my allotted time. 1 
 
 1 There is yet another thing that sapient lay critics are apt 
 to forget. It is impossible for the best of lawyers to make 
 a " trial scene " on the stage conform to strict legal procedure. 
 Take, for example, the play called The Butterfly on the Wheel, 
 by Mr. E. G. Hemmerde, K.C., where such a scene is intro- 
 duced. Here a legal critic may find many things said and 
 done which could not have been actually said or done in a 
 real trial by jury, but it would be absurd to say that, there- 
 fore, Mr. Hemmerde is ignorant of law. A dramatist is, of 
 course, under the necessity of greatly compressing his " trial 
 scene," otherwise it would, probably, last many hours, and in 
 order to do this he is obliged to depart from the rules of legal 
 procedure. His witnesses, for instance, cannot be ex- 
 amined, cross-examined, and re-examined as they would 
 be in a Court of law, and, amongst other irregularities, 
 " leading questions " are absolutely necessary for him. 
 These things are not " mistakes." They are the result of 
 the necessities of the case. 
 
24 SHAKESPEARE'S LAW 
 
 But what about Antonio's bond ? Is it not clef 
 that Shakespeare went wrong here on an elementary] 
 point of law ? Why, he did not know the distinction] 
 between a " single bond " or simplex obligatio, and 
 conditional bond ! 
 
 Let us examine this, and I think we shall find thai 
 the error is not Shakespeare's but that of the learne< 
 critics and commentators. What says Mr. Charle 
 Allen ? " In The Merchant of Venice Shylock says :- 
 
 Go with me to a notary, seal me there 
 Your single bond. 
 
 Technically, a single bond was a bond without con- 
 dition, but Antonio's bond was to have a condition, 
 and therefore it was inaccurately described as a single 
 bond." 
 
 Now, in the first place, the Cambridge Editors tell 
 us that the expression a " single bond " may be pro- 
 perly used of a bond without sureties, and so also 
 says Sir Israel Gollancz. 1 But I have no desire to ride 
 off on that explanation, for I propose to show that 
 Antonio's bond was not a conditional bond, as that 
 expression is understood by lawyers, but really a 
 " single bond." 
 
 " Bonds have usually a condition annexed to them 
 that on the person bound paying so much money, or 
 doing some specified act, the bond shall be void. A 
 bond without a condition is called a single bond." 2 
 Again, "a bond is an instrument under seal whereby 
 the party from whom the security is taken obliges 
 himself to pay a certain sum of money to another at a 
 day specified. If this be all, the bond is called a 
 single one (simplex obligatio}, but there is generally a 
 condition added that if the obligor does, or abstains 
 from doing, some particular act, the obligation shall 
 be void, or else shall remain in full force, and the sum 
 
 1 The "Temple" Edition, Glossary, p. 124. 
 8 Encyclopaedia of the Laws of England, vol. ii. p. 334. 
 Art. " Bond " (1906). 
 
SHAKESPEARE'S LAW 25 
 
 mentioned in the obligatory part of the bond is in the 
 nature of a penal sum (or penalty), and is usually fixed 
 at much more than is sufficient to cover any possible 
 damage arising from the breach of the condition." 1 
 
 A well-known example of a conditional bond is a 
 common recognizance, in which the obligor binds him- 
 self to pay a certain sum of money to H.M. the King, 
 the " condition " of the recognizance being that if he 
 is of good behaviour for a certain time the bond 
 becomes void, and no money has to be paid. 
 
 Now let us try to apply these legal definitions and 
 examples to Antonio's bond. Antonio bound himself 
 to pay to Shylock a certain sum of money " on such a 
 day, in such a place " (Merchant of Venice, i. 3, 147). 
 And what was the " condition " upon the perform- 
 ance of which the bond was to become void ? There 
 was no such condition. Antonio binds himself abso- 
 lutely to pay this certain sum at a certain place on a 
 certain day. True there was a penalty attached if he 
 failed to do so. In that case he was to forfeit a pound 
 of flesh. But that was not a " condition " on the 
 performance of which the bond was to become void. 
 On the contrary, it was a penalty pure and simple, 
 dependent for its effect upon the existence of the bond. 
 If it had been provided by the document that Antonio 
 should enter into an obligation to allow Shylock to 
 cut off a pound of his flesh, " on such a day, in such a 
 place," the " condition " of the bond being that if he 
 paid a certain sum of money at a fixed date then the 
 bond should become void and of no effect, in that case 
 the bond would have been a " conditional " one. But 
 we have only to refer to the passage cited from the 
 play to see that this was not so, for, I repeat, Antonio 
 simply bound himself to pay the money at a fixed time 
 and place, without condition or qualification, and, 
 says Shylock, if he did not do so 
 
 1 Stephen's Comm., llth Edn. (1890), vol. ii. p. 117. 
 
26 SHAKESPEARE'S LAW 
 
 let the forfeit (i.e. the penalty) 
 Be nominated for an equal pound 
 Of your fair flesh. 
 
 And further on he asks : 
 
 If he should break his day, what should I gain 
 By the exaction of the forfeiture ? 
 
 So that the " obligation " was not to allow the pound 
 of flesh to be cut away ; the " obligation " was to pay 
 the money, subject to the " forfeiture," or penalty, 
 named, which was to be enforced, if the Jew so 
 pleased, upon the obligor's failure to pay as agreed. 
 It is as if A binds himself to pay to B 100 on Janu- 
 ary 1 at the Royal Exchange, subject to the penalty, 
 on failure so to do, of handing over his motor-car to B. 
 But this is not a bond " with collateral condition." 
 It is a " single bond " with a penalty attached in case 
 of non-payment. It is true that Shylock talks of 
 " such a sum or sums as are expressed in the condi- 
 tion," but " condition " here means nothing more 
 than the bargain, or this particular term of the bar- 
 gain, and that this is so, and that Shakespeare had 
 not in view a " condition " in the technical sense, is 
 made manifest by a reference to the original Italian 
 from which the story is taken. Here we read : " E 
 perche gli mancavano dieci milia ducati, and6 a un 
 Giudeo a Mestri, e accattogli con questi patti e con- 
 dizioni, che s'egli non glie 1'avesse [renduti dal detto 
 di a San Giovanni di giugno prossimo a venire, che 
 '1 Giudeo gli potesse levare una libra di carne d'addosso 
 di qualunque luogo e' volesse " i.e., " As he wanted 
 still ten thousand ducats, he applied to a Jew at 
 Mestri, and borrowed them on these terms and condi- 
 tions, that if they were not repaid on the feast of St. 
 John in the next month of June, the Jew might take 
 a pound of flesh from any part of his body he pleased." 
 This clearly shows whence the dramatist took the 
 word " condition " which he puts into Shylock J s 
 mouth, and that its meaning is only such as I have 
 
