Sunday, October 31, 2010


OCTOBER 31, 2010
Among the most important passages cited by both our authors is one that every reader of Shakespeare will recollect, when it is mentioned to him—Hamlet’s speech over the, skull in the grave-digging scene. But although this speech is remarkable for the number of law terms used in it, only one of them seems to evince any recondite knowledge of the law. This is the word "statutes," in the following sentence:

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

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

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

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

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

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

Tut, you are master Dryfab, the merchant: your skill is greater in cony-skins and woolpacks than in gentlemen. His lands be in statutes: you merchants were wont to be merchant staplers; but now gentlemen have gotten up the trade; for there is not one gentleman amongst twenty but his lands be engaged in twenty statutes staple.
—Act i. Sc. 3.

And in the very first speech of the first scene of the same play, the husband of this virtuous and careful dame says of the same "Gerardine," (who, as he is poor and a gentleman, it need hardly be said, is about the only honest man in the piece,)—"His lands be in statutes." And that poor debauchee, Robert Greene, who [93] knew no more of law than be might have derived from such limited, though authentic information as to its powers over gentlemen who made debts without the intention of paying them, as he may have received at frequent unsolicited interviews with a sergeant or a bum-bailiff, has this passage in his Quip for an Upstart Courtier, 1592:

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

Very profound legal studies, therefore, cannot be predicated of Shakespeare on the ground of the knowledge which he has shown of this peculiar kind of statute.

It is not surprising that both our legal Shakespearean commentators cite the following passage from As You Like It in support of their theory; for in it the word "extent" is used in a sense so purely technical, that not one in a thousand of Shakespeare’s lay readers nowadays would understand it without a note:

Duke F. Well, push him out of doors,
And let my officers of such a nature
Make an extent upon his house and lands.
—Act iii. Sc. 1.

"Extent," as Mr. Rushton remarks, is directed to the sheriff to seize and value lands and goods to the utmost extent; "an extendi facias," as Lord Campbell authoritatively says, "applying to the house and lands as a fieri facias would apply to goods and chattels, or a capias ad satisfaciendum to the person." But that John Fletcher knew, as well as my Lord Chief Justice, or Mr. Barrister Rushton, or even, perhaps, William Shakespeare, all the woes that followed an extent, the elder Mr. Weller at least would not have doubted, had he in the course of his literary leisure fallen upon the following passage in Wit Without Money (1630):

Val. Mark me, widows
Are long extents in law upon men’s livings,
Upon their bodies’ winding-sheets: they that enjoy ’em.
Lie but with dead men’s monuments, find beget
Only their own ill epitaphs.
—Act ii. Sc. 2.

George Wilkins, too, the obscure author of The Miseries of Enforced Marriage, uses the term with as full an understanding, though not with so feeling an expression or so scandalous an illustration of it, in the following passage from the fifth act of that play, which was produced about 1605 or 1606:

"They are usurers; they come yawning for money; and the sheriff with them is come to serve an extent upon your land, and then seize your body by force of execution."

Another seemingly recondite law-phrase used by Shakespeare, which Lord Campbell passes entirely by, though Mr. Rushton quotes three instances of it, is "taken with the manner." This has nothing to do with good manners or ill manners; but, in the words of the old law-book before cited,

"is when a theefe hath stollen and is followed with hue and crie and taken, having that found about him which he stole—that is called ye maynour. And so we commonly use to saye, when wee finde one doing of an unlawfull act, that we tooke him with the maynour or manner." —Termes de la Ley, 1595, fol. 126, b.

Shakespeare, therefore, uses the phrase with perfect understanding, when he makes Prince Hal say to Bardolph,

O villain, thou stolest a cup of sack eighteen years ago, and wert taken with the manner, and ever since thou hast blushed extempore."
—1 Henry IV. Act ii. Sc. 4.

But so Fletcher uses the same phrase, and as correctly, when he makes Perez say to Estefania, in Rule a Wife and Have a Wife,

How like a sheep-biting rogue, taken I’ the manner,
And ready for the halter, dost thou look now!
—Act v. Sc. 4.

But both Fletcher and Shakespeare, in [94] their use of this phrase, unusual as it now seems to us, have only exemplified the custom referred to by our contemporary local authority,—"And so we commonly use to saye, when wee finde one doing of an unlawfull act, that we tooke him with the maynour"; though this must doubtless be understood to refer to persons of a certain degree of education and knowledge of the world.

It seems, then, that the application of legal phraseology to the ordinary affairs of life was more common two hundred and fifty years ago than now; though even now-a-days it is much more generally used in the rural districts than persons who have not lived in them would suppose. There law shares with agriculture the function of providing those phrases of common conversation which, used figuratively at first, and often with poetic feeling, soon pass into mere thought-saving formulas of speech, and which in large cities are, chiefly drawn from trade and politics. And if in the use of the law-terms upon which we have remarked, which are the more, especially technical and remote from the language, of unprofessional life, among all those which occur in Shakespeare’s works, he was not singular, but, as we have seen, availed himself only of a knowledge which other contemporary poets and playwrights possessed, how much more easily might we show that those commoner legal words and phrases, to remarks upon Shakespeare’s use of which both the books before us (and especially Lord Campbell’s) are mainly devoted, "judgment," "fine," "these presents," "testaments," "attorney", "arbitrator", "fees," "bond," "lease," "pleading," "arrest," "session," "mortgage," "vouchers," "indentures," "assault," "battery," "dower," "covenant," "distrain," "bail," "non-suit", etc., etc., etc.—words which everybody understands—are scattered through all the literature of Shakespeare’s time, and, indeed, of all time since there were courts and suits at law!

