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Chapter 8

Shakespeare as a Lawyer {2}

The Plays and Poems of Shakespeare supply ample evidence that their
author not only had a very extensive and accurate knowledge of law,
but that he was well acquainted with the manners and customs of
members of the Inns of Court and with legal life generally.

"While novelists and dramatists are constantly making mistakes as
to the laws of marriage, of wills, and inheritance, to
Shakespeare's law, lavishly as he expounds it, there can neither be
demurrer, nor bill of exceptions, nor writ of error." Such was the
testimony borne by one of the most distinguished lawyers of the
nineteenth century who was raised to the high office of Lord Chief
Justice in 1850, and subsequently became Lord Chancellor. Its
weight will, doubtless, be more appreciated by lawyers than by
laymen, for only lawyers know how impossible it is for those who
have not served an apprenticeship to the law to avoid displaying
their ignorance if they venture to employ legal terms and to
discuss legal doctrines. "There is nothing so dangerous," wrote
Lord Campbell, "as for one not of the craft to tamper with our
freemasonry." A layman is certain to betray himself by using some
expression which a lawyer would never employ. Mr. Sidney Lee
himself supplies us with an example of this. He writes (p. 164):
"On February 15, 1609, Shakespeare . . . obtained judgment from a
jury against Addenbroke for the payment of No. 6, and No. 1. 5s.
0d. costs." Now a lawyer would never have spoken of obtaining
"judgment from a jury," for it is the function of a jury not to
deliver judgment (which is the prerogative of the court), but to
find a verdict on the facts. The error is, indeed, a venial one,
but it is just one of those little things which at once enable a
lawyer to know if the writer is a layman or "one of the craft."

But when a layman ventures to plunge deeply into legal subjects, he
is naturally apt to make an exhibition of his incompetence. "Let a
non-professional man, however acute," writes Lord Campbell again,
"presume to talk law, or to draw illustrations from legal science
in discussing other subjects, and he will speedily fall into
laughable absurdity."

And what does the same high authority say about Shakespeare? He
had "a deep technical knowledge of the law," and an easy
familiarity with "some of the most abstruse proceedings in English
jurisprudence." And again: "Whenever he indulges this propensity
he uniformly lays down good law." Of Henry IV., Part 2, he says:
"If Lord Eldon could be supposed to have written the play, I do not
see how he could be chargeable with having forgotten any of his law
while writing it." Charles and Mary Cowden Clarke speak of "the
marvelous intimacy which he displays with legal terms, his frequent
adoption of them in illustration, and his curiously technical
knowledge of their form and force." Malone, himself a lawyer,
wrote: "His knowledge of legal terms is not merely such as might
be acquired by the casual observation of even his all-comprehending
mind; it has the appearance of technical skill." Another lawyer
and well-known Shakespearean, Richard Grant White, says: "No
dramatist of the time, not even Beaumont, who was the younger son
of a judge of the Common Pleas, and who after studying in the Inns
of Court abandoned law for the drama, used legal phrases with
Shakespeare's readiness and exactness. And the significance of
this fact is heightened by another, that it is only to the language
of the law that he exhibits this inclination. The phrases peculiar
to other occupations serve him on rare occasions by way of
description, comparison or illustration, generally when something
in the scene suggests them, but legal phrases flow from his pen as
part of his vocabulary, and parcel of his thought. Take the word
'purchase' for instance, which, in ordinary use, means to acquire
by giving value, but applies in law to all legal modes of obtaining
property except by inheritance or descent, and in this peculiar
sense the word occurs five times in Shakespeare's thirty-four
plays, and only in one single instance in the fifty-four plays of
Beaumont and Fletcher. It has been suggested that it was in
attendance upon the courts in London that he picked up his legal
vocabulary. But this supposition not only fails to account for
Shakespeare's peculiar freedom and exactness in the use of that
phraseology, it does not even place him in the way of learning
those terms his use of which is most remarkable, which are not such
as he would have heard at ordinary proceedings at nisi prius, but
such as refer to the tenure or transfer of real property, 'fine and
recovery,' 'statutes merchant,' 'purchase,' 'indenture,' 'tenure,'
'double voucher,' 'fee simple,' 'fee farm,' 'remainder,'
'reversion,' 'forfeiture,' etc. This conveyancer's jargon could
not have been picked up by hanging round the courts of law in
London two hundred and fifty years ago, when suits as to the title
of real property were comparatively rare. And beside, Shakespeare
uses his law just as freely in his first plays, written in his
first London years, as in those produced at a later period. Just
as exactly, too; for the correctness and propriety with which these
terms are introduced have compelled the admiration of a Chief
Justice and a Lord Chancellor."