SHAKESPEARE'S LAW 27 
 
 explained. It is from not observing this that certain 
 critics, like Mr. Charles Allen, have been misled into 
 charging Shakespeare with "bad law," because he 
 calls Antonio's obligation a " single bond," which in 
 reality it was. If it be objected that such a form of 
 bond is not often met with in our English practice 
 or " our system," as Mr. Allen calls it the answer is 
 that in all this story Shakespeare merely follows Ser 
 Giovanni, and the conclusion of the whole matter is 
 that it is the sapient critics, and not the great drama- 
 tist, who have been guilty of lamentable error and 
 absurdity concerning both the bond, and the play 
 generally. l 
 
 Quite similar, and open to the same observation, is 
 Mr. Allen's criticism of Cymbeline. Here, says he, 
 " the wager upon which lachimo came to England 
 was grossly immoral, and could never have supported 
 an action at law ; but in the play lawful counsel were 
 to be called in to draw covenants which should be 
 valid in law." The answer is that all this story about 
 the wager was taken from Boccaccio, and it is absurd 
 to suppose that Shakespeare, when founding a play 
 on an Italian romance, would trouble himself about 
 the English law concerning wagers contra bonos mores 
 and the like. Aye, but Posthumus says to lachimo, 
 " Let there be covenants drawn between us ... let 
 us have articles betwixt us," and lachimo agrees, and 
 says " We will have these things set down by lawful 
 counsel," and such an agreement between these two 
 (entered into at Rome) is adduced by Mr. Allen as 
 evidence of " bad law " and ignorance of legal prin- 
 ciples, because according to English law- though 
 Cymbeline, it may be remembered, was a British 
 King supposed to have been contemporary with the 
 
 1 Malone, himself a sound lawyer, knew better. He 
 quotes the words " Go with me to a notary, seal me there 
 your single bond " in illustration of Shakespeare's legal 
 knowledge. BosweWs Malone, vol. ii. p. 109. 
 
28 SHAKESPEARE'S LAW 
 
 Roman Emperor Augustus such a contract could 
 not be enforced ! Are we really to regard this as the 
 sort of Shakespearean criticism which is now accepted 
 and endorsed by our pundits of literature ? Quantula 
 sapientia ! 
 
 I now come to an instance of alleged bad law in 
 Shakespeare which has been frequently cited by the 
 critics, and where again I think I shall have no diffi- 
 culty in showing that it is the critics, and not 
 Shakespeare, who are in error. 
 
 " In Airs Well that Ends Well," says Mr. Allen, 
 " the King of France assumed the power to compel 
 his ward Count Bertram to marry Helena, though 
 Bertram remonstrated against being compelled to 
 marry a poor physician's daughter." But the law of 
 " Guardian and Ward " was that " the spouse must 
 be of equal rank with the ward," and Coke on Little- 
 ton is quoted to show that " the lord could not dis 
 parage the ward by a mesalliance." Then, says Mr 
 Allen, "it is quite clear that Shakespeare overlookec 
 this feature of the law " ; and here he is support ec 
 by Mr. Arthur Underbill, a distinguished conveyanc 
 ing counsel, who, in Shakespeare's England (vol. i. p 
 387), writes that Shakespeare had " ignored " this 
 condition. Moreover, Lord Campbell himself has a 
 note to the effect that "it is doubtful whether Ber- 
 tram, without being liable to any penalty or forfei- 
 ture, might not have refused to marry Helena on 
 the ground that she was not of noble descent," citing 
 Coke on Littleton as above. 1 
 
 I venture to say, however, that Shakespeare hac 
 neither " overlooked " nor " ignored " the condition 
 in question. True " the spouse must be of equal rank 
 with the ward," as Mr. Under hill writes, but the King 
 was no ordinary " guardian." The King is the foun- 
 tain of honour, and it was in his power so to ennoble 
 1 Shakespeare's Legal Acquirements (1859), p. 58. 
 
SHAKESPEARE'S LAW 29 
 
 " the spouse " as to make her " of equal rank with the 
 ward." And this the King of France undertook to 
 do in Helena's case. Hearken unto the following :< 
 
 King. 'Tis only title thou disdain' st in her, the which 
 I can build up . . . 
 
 If thou canst like this creature as a maid 
 I can create the rest : virtue and she 
 Is her own dower ; honour and wealth from me. 
 
 Whereupon says Bertram : 
 
 who so ennobled 
 Is as't were born so. 
 
 And the King, to clinch the matter, adds : 
 
 Take her by the hand, 
 And tell her she is thine : to whom I promise 
 A counterpoise : if not to thy estate, 
 A balance more replete. 1 
 
 It appears to me that it is the critics who have 
 " overlooked " or " ignored " a very material passage 
 in the play. 
 
 But even if it had been otherwise ; if Shakespeare 
 had made a King of France threaten a ward with the 
 results of his displeasure should he refuse to marry a 
 lady whom the King desired him to marry although 
 of inferior rank, what cogency could reasonably be 
 attached to such an incident in a drama, as evidence 
 of ignorance of law on the part of the dramatist ? 
 Very little indeed as it appears to me. Yet this is the 
 only instance cited by Mr. Underhill in support of his 
 assertion that Shakespeare's " knowledge of law was 
 neither profound nor accurate " an instance which, 
 when carefully examined, has " melted into air, into 
 thin air." 
 
 And here I must turn aside for a moment from Mr. 
 Charles Allen in order to say yet another word con- 
 cerning Mr. Underbill's essay on Shakespeare's Law. 
 This learned writer remarks on Shakespeare's allusions 
 to " fines and recoveries," which, he says, " seemed 
 1 Act. ii. Sc. 3. 
 