Many of the passages which Lord Campbell cites as evidence of Shakespeare’s "legal acquirements" excite only a smile at the self-delusion of the critic who could regard them for a moment in that light. For instance, these lines in that most exquisite song in Measure for Measure—"Take, oh, take those lips away"—

But my kisses bring again
Seals of love, but seal’d in vain

and these from Venus and Adonis,

Pure lips, sweet seals in my soft lips imprinted,
What bargains may I make, still to be sealing!

to which Mr. Rushton adds from Hamlet

A combination and a form, indeed,
Where every god did seem to set his seal.
—Act iii. Sc. 4.
Now must your conscience my acquittance seal.
—Act iv. Sc. 7.

And because indentures and deeds and covenants are scaled, these passages must be accepted as part of the evidence that Shakespeare narrowly escaped being made Lord High Chancellor of England

It requires all the learning and the logic of a Lord Chief Justice and a London barrister to establish a connection between such premises and such a conclusion. And if Shakespeare’s lines smell of law, how strong is the odor of parchment and red tape in these, from Drayton’s Fourth Eclogue (1605):

Kindnesse againe with kindnesse was repay’d,
And with sweet kisses couenants were sealed.

We ask pardon of the reader for the production of contemporary evidence, that, in Shakespeare’s day, a knowledge of the significance and binding nature of a seal was not confined to him among poets; for surely a man must be both a lawyer and a Shakespearean commentator to forget that the use of seals is as old as the art of writing, and, perhaps, older, and that the practice has furnished a figure of speech to poets from the time when it was written, that out of the whirlwind [95] Job heard, "It is turned as clay to the seal," and probably from a period yet more remote.

And is Lord Campbell really in earnest in the following grave and precisely expressed opinion?

"In the next scene, [of Othello]Shakespeare gives us a very distinct proof that he was acquainted with Admiralty law, as well as with the procedure of Westminster Hall. Describing the feat of the Moor in carrying off Desdemona against her father’s consent, which might either make or mar his fortune, according as the act might be sanctioned or nullified, Iago observes,

Faith, he tonight hath boarded a land carack:
If it prove a lawful prize, he’s made forever;

the trope indicating that there would be a suit in the High Court of Admiralty to determine the validity of the capture"!—p. 91.

Why did not his Lordship go farther, and decide, that, in the figurative use of the term, "land carack," Shakespeare gave us very distinct proof that he was acquainted with maritime life, and especially with the carrying-trade between Spain and the West Indies? We respectfully submit to the court the following passage from Middleton and Rowley’s Changling—first published in 1653, but written many years before. Jasperino, seeing a lady, calls out,

Yonder’s another vessell: He board her: if she be lawfull prize, down goes her topsail.—Act i. Sig. B. 2.

And with it we submit the following points, and ask a decision in our favor. First, That they, the said Middleton and Rowley, have furnished, in the use of the phrase "lawful prize", in this passage, very distinct proof that they were acquainted with Admiralty law. Second, That, in the use of the other phrases, "board," and especially "down goes her topsail," they have furnished yet stronger evidence that they had been sailors on board armed vessels, and that the trope indicates, that, had not the vessel or lady in question lowered her topsail or top-knot, she would them and there, have been put mercilessly to the sword.

But what shall we think of thy acumen and the judgment of a Chief Justice, a man of letters, and a man of the world, who brings forward such passages as the following as part of the evidence bearing upon the question of Shakespeare’s legal acquirements?

Come; fear not you: good counsellors lack no clients.
—Measure for Measure. Act i. Sc. 2.

One that before the judgment carries poor souls to hell.
—Comedy of Errors. Act iv. Sc. 2.

Well, Time is the old Justice that examines all such offenders,—and let Time try.
—As You Like It. Act iv. Sc. 1.

And that old common arbitrator, Time.
—Troilus and Cressida. Act iv. Sc. 5.

No cock of mine; you crow too like a craven.
—Taming of the Shrew. Act ii. Sc. 1.

Bestial oblivion or some craven scruple.
—Hamlet. Act iv. Sc. 4.

By which last line, according to Lord Campbell, (p. 55) "Shakespeare shows that he was acquainted with the law for regulating ‘trials by battle’"!

But to proceed with the passages quoted in evidence:

Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o’er, should undo a man? Some say, the bee stings: but I say, ‘tis the bee’s wax; I did but seal once to a thing, and I was never mine own mine since."—2 Henry VI, Act vi. Sc. 2.

Upon citing which, Ms Lordship exclaims,

"Surely Shakespeare must have been employed to write deeds on parchment in courthand, and to apply the wax to them in the form of seals. One does not understand how he should, on any other theory of his bringing-up, have been acquainted with these details"!

One does not; but we submit to the court, that, if two were to lay their heads together after the manner of Sydney Smith’s vestryman, they might bring it about.

No comments:

Post a Comment