Senator Davis wrote: "We seem to have something more than a
sciolist's temerity of indulgence in the terms of an unfamiliar
art. No legal solecisms will be found. The abstrusest elements of
the common law are impressed into a disciplined service. Over and
over again, where such knowledge is unexampled in writers unlearned
in the law, Shakespeare appears in perfect possession of it. In
the law of real property, its rules of tenure and descents, its
entails, its fines and recoveries, their vouchers and double
vouchers, in the procedure of the Courts, the method of bringing
writs and arrests, the nature of actions, the rules of pleading,
the law of escapes and of contempt of court, in the principles of
evidence, both technical and philosophical, in the distinction
between the temporal and spiritual tribunals, in the law of
attainder and forfeiture, in the requisites of a valid marriage, in
the presumption of legitimacy, in the learning of the law of
prerogative, in the inalienable character of the Crown, this
mastership appears with surprising authority."

To all this testimony (and there is much more which I have not
cited) may now be added that of a great lawyer of our own times,
viz.: Sir James Plaisted Wilde, Q.C. created a Baron of the
Exchequer in 1860, promoted to the post of Judge-Ordinary and Judge
of the Courts of Probate and Divorce in 1863, and better known to
the world as Lord Penzance, to which dignity he was raised in 1869.
Lord Penzance, as all lawyers know, and as the late Mr. Inderwick,
K.C., has testified, was one of the first legal authorities of his
day, famous for his "remarkable grasp of legal principles," and
"endowed by nature with a remarkable facility for marshalling
facts, and for a clear expression of his views."

Lord Penzance speaks of Shakespeare's "perfect familiarity with not
only the principles, axioms, and maxims, but the technicalities of
English law, a knowledge so perfect and intimate that he was never
incorrect and never at fault . . . The mode in which this knowledge
was pressed into service on all occasions to express his meaning
and illustrate his thoughts, was quite unexampled. He seems to
have had a special pleasure in his complete and ready mastership of
it in all its branches. As manifested in the plays, this legal
knowledge and learning had therefore a special character which
places it on a wholly different footing from the rest of the
multifarious knowledge which is exhibited in page after page of the
plays. At every turn and point at which the author required a
metaphor, simile, or illustration, his mind ever turned FIRST to
the law. He seems almost to have THOUGHT in legal phrases, the
commonest of legal expressions were ever at the end of his pen in
description or illustration. That he should have descanted in
lawyer language when he had a forensic subject in hand, such as
Shylock's bond, was to be expected, but the knowledge of law in
'Shakespeare' was exhibited in a far different manner: it
protruded itself on all occasions, appropriate or inappropriate,
and mingled itself with strains of thought widely divergent from
forensic subjects." Again: "To acquire a perfect familiarity with
legal principles, and an accurate and ready use of the technical
terms and phrases not only of the conveyancer's office but of the
pleader's chambers and the Courts at Westminster, nothing short of
employment in some career involving constant contact with legal
questions and general legal work would be requisite. But a
continuous employment involves the element of time, and time was
just what the manager of two theatres had not at his disposal. In
what portion of Shakespeare's (i.e. Shakspere's) career would it be
possible to point out that time could be found for the
interposition of a legal employment in the chambers or offices of
practising lawyers?"