30 SHAKESPEARE'S LAW 
 
 to Lord Campbell to ' infer profound knowledge of the 
 abstruse law of real property,' but which only seem 
 profound and difficult to lawyers of the nineteenth 
 and twentieth centuries because they have become 
 archaic and unfamiliar." Now to Lord Campbell, at 
 any rate, such expressions as " fines " and " recov- 
 eries " would not have seemed either " profound " or 
 " difficult," neither to him would such terms have 
 been " archaic and unfamiliar," seeing that these 
 proceedings were part of our normal legal procedure 
 for upwards of fifty years of his Lordship's life, and 
 that he was himself Solicitor-General when they were 
 abolished by the legislature in the year 1833. More- 
 over, I cannot find the quotation which Mr. Underbill 
 purports to cite from Lord Campbell in his book on 
 Shakespeare's Legal Acquirements.* What he does 
 say, with reference to some words quoted by him from 
 the Comedy of Errors, is that " they show the author 
 to be very familiar with some of the most abstruse 
 proceedings in English jurisprudence " a very differ- 
 ent thing from " the profound knowledge of the 
 abstruse law of real property." 
 
 Lord Campbell further cites the following from Tht 
 Merry Wives : 
 
 Mrs. Ford. What think you ? May we, with the warranl 
 of womanhood, and the witness of a good conscience, pursue 
 him with any further revenge ? 
 
 Mrs. Page. The spirit of wantonness is, sure, scared oul 
 of him. If the devil have him not in fee simple, with fine 
 and recovery, he will never, I think, in the way of waste 
 attempt us again. 
 
 1 Mr. Underhill has kindly written to me that his artich 
 was written upwards of ten years ago, and that he canno 
 now say where he got the words in question, but " mus 
 have taken it [the quotation] from some printed source.' 
 I think, therefore, there can be no doubt that he took it from 
 some writer who misquoted Lord Campbell. Certainly h 
 would not have written such nonsense. See my letter in 
 the Times Lit, Supp., March, 11, 1920. 
 
 
SHAKESPEARE'S LAW 31 
 
 Here Lord Campbell does not suggest that the mere 
 mention of all these well-known legal terms warrant, 
 witness, waste, jee simple, -fine and recovery is proof 
 of Shakespeare's knowledge of legal principles. All 
 he suggests is that his " head was so full of the recon- 
 dite terms of the law, that he makes a lady thus pour 
 them out, in a confidential tete-d-tete with another 
 lady," and further, that " this Merry Wife of Windsor 
 is supposed to know that the highest estate which the 
 devil could hold in any of his victims was a fee simple, 
 strengthened by fine and recovery." 
 
 Now few lawyers, I take it, of the present day know 
 very much about fines and recoveries, and laymen, 
 naturally, know nothing at all. Nevertheless we find 
 that certain laymen, though themselves ignorant of 
 law, have of late, with sublime confidence, undertaken 
 to instruct us concerning Shakespeare's legal know- 
 ledge, or the want of it ; whence it happens that many 
 laughable errors have been solemnly committed to 
 print. One recent lay critic, for example, who desires 
 >to show that all Shakespeare's " law " can be easily 
 paralleled by similar legal expressions to be found in 
 other dramatists, though devoid of all legal education, 
 who were the great poet's contemporaries, has cited 
 the word " fine," when used in its ordinary sense of a 
 money-payment, as a parallel to the word as used by 
 Shakespeare in the expression " fine and recovery," 
 and the word " recovery " when used of the recovery 
 of a debt, or of the ordinary action for the recovery of 
 land (as distinct from the fictitious suit), as parallel 
 to Shakespeare's usage of the word in the technical 
 sense as above ! 
 
 Now no lawyer needs to be told that fines and 
 recoveries were collusive actions employed to bar 
 estates tail, to bar dower, to convey estates of married 
 women, to enable married women to join with their 
 husbands in selling property, and for other purposes 
 known to conveyancers. They differed in their pro- 
 
32 SHAKESPEARE'S LAW 
 
 cedure and in their effects. One " levied " a fine, but 
 one " suffered " a recovery. The word " fine " in this 
 connection had nothing to do with a money payment. 
 As we read in an ancient record of Parliament, 18 
 Edward I, " finis sic vocatur eo quod finis et consum- 
 matio omnium placitorum esse debet " ; and, similarly, 
 we read in the statute 27 Edward I, c. i, " Quia fines 
 in curia nostra levati finem litibus debent imponere, et 
 imponunt et ideo fines vocantur." 1 
 
 And the supposed parallels to the word " recovery " 
 as used by Shakespeare in conjunction with " fine," 
 are equally ridiculous, 
 
 But some sapient critics have objected that Shake- 
 
 1 Mr. Underbill gives us a brief description of a Common 
 Recovery, and adds a word with regard to a fine (Work cited, 
 pp. 404-5). I would refer to Stephen's Comm., 8th Edn., i. 
 564; Kerr's Blackstone (1862), vol. ii. 351; and Cruise on 
 Fines and Recoveries (3rd Edn., 1794, vol. i. pp. 175, 197- 
 227). Mr. J. M. Robertson, who, as a layman, was not un- 
 naturally ignorant of the meaning of the words " fine " and 
 " recovery " used in their technical sense, has come quite 
 amusingly to grief by finding parallels to them in the use by 
 Dekker and other dramatists contemporary with Shake- 
 speare of the same words in their ordinary signification, as, 
 e.g., in the use of " fine " in its common meaning of a money 
 payment. Thus, after telling the reader that " 4 Fine,' as 
 it happens, is a common figure in the drama of Shakespeare's 
 day," he quotes from Dekker: 
 
 an easy fine 
 For which methought I leased away my soul ; 
 
 and from Porter: 
 
 Francis, my love's lease I do let to thee, 
 
 Date of my life and time ; what say'st thou to me ? 
 
 The ent'ring, fine, or income thou must pay. 
 
 And actually informs us that, " There is nothing more tech- 
 nical in the ' Comedy of Errors '" ! ( The Baconian Heresy, p. 46). 
 This is, of course, ludicrous. See my Shakespeare's Law and 
 Latin (Watts & Co., 1916), p. 11 et seq. We even find the 
 above absurd error as to the meaning of the word 
 "fine" in Schmidt's Shakespeare Lexicon (1874). 
 
 
SHAKESPEARE'S LAW 33 
 
 speare is inaccurate in speaking of a " fee simple with 
 fine and recovery," imagining that both these forms 
 of assurance would not be employed in respect of the 
 same property. They are wrong, as the -reader may 
 satisfy himself if he cares to refer to Cruise on Fines 
 and Recoveries (3rd Edn. 1794 ; see vol. ii. pp. 21 and 
 52). Together these two devices operated to " make 
 assurance doubly sure," and were not unfrequently so 
 used. 1 
 
 Let us now return to Mr. Charles Allen and see what 
 further supposed proofs of Shakespeare's " bad law " 
 he has to set before us. He actually finds one in 
 Antony's great speech over the body of the murdered 
 Julius. 
 
 Moreover he hath left you all his walks, 
 His private arbours and new-planted orchards, 
 On this side Tiber ; he hath left them you, 
 And to your heirs for ever. 
 
 But, cries Mr. Allen, " In a devise or dedication of 
 lands to the public, the words ' to your heirs for ever ' 
 are misplaced, as they would imply individual owner- 
 ship, instead of a right vested in that indefinite body 
 the public." These words, he says, are not to be 
 found in any other account of Caesar's Will, " and 
 they were probably added by Shakespeare, who either 
 did not know or overlooked their inappropriateness 
 in a devise of this kind." 
 
 It is difficult to speak with due restraint of such 
 criticism as this. " Their inappropriateness " ! Good 
 Heavens I Whether or not Shakespeare was a lawyer 
 he was certainly a dramatist, and the best of all 
 dramatists. And could anybody with a spark of 
 
 1 Mal^ne tells us of a deed of June 2, 1647, " to lead the 
 uses of a fine and recovery of our poet's estate, then in the 
 possession of his eldest daughter, Susanna Hall." BoswelVs 
 Malone (1821), vol. ii. pp. 116-7. 
 
 c 
 
34 SHAKESPEARE'S LAW 
 
 dramatic instinct, anybody but a hide-bound pedant, 
 fail to see how splendidly those words, " and to your 
 heirs for ever," ring out for the ears of the populace ? 
 They may be " inappropriate " for an indenture, but 
 Antony was no lawyer, and he was not drafting a 
 deed. Neither was Shakespeare, whether lawyer or 
 not, such a poor dramatist as to make a great orator, 
 speaking to rouse the passions of a Roman mob, talk 
 in the technical language of a conveyancer. 
 
 And this is solemnly put before us as an example 
 of Shakespeare's " bad law," and our literary pastors 
 and masters commend it to us as " especially note- 
 worthy " criticism ! Yes, noteworthy it is indeed. 
 
 Here is another example : In Coriolanus, Sicinius 
 says : 
 
 He hath resisted law, 
 
 And therefore law shall scorn him further trial 
 Than the severity of the public power 
 Which he so sets at naught. 
 
 But, comments Mr. Allen, " Resisting law was no 
 legal reason for denying him a trial " I 
 
 Now it is curious that Mr. Rushton, himself a 
 learned lawyer, has quoted this very passage, amongst 
 others cited by him, to illustrate Shakespeare's fami 
 liarity with legal maxims. In connection with the 
 above-quoted words from Coriolanus (Act iii. 1) h( 
 refers to the maxim, " Merit o beneficium legis amittit 
 qui legem ipsam subvertere intendit " (2 Inst. 53) 
 and notes that, in accordance therewith, " Coriolanus 
 had resisted law and therefore lost the benefit of th< 
 law." i 
 
 And after all, as Mr. Allen notes, " it was finally 
 decided to proceed regularly by process." Really 
 such solemn trifling is but waste of the reader's time 
 
 Again, Mr. Allen takes objection to the use of the 
 word " demise " in the following passage from King 
 Richard III : 
 
 1 Shakespeare's Legal Maxims (1907), p. 58. 
 
SHAKESPEARE'S LAW 35 
 
 Tell me, what state, what dignity, what honour 
 Canst thou demise to any child of mine ? (iv. 4, 247.) 
 
 Here he says the word " seems to be used not only in 
 an untechnical, but in an unusual sense." 
 
 Now the first comment to be made on this is that 
 the words in question are spoken by the Queen Eliza- 
 beth, and I am not aware that it has ever been 
 asserted even by the most zealous advocate of the 
 " legalist " Shakespearean School, that Shakespeare 
 was not only such a hide-bound lawyer, but also so 
 wanting in dramatic propriety as to make his ladies 
 use legal expressions with the accuracy of the trained 
 lawyer. He does, indeed, as we have already seen, 
 sometimes put a string of well-known legal expres- 
 ^sions, such as " fines " and " recoveries " and the like, 
 into a woman's mouth, but that is, of course a very 
 different thing from making women speak, in serious 
 conversation, in the technical language of the lawyer. 
 This is the answer to another objection taken by Mr. 
 Allen, viz. : that " In As You Like It 9 Celia, in speak- 
 ing of her own father, says to Rosalind, 4 And, truly, 
 when he dies, thou shalt be his heir,' meaning that she 
 riierself would share her inheritance with Rosalind," 
 "where, says Mr. Allen, " this use of the word appears 
 fto be not only untechnical but unique." 
 
 Is he then prepared to argue that if Shakespeare 
 had really possessed an adequate knowledge of law 
 (which, of course, he denies) he would have sacrificed 
 ;his dramatic art to legal propriety, and made his 
 ladies speak with the technical accuracy of the law- 
 student ? If not, objections of this nature are but 
 fond things vainly invented. 
 
 But to come back to this use of the word " demise." 
 To " demise " means to " convey," " transfer," or 
 " grant." To apply it to a " dignity " or " honour " 
 "may be unusual, but, certainly, it cannot be called an 
 example of " bad law." Moreover, the Queen is 
 right, prima facie at any rate, when she suggests to 
 
36 SHAKESPEARE'S LAW 
 
 Richard that he has no power to " demise " any 
 dignity or honour to a child of hers, for, as Comyrfs 
 Digest informs us, "a dignity or nobility cannot be 
 aliened or transferred to another." Nevertheless 
 there was an exception. It was possible for Richard 
 to " demise " such dignities or honours, inasmuch as 
 he was King, and even a subject could make a grant 
 of such things " with the King's licence." 
 