Stratfordians, as is well known, casting about for some possible
explanation of Shakespeare's extraordinary knowledge of law, have
made the suggestion that Shakespeare might, conceivably, have been
a clerk in an attorney's office before he came to London. Mr.
Collier wrote to Lord Campbell to ask his opinion as to the
probability of this being true. His answer was as follows: "You
require us to believe implicitly a fact, of which, if true,
positive and irrefragable evidence in his own handwriting might
have been forthcoming to establish it. Not having been actually
enrolled as an attorney, neither the records of the local court at
Stratford nor of the superior Courts at Westminster would present
his name as being concerned in any suit as an attorney, but it
might reasonably have been expected that there would be deeds or
wills witnessed by him still extant, and after a very diligent
search none such can be discovered."

Upon this Lord Penzance comments: "It cannot be doubted that Lord
Campbell was right in this. No young man could have been at work
in an attorney's office without being called upon continually to
act as a witness, and in many other ways leaving traces of his work
and name." There is not a single fact or incident in all that is
known of Shakespeare, even by rumor or tradition, which supports
this notion of a clerkship. And after much argument and surmise
which has been indulged in on this subject, we may, I think, safely
put the notion on one side, for no less an authority than Mr. Grant
White says finally that the idea of his having been clerk to an
attorney has been "blown to pieces."

It is altogether characteristic of Mr. Churton Collins that he,
nevertheless, adopts this exploded myth. "That Shakespeare was in
early life employed as a clerk in an attorney's office, may be
correct. At Stratford there was by royal charter a Court of Record
sitting every fortnight, with six attorneys, beside the town clerk,
belonging to it, and it is certainly not straining probability to
suppose that the young Shakespeare may have had employment in one
of them. There is, it is true, no tradition to this effect, but
such traditions as we have about Shakespeare's occupation between
the time of leaving school and going to London are so loose and
baseless that no confidence can be placed in them. It is, to say
the least, more probable that he was in an attorney's office than
that he was a butcher killing calves 'in a high style,' and making
speeches over them."

This is a charming specimen of Stratfordian argument. There is, as
we have seen, a very old tradition that Shakespeare was a butcher's
apprentice. John Dowdall, who made a tour in Warwickshire in 1693,
testifies to it as coming from the old clerk who showed him over
the church, and it is unhesitatingly accepted as true by Mr.
Halliwell-Phillipps. (Vol I, p. 11, and see Vol. II, p. 71, 72.)
Mr. Sidney Lee sees nothing improbable in it, and it is supported
by Aubrey, who must have written his account some time before 1680,
when his manuscript was completed. Of the attorney's clerk
hypothesis, on the other hand, there is not the faintest vestige of
a tradition. It has been evolved out of the fertile imaginations
of embarrassed Stratfordians, seeking for some explanation of the
Stratford rustic's marvellous acquaintance with law and legal terms
and legal life. But Mr. Churton Collins has not the least
hesitation in throwing over the tradition which has the warrant of
antiquity and setting up in its stead this ridiculous invention,
for which not only is there no shred of positive evidence, but
which, as Lord Campbell and Lord Penzance point out, is really put
out of court by the negative evidence, since "no young man could
have been at work in an attorney's office without being called upon
continually to act as a witness, and in many other ways leaving
traces of his work and name." And as Mr. Edwards further points
out, since the day when Lord Campbell's book was published (between
forty and fifty years ago), "every old deed or will, to say nothing
of other legal papers, dated during the period of William
Shakespeare's youth, has been scrutinized over half a dozen shires,
and not one signature of the young man has been found."

Moreover, if Shakespeare had served as clerk in an attorney's
office it is clear that he must have so served for a considerable
period in order to have gained (if indeed it is credible that he
could have so gained) his remarkable knowledge of law. Can we then
for a moment believe that, if this had been so, tradition would
have been absolutely silent on the matter? That Dowdall's old
clerk, over eighty years of age, should have never heard of it
(though he was sure enough about the butcher's apprentice), and
that all the other ancient witnesses should be in similar
ignorance!