 And here I must give another alleged example of 
 Shakespeare's " bad law," again to be found (as it is 
 said) in the utterance of a Queen, which, although it 
 is not cited by Mr. Charles Allen, is so full of interest, 
 and instruction for Shakespearean critics and students 
 that it cannot be left out of the account. 
 
 Queen Katherine, in Henry VIII (Act ii. 4), says 
 to Wolsey : 
 
 I do believe, 
 
 Induced by potent circumstances, that 
 You are my enemy, and make my challenge. 
 You shall not be my judge. 
 
 Whereupon say certain critics, lay and legal Mr. 
 Devecmon of the Maryland Bar is one of them, and I 
 quote his words : " To ' challenge ' is to object or 
 except to those who are returned to act as jurors, 
 either individually or collectively as a body. The 
 judge was not subject to challenge," This, there- 
 fore, is yet another instance of " bad law " on Shake- 
 speare's part. 
 
 Now, here I should have thought it was sufficient 
 to reply that " challenge " was constantly used in the 
 sense of " objection " ; and that, even though the 
 poet might have had the legal significance in his mind, 
 it certainly does not argue the absence of legal train- 
 ing on his part that Katherine should apply, by a 
 very natural analogy, to one of the two Cardinals who 
 were to act as judges in her case (but subject to the 
 supreme tribunal of the Pope, the real judge), a term 
 which in strict legal usage is properly applicable to a 
 
SHAKESPEARE'S LAW 37 
 
 juror only ; and here again I might comment on the 
 curious idea that a dramatist cannot be a lawyer 
 unless he makes his ladies and laymen speak in the 
 language that a trained lawyer would employ. 
 
 But there is much more than this to be said. These 
 critics have forgotten that the question of Katherine's 
 divorce was to be tried not in one of the Temporal 
 Courts, but in an Ecclesiastical Court ; and here an 
 objection might be taken by the defendant on the 
 ground that the judge was a " suspect " person (iudex 
 potest ut suspectus recusari) for certain just causes 
 which may be found set forth in the Corpus Juris 
 Canonici, and the Decretals of Gregory IX. Kath- 
 erine, therefore, acted strictly within her rights in 
 challenging Wolsey (" challenge " here standing for 
 " r ecus are " " I do refuse you for my judge "), 
 because she believed him to be her enemy. Wolsey, 
 however, denies the accusation, tells the Queen to put 
 such notions away from her, and will not admit the 
 objection. This was provided for by the Canon Law : 
 quod si iustam recusationis causam noluit admittere 
 delegatus . . . a tali gravamine licite potuit ad nostram 
 audientiam appellare. Agreeably with this Katherine 
 makes her appeal : 
 
 I do refuse you for my judge, and here, 
 Before you all, appeal unto the Pope 
 To bring my whole cause 'fore his holiness, 
 And to be judged by him. 
 
 Katherine, it seems, follows the correct procedure 
 throughout, except that, perhaps, the more regular 
 course would have been to let her proctors act for her 
 in making her challenge and raising her appeal, but 
 that would have led to the sacrifice of one of the most 
 dramatic incidents of the play. 
 
 There seems, then, to be no doubt that the author 
 of this part of King Henry VIII was acquainted with 
 the correct procedure of the ecclesiastical courts, and 
 
38 SHAKESPEARE'S LAW 
 
 has stated it accurately in this scene, and, therefore, 
 that this passage, instead of being an example of 
 Shakespeare's legal nescience, is, on the contrary, a 
 very remarkable proof of his exceptional legal know- 
 ledge. One could hardly find a more instructive 
 example of the dangers that lie in wait, not only for 
 the layman, but for the lawyer himself, unless he be 
 equipped with a very thorough all-round legal train- 
 ing, when he essays to criticize Shakespeare's use of 
 legal terms. 1 
 
 All this is, I think, instructive and illuminating, 
 but I have to admit that, so far as I am concerned, it 
 is ex abundanti on the matter of Shakespeare's legal 
 knowledge, because, in my humble judgment, it has 
 now been proved that so much of Henry VIII as was 
 not written by Fletcher was the work of Massinger, 
 who wrote in collaboration with him. 2 
 
 It now only remains to say a word concerning 
 Measure for Measure, the second of the two plays, in 
 which, according to Sir Sidney Lee, " no judicious 
 reader can fail to detect " Shakespeare's ignorance 
 " alike of elementary legal principles and of legal 
 procedure." Let us see, then, what Mr. Charles 
 
 1 Mr. W. W. Graham, British Vice-Consul at Durango, 
 Mexico, writes to me that " Under the old Spanish Code 
 either party to a suit has the right to ' recusar,' i.e., ' chal- 
 lenge ' the judge on eleven different grounds, of which No. 9 
 is that he has previously interested himself or expressed an 
 opinion on the case pending. This right is frequently exer- 
 cised in Mexican law to-day. The Queen, true to her 
 character as a Spanish lady, twice ' refuses ' Wolsey as 
 judge, an almost literal translation of ' recusar.' Surely 
 this is one more proof that the Great Unknown was posted 
 on Spanish law as well as on English " ! 
 
 2 See Sidelights on Shakespeare, by H. Dugdale Sykes. 
 (The Shakespeare Head Press, Stratford-upon-Avon, 1919.) 
 It was, of course, Mr. James Spedding who offered proof that 
 a great part of the play, including Wolsey's and Bucking- 
 ham's speeches, was written by Fletcher, an opinion which 
 has met with general acceptance. 
 
SHAKESPEARE'S LAW 39 
 
 Allen, to whom Sir Sidney refers us for legal light and 
 leading, has to say concerning this play. 
 
 "In Measure for Measure," writes this critic, 
 " Claudio was condemned to death for an assumed 
 offence of which he was legally innocent. . . . 
 Claudio had taken Juliet for his wife, per verba de 
 praesenti. According to the law in Shakespeare's 
 time, cohabitation after such a pre-contract of mar- 
 riage was not a crime." Here, then, is a 'flagrant 
 instance of " Bad law in Shakespeare." 
 
 But let us examine this case a little further. There 
 can be no doubt that Shakespeare based his play of 
 Measure for Measure upon George Whetstone's drama 
 of Promos and Cassandra (1578), and the prose version 
 of the same story which Whetstone included in his 
 Heptameron of Civil Discourses published in 1582. 1 
 Here we find that the scene is laid at Julio in Hungary, 
 where Lord Promos (Shakespeare's Angelo) has been 
 appointed lieutenant, or " deputy," by Corvinus, the 
 King of Hungary and Bohemia. In this city we are 
 told there was a " statute," which had been allowed 
 to go into disuse, but which was " revived " by Pro- 
 mos, whereby incontinence was made a crime punish- 
 able by death. Under this statute Andrugio (Claudio), 
 who, " by the yeelding favour of fayre Polina " 
 (Juliet), had " trespassed against this ordinaunce," 
 although he " onlye sinned through love, and never 
 ment but with marriage to make amendes," was 
 sentenced to be executed. We need not further 
 follow the plot except to say that Promos, giving way 
 to unlawful passion inspired by Andrugio's sister 
 Cassandra who, unlike Isabella, is induced to sacri- 
 fice herself in order to save her brother's life becomes, 
 like Angelo, himself guilty of the capital offence. 
 
 Now in Shakespeare's play the scene is laid in 
 Vienna, and here, as in Whetstone's play, we find 
 there was an old statute, which had been " let slip," 
 
 1 See Payne Collier's " Shakespeare's Library," vol. ii. p. 50- 
 
40 SHAKESPEARE'S LAW 
 
 i.e., disused, for " fourteen years " (Act i. 3, 21 ),* 
 under which the penalty of death was decreed against 
 those guilty of unlawful love a statute the existence 
 of which Mr. Allen strangely omits to mention. 
 
 It is true that Shakespeare complicates matters by 
 introducing the doctrine of " pre-contract," and by 
 assuming the existence of two such " pre-contracts," 
 one in the case of Claudio and Juliet, and another in 
 the case of Angelo and Mariana, and seeing that 
 " according to the law [of England] in Shakespeare's 
 time," such a " pre-contract " per verba de praesenti 
 was sufficient to constitute legal marriage, Mr. Allen 
 apparently considered himself justified in saying that 
 Claudio was " legally innocent " of any offence, for 
 " Claudio had taken Juliet for his wife, per verba de 
 praesenti," as appears from Act i. Sc. 2, 149, and 
 following lines. It is clear, however, that, in the 
 assumed circumstances of Shakespeare's play, such a 
 44 pre-contract " was of itself no defence to a charge 
 under the " statute," which required 44 the denuncia- 
 tion of outward order," i.e., a solemn ceremony of 
 marriage, before intimacy could be legalized. This 
 plainly appears from the fact that Claudio himself 
 nowhere contends that he is not guilty under the 
 terms of the 44 statute " ; he only complains that 
 he is to be made amenable under a 44 drowsy and 
 neglected act " ; nor is there any suggestion made by 
 any of the characters in the play that his sentence 
 was illegal. And if it had been so, why, we may ask, 
 did not the Duke, as soon as he began to take interest 
 in the affairs of the persons concerned, at once quash 
 Angelo's illegal sentence ? 2 
 
 1 "The law hath not been dead, though it hath slept," 
 says Angelo (Act ii, 2, 90), whereupon Mr. Rushton suggests 
 that Shakespeare had in mind the legal maxim " Dormiunt 
 aliquando leges, moriuntur mmquam." 
 
 2 I find it difficult, therefore, to subscribe to Mr. Under- 
 hhTs statement that " Angelo's condemnation of Claudio 
 
SHAKESPEARE'S LAW 41 
 
 So far all is plain sailing, but when we come to 
 consider Angelo's case we are confronted with no 
 little difficulty. Angelo himself was bound to Mari- 
 ana by a " pre-contract " per verba de praesenti. Mr. 
 Allen, indeed, suggests that this pre-contract "was 
 perhaps merely per verba de futuro, a mere executory 
 contract to marry in the future," but there is no 
 warrant whatever for such a suggestion, as is made 
 manifest by Act iv. Sc. 1. 72, where the Duke says to 
 Mariana, with reference to Angelo, " He is your hus- 
 band by a pre-contract," clearly showing that such 
 pre-contract was per verba de praesenti. But here 
 comes the difficulty. The Duke counsels Mariana, 
 counterfeiting Isabella under the cover of darkness, 
 to have marital relations with Angelo ; for, says 
 he : 
 
 He is your husband on a pre-contract. 
 To bring you thus together, 'tis no sin, 
 Sith that the justice of your title to him 
 Doth flourish [i.e., adorn, or justify] the deceit. 
 
 But these words might equally have been applied 
 to Claudio, who was Juliet's " husband on a pre- 
 contract," and yet held guilty of a capital offence 
 tinder the statute. And that the ceremony of mar- 
 riage was necessary in order to legalize the union of 
 Angelo and Mariana appears by Act v. Sc. 1. 380, 
 where the Duke asks Angelo, with reference to 
 Mariana : 
 
 for alleged fornication was, and was intended by Shakespeare 
 to be, absolutely tyrannical and illegal " (Shakespeare' 1 s 
 England, vol. i. p. 408). Mr. Underhill (who, however, does 
 not suggest any " bad law " on Shakespeare's part here) 
 appears to have ignored the existence of the " statute." 
 Angelo, it may be noticed, styles Juliet a " fornicatress," in 
 spite of the pre-contract (Act ii. 2, 24), and it seems that he 
 was justified in so calling her, since the poet evidently 
 requires us to assume that the pre-contract alone was not 
 sufficient to give validity to the marriage, or to exempt her 
 and her lover from the provisions of the statute. 
 
42 SHAKESPEARE'S LAW 
 
 Say, wast thou e'er contracted to this woman ? 
 
 and upon his answering, " I was, my lord," enjoins 
 him to " take her hence, and marry her instantly." 
 