But such are the methods of Stratfordian controversy. Tradition is
to be scouted when it is found inconvenient, but cited as
irrefragable truth when it suits the case. Shakespeare of
Stratford was the author of the Plays and Poems, but the author of
the Plays and Poems could not have been a butcher's apprentice.
Away, therefore, with tradition. But the author of the Plays and
Poems must have had a very large and a very accurate knowledge of
the law. Therefore, Shakespeare of Stratford must have been an
attorney's clerk! The method is simplicity itself. By similar
reasoning Shakespeare has been made a country schoolmaster, a
soldier, a physician, a printer, and a good many other things
beside, according to the inclination and the exigencies of the
commentator. It would not be in the least surprising to find that
he was studying Latin as a schoolmaster and law in an attorney's
office at the same time.

However, we must do Mr. Collins the justice of saying that he has
fully recognized, what is indeed tolerably obvious, that
Shakespeare must have had a sound legal training. "It may, of
course, be urged," he writes, "that Shakespeare's knowledge of
medicine, and particularly that branch of it which related to
morbid psychology, is equally remarkable, and that no one has ever
contended that he was a physician. (Here Mr. Collins is wrong;
that contention also has been put forward.) It may be urged that
his acquaintance with the technicalities of other crafts and
callings, notably of marine and military affairs, was also
extraordinary, and yet no one has suspected him of being a sailor
or a soldier. (Wrong again. Why even Messrs. Garnett and Gosse
'suspect' that he was a soldier!) This may be conceded, but the
concession hardly furnishes an analogy. To these and all other
subjects he recurs occasionally, and in season, but with
reminiscences of the law his memory, as is abundantly clear, was
simply saturated. In season and out of season now in manifest, now
in recondite application, he presses it into the service of
expression and illustration. At least a third of his myriad
metaphors are derived from it. It would indeed be difficult to
find a single act in any of his dramas, nay, in some of them, a
single scene, the diction and imagery of which is not colored by
it. Much of his law may have been acquired from three books easily
accessible to him, namely Tottell's Precedents (1572), Pulton's
Statutes (1578), and Fraunce's Lawier's Logike (1588), works with
which he certainly seems to have been familiar; but much of it
could only have come from one who had an intimate acquaintance with
legal proceedings. We quite agree with Mr. Castle that
Shakespeare's legal knowledge is not what could have been picked up
in an attorney's office, but could only have been learned by an
actual attendance at the Courts, at a Pleader's Chambers, and on
circuit, or by associating intimately with members of the Bench and
Bar."

This is excellent. But what is Mr. Collins' explanation. "Perhaps
the simplest solution of the problem is to accept the hypothesis
that in early life he was in an attorney's office (!), that he
there contracted a love for the law which never left him, that as a
young man in London, he continued to study or dabble in it for his
amusement, to stroll in leisure hours into the Courts, and to
frequent the society of lawyers. On no other supposition is it
possible to explain the attraction which the law evidently had for
him, and his minute and undeviating accuracy in a subject where no
layman who has indulged in such copious and ostentatious display of
legal technicalities has ever yet succeeded in keeping himself from
tripping."

A lame conclusion. "No other supposition" indeed! Yes, there is
another, and a very obvious supposition, namely, that Shakespeare
was himself a lawyer, well versed in his trade, versed in all the
ways of the courts, and living in close intimacy with judges and
members of the Inns of Court.

One is, of course, thankful that Mr. Collins has appreciated the
fact that Shakespeare must have had a sound legal training, but I
may be forgiven if I do not attach quite so much importance to his
pronouncements on this branch of the subject as to those of Malone,
Lord Campbell, Judge Holmes, Mr. Castle, K.C., Lord Penzance, Mr.
Grant White, and other lawyers, who have expressed their opinion on
the matter of Shakespeare's legal acquirements.