 It would really seem, then, that in advising Mariana 
 to counterfeit Isabella, as before mentioned, the Duke 
 was counselling her to break the law as laid down by 
 the statute. 
 
 This is not a little puzzling, but perhaps all we can 
 say is that Shakespeare, for the purposes of his drama, 
 was content to be inconsistent, and that that part of 
 his plot which relates to the " statute," and that 
 which relates to the " pre-contract," cannot be made 
 to harmonize. But evidence of legal nescience there 
 is really none, and Mr. Allen himself, though he cites 
 this play under the heading of " Bad Law in Shake- 
 speare," does not actually accuse the dramatist of any 
 legal blunder here, for he is good enough to tell us that 
 " it is quite probable, morally certain indeed, that 
 Shakespeare himself knew the law in respect to such 
 pre-contracts . . . but in Measure for Measure for 
 dramatic purposes he chose to ignore it." l He adds, 
 " a mere play writer might thus trifle with the law, 
 but the future Lord High Chancellor of England would 
 have been less likely to do so "! But, really, we are 
 not out to discuss the " Baconian " hypothesis. The 
 simple question is whether Shakespeare has in Mea- 
 sure for Measure, as Sir Sidney Lee says, provided us 
 with such a flagrant example of " radical unsoundness 
 in his interpretation alike of elementary legal prin- 
 ciples and of legal procedure " that " no judicious 
 reader" can fail to detect it. I would earnestly 
 commend this sad case to the " judicious " student 
 of Shakespearean criticism. 
 
 1 Lord Campbell certainly knew the law with regard to 
 " pre-contracts," though he says nothing on the subject with 
 reference to Measure for Measure. See his learned judgment 
 in the Queen v. Millis, 10 Clark & Finnelly (1st Series), p. 
 534, which is a locus classicus on the subject. See pp. 763, 784. 
 
SHAKESPEARE'S LAW 43 
 
 But, here again, there is yet more to be said. Mr. 
 Allen quotes from this same play of Measure for 
 Measure the following words : 
 
 For his possessions, 
 
 Although by confiscation they are ours, 
 We do instate and widow you withal, 
 To buy you a better husband. 
 
 And his comment is that no similar use of the word 
 " widow " as a verb, " meaning to give the right of a 
 widow, is known either in law or elsewhere." 
 
 Now this statement as to the peculiar use of the 
 word " widow " may be, as far as I know, correct, but 
 it is curious that in the Literary Supplement to the 
 Contemporary Review of November, 1911, the writer of 
 an interesting article on " Shakespeare and the Law 
 of Marriage," whose name is not given, but who speaks 
 of himself as "a lawyer," quotes this very passage 
 from Measure for Measure, in order to show that 
 Shakespeare here makes a " correct statement of the 
 law " in a matter where " the law itself was, one 
 would think, too complicated and unusual in practice 
 for a layman to have known." The point is that " if 
 a tenant in chivalry committed a felony, this affected 
 his holding, and an escheat to the lord propter delic- 
 tum tenentis followed. But a felony was an offence 
 against the State, and so the Crown claimed the 
 escheat or forfeiture. But the Crown was compelled 
 to surrender this right by Magna Charta, though it 
 managed to retain it in the case of high treason, and 
 to this day, in the case of an outlawry upon an in- 
 dictment for treason, the traitor's land is forfeited to 
 the Crown. But what about the rights of the widow, 
 whether the escheat is to the lord or the Crown ? . . . 
 The widow had larger rights in her estate of dower 
 than even the heir, for she was absolutely secured 
 against any form of alienation by the owner. Yet 
 
44 SHAKESPEARE'S LAW 
 
 Shakespeare makes the Duke declare that, in this 
 case, she had no rights ; and he was correct, for the 
 law had been finally settled that way not so very long 
 before Shakespeare's time. Up to the reign of 
 Edward VI the widow was not protected against 
 escheat for felony or treason ; but in 1549 it was; 
 settled by statute that escheat in the case of felony 
 did not affect the widow's right of dower, though in 
 the case of high or petit treason the dower was extin- 
 guished, thus confirming, in the case of treason, the 
 old law, not only that no heir born before or after the 
 felony could take the escheated property, but that 
 every gift (including dower) made in the felon's life- 
 time was bad. So Mariana would not have been 
 entitled to dower unless the Duke had relinquished 
 his rights." 
 
 The learned writer finds it difficult to suppose that 
 Shakespeare, as a layman, although he has (possibly 
 " by accident " !) correctly stated the law in the 
 passage cited, " was familiar with this particular 
 obscurity in the law of treason " ; but he adds, " On 
 the other hand, the play teems with legal references 
 and correct statements of law, and it is dangerous to 
 dogmatize as to the extent of Shakespeare's legal 
 knowledge." 
 
 Alas, it is clear that the writer of this article, 
 though, doubtless, an able and experienced lawyer, 
 could not have been a " judicious reader " ! 
 
 I have now examined all Mr. Allen's instances of 
 Shakespeare's " bad law " which appear to me worthy 
 of any consideration, and as I venture to submit, I 
 have shown that his case has entirely broken down. 
 In tenuem evanuit auram. Lord Campbell may have 
 " greatly exaggerated Shakespeare's legal know- 
 ledge," and I certainly should not like to base upon 
 his book a case for such legal learning on Shakespeare's 
 part that " there can neither be demurrer, nor bill of 
 exceptions, nor writ of error " to the law as he makes 
 
SHAKESPEARE'S LAW 45 
 
 reference to, or " expounds it." * But the examples 
 which Mr. Allen parades before us, when properly 
 examined, entirely fail to disprove the proposition 
 that the great dramatist had exceptional knowledge " of 
 legal principles and legal procedure." Whether that 
 proposition can be established by an examination of 
 the plays and poems of Shakespeare conducted by a 
 competent and impartial critic it is not for me to say, 
 but, in view of all the wrangling and contention there 
 has been on this interesting question it is, I submit, 
 very desirable that such an examination should be 
 undertaken, and the whole matter re-considered ab 
 initio, if only that competent and impartial critic can 
 be discovered, and be willing to undertake the task. 
 If such there be I will venture to tender him some 
 advice before he enters upon the inquiry. 
 