Here it may, perhaps, be worth while to quote again from Lord
Penzance's book as to the suggestion that Shakespeare had somehow
or other managed "to acquire a perfect familiarity with legal
principles, and an accurate and ready use of the technical terms
and phrases, not only of the conveyancer's office, but of the
pleader's chambers and the courts at Westminster." This, as Lord
Penzance points out, "would require nothing short of employment in
some career involving CONSTANT CONTACT with legal questions and
general legal work." But "in what portion of Shakespeare's career
would it be possible to point out that time could be found for the
interposition of a legal employment in the chambers or offices of
practising lawyers? . . . It is beyond doubt that at an early
period he was called upon to abandon his attendance at school and
assist his father, and was soon after, at the age of sixteen, bound
apprentice to a trade. While under the obligation of this bond he
could not have pursued any other employment. Then he leaves
Stratford and comes to London. He has to provide himself with the
means of a livelihood, and this he did in some capacity at the
theatre. No one doubts that. The holding of horses is scouted by
many, and perhaps with justice, as being unlikely and certainly
unproved; but whatever the nature of his employment was at the
theatre, there is hardly room for the belief that it could have
been other than continuous, for his progress there was so rapid.
Ere long he had been taken into the company as an actor, and was
soon spoken of as a 'Johannes Factotum.' His rapid accumulation of
wealth speaks volumes for the constancy and activity of his
services. One fails to see when there could be a break in the
current of his life at this period of it, giving room or
opportunity for legal or indeed any other employment. 'In 1589,'
says Knight, 'we have undeniable evidence that he had not only a
casual engagement, was not only a salaried servant, as many players
were, but was a shareholder in the company of the Queen's players
with other shareholders below him on the list.' This (1589) would
be within two years after his arrival in London, which is placed by
White and Halliwell-Phillipps about the year 1587. The difficulty
in supposing that, starting with a state of ignorance in 1587, when
he is supposed to have come to London, he was induced to enter upon
a course of most extended study and mental culture, is almost
insuperable. Still it was physically possible, provided always
that he could have had access to the needful books. But this legal
training seems to me to stand on a different footing. It is not
only unaccountable and incredible, but it is actually negatived by
the known facts of his career." Lord Penzance then refers to the
fact that "by 1592 (according to the best authority, Mr. Grant
White) several of the plays had been written. The Comedy of Errors
in 1589, Love's Labour's Lost in 1589, Two Gentlemen of Verona in
1589 or 1590, and so forth, and then asks, "with this catalogue of
dramatic work on hand . . . was it possible that he could have
taken a leading part in the management and conduct of two theatres,
and if Mr. Phillipps is to be relied upon, taken his share in the
performances of the provincial tours of his company--and at the
same time devoted himself to the study of the law in all its
branches so efficiently as to make himself complete master of its
principles and practice, and saturate his mind with all its most
technical terms?"

I have cited this passage from Lord Penzance's book, because it lay
before me, and I had already quoted from it on the matter of
Shakespeare's legal knowledge; but other writers have still better
set forth the insuperable difficulties, as they seem to me, which
beset the idea that Shakespeare might have found time in some
unknown period of early life, amid multifarious other occupations,
for the study of classics, literature and law, to say nothing of
languages and a few other matters. Lord Penzance further asks his
readers: "Did you ever meet with or hear of an instance in which a
young man in this country gave himself up to legal studies and
engaged in legal employments, which is the only way of becoming
familiar with the technicalities of practice, unless with the view
of practicing in that profession? I do not believe that it would
be easy, or indeed possible, to produce an instance in which the
law has been seriously studied in all its branches, except as a
qualification for practice in the legal profession."


This testimony is so strong, so direct, so authoritative; and so
uncheapened, unwatered by guesses, and surmises, and maybe-so's,
and might-have-beens, and could-have-beens, and must-have-beens,
and the rest of that ton of plaster of paris out of which the
biographers have built the colossal brontosaur which goes by the
Stratford actor's name, that it quite convinces me that the man who
wrote Shakespeare's Works knew all about law and lawyers. Also,
that that man could not have been the Stratford Shakespeare--and
WASN'T.

Who did write these Works, then?

I wish I knew.

Mark Twain

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