 In the first place it is evident that he must be a 
 lawyer, and " a ripe and good one." It is absurd to 
 suppose that a man who has had no legal training is 
 competent to pronounce upon Shakespeare's know- 
 ledge or ignorance of " legal principles and legal pro- 
 cedure." He must also be learned not only in the 
 law of to-day, but in the law, and the practice of the 
 law, civil, criminal, and ecclesiastical, as known to the 
 lawyers of Elizabethan times. 
 
 Secondly, he should confine his investigations to 
 the plays that are generally admitted to be Shake- 
 spearean. I would exclude from the inquiry such 
 plays as (e.g.) Titus Andronicus, Henry VI (all three 
 
 1 Lord Campbell was himself guilty of mistakes in law, 
 as when commenting on the words " I give unto my wife my 
 second-best bed," in Shakespeare's will, he writes " the 
 subject of this magnificent gift being only personal property, 
 he shows his technical skill by omitting the word devise, 
 which he had used in disposing of his realty " ; for, as Mr. 
 Rushton points out, in Shakespeare's day " the words devise 
 and bequeath were applied indifferently to both real and 
 personal property." Shakespeare's Testamentary Language 
 (1869), pp. 23 and 49. 
 
46 SHAKESPEARE'S LAW 
 
 parts), Timon of Athens, Pericles, The Taming of the 
 Shrew, Henry VIII, and, possibly, Troilus and 
 Cressida (in part at any rate) as well. 
 
 Thirdly, he must, when adducing legal terms used 
 by other poets and dramatists, contemporaneous with 
 Shakespeare (in order to consider the question whether 
 these others also do not, as some contend, give proof of 
 legal knowledge as great as that to be found in the 
 Shakespearean plays and poems), strictly limit himself 
 to such writers as had, so far as is known, no special 
 legal education. For the question being whether 
 Shakespeare shows by his writings that he had an 
 exceptional knowledge of law, and must, therefore, 
 have received some legal training, it is obviously 
 otiose to quote, in this connection, passages from such 
 writers as Middleton, Donne, Beaumont, Marston, 
 Ford, and others, who, as we know, had studied law. 
 
 If, then, such an investigation should some day be 
 undertaken by such a competent and impartial 
 lawyer, or, I would rather say, by a special committee 
 of lawyers so qualified a consummation devoutly to 
 be wished, but hardly to be hoped for I venture very 
 gravely to doubt whether they would be found in 
 agreement with Sir Sidney Lee's assertion that " the 
 poet's legal knowledge is a mingled skein of accuracy 
 and inaccuracy, and the errors are far too numerous 
 and important to justify on sober inquiry the plea of 
 technical knowledge," or with Mr. Arthur UnderhilPs 
 pronouncement that " Shakespeare's knowledge of 
 law was neither profound nor accurate." On the 
 contrary, I think that they would dissent altogether 
 from any such judgment on the question of " Shake- 
 speare's Law." But until that investigation can be 
 made the " judicious " critic must, I apprehend, be 
 content to say, whatever his own opinion may be, 
 adhuc sub iudice Us est. 
 
 GEORGE GREENWOOD. 
 
FINAL NOTE 
 
 IT is impossible not to take note of the curious change 
 which has of late manifested itself in orthodox 
 criticism with regard to Shakespeare's law. As we have 
 seen, the earlier critics, including lawyers like Malone 
 and Lord Campbell, appeared to entertain no doubt that 
 Shakespeare's works evinced such an exceptional know- 
 ledge of law that their author must, somewhere and 
 somehow, have received a certain amount of technical 
 training. Just to give another example of the opinion 
 which prevailed on this matter till about the beginning 
 of the present century, I may cite a little book which lies 
 before me by a Barrister, who dedicates his work to the 
 late Lord Hatherley, then Lord Chancellor (Was Shake- 
 speare a Lawyer? by " H. T." Longmans, 1871). 
 
 The author, who appears to be a lawyer of some dis- 
 tinction, asserts with confidence that " any practising 
 lawyer, who had attentively studied the Plays, would feel 
 satisfied " that nothing less than some technical training 
 would " account for the perpetual and abundant crop of 
 legal lore which bristles over the productions of Shake- 
 speare's mind." And we have already seen that Sir Sidney 
 Lee, in the earlier editions of his Life of Shakespeare, 
 refers to the poet's ''accurate use of legal terms which 
 deserves all the attention that has been paid to it." 
 
 Now, however, we see that a marked change has come 
 over the spirit of the critical dream. Shakespeare's legal 
 knowledge, so far from being exceptional, is but " a 
 mingled skein of accuracy and inaccuracy ; the errors are 
 numerous and important." Shakespeare displays " a 
 radical unsoundness in his interpretation alike of elemen- 
 tary legal principles and of legal procedure." 
 
 Now, in the meantime it had been asked by certain 
 
 47 
 
48 SHAKESPEARE'S LAW 
 
 audacious sceptics, how came it about that William 
 Shakspere of Stratford had acquired all the exceptional 
 knowledge of law that the earlier critics lawyers and 
 laymen alike had attributed to him ? When, where, 
 and how had he obtained it ? The theory that he had 
 once been an Attorney's clerk had not a scintilla of evi- 
 dence to support it, and, for many reasons, seemed wildly 
 improbable. How, then, to account for Shakespeare's 
 law ? Was it possible that the name " Shakespeare " 
 stood, not for Shakspere of Stratford, but for some other 
 in whose case the hypothesis of a legal training presented 
 no difficulty ? 
 
 Then at once the alarum sounded in the orthodox 
 camps. The note of criticism was changed. What? 
 Shakespeare evinces an exceptional knowledge of law ? 
 Nonsense. Those old critics and commentators were all 
 absurdly wrong. We know better now. The layman of 
 to-day is more competent to decide this question than old 
 lawyers like Malone, or Campbell, or Rushton, or Grant 
 White, or Judge Webb, or Lord Penzance, el hoc genus 
 omne. Go to. Shakespeare had no more legal knowledge 
 than any other dramatist of his day, in fact not so much. 
 Shakespeare was no more learned in the law than he was 
 learned in Latin, or, in fact, in anything else. So that 
 difficulty is happily disposed of. Nous avons change tout 
 cela. Magna est Falsitas et praevalebit. 
 
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