Chapter IX: Act V: , Sc. 4,) he remarks, (p. 73,) "Sir W. Gascoigne was continued (1)

as Lord Chief Justice _in the new reign_; but, according to law and custom, he was removable, and he no doubt expected to be removed, from his office." Lord Campbell has yet to rival the fifth wife of the missionary who wrote the lives of "her predecessors"; but surely _he_ should have known that the expectations which he attributes to Sir William Gascoigne were not disappointed, and that (although the contrary is generally believed) the object of Falstaff's menace was superseded (by Sir William Hankford) March 29th, 1413, just eight days after the prince whom he committed to prison came to the throne,--a removal the promptness of which would satisfy the strictest disciplinarian in the Democratic party. The Records show this; but his Lordship need not have gone to them; he would have found it mentioned, and the authority cited, by Tyler in his "Memoirs of Henry the Fifth."

And while we are considering the disparity between his Lordship's performances and his pretensions, we may as well examine his fitness to bring about a "fusion of Law and Literature," which he says, with some reason, have, like Law and Equity, been too long kept apart in England. We fear, that, whatever may be the excellence of his Lordship's intentions, he must set himself seriously to the task of acquiring more skill in the use of the English tongue, and a nicer discrimination between processes of thought, before his writings will prove to be the flux that promotes that fusion.

For, in the third paragraph of his letter, he says to Mr. Collier, "I cannot refuse to communicate to you my _sentiments_ upon the subject," and in the following sentence adds, that this communication of his "_sentiments_" will drive from his mind "the _recollection_ of the wranglings of Westminster Hall." His Lordship probably meant to refer to the communication of his _opinions_, for which word "sentiments" is not usually substituted, except by gentlemen who remark with emphasis, "Them's my sentiments"; and he also probably intended to allude to the _memory_ of the wranglings of which he is professionally a witness,--having forgotten, for a moment, that recollection is a purely voluntary act, and not either a condition or a faculty of the mind.

Again, when his Lordship says, (p. 18,) "That during this interval (A.D. 1579 to 1586) he [Shakespeare] was merely an operative, earning his bread by manual labor, in stitching gloves, sorting wool, or killing calves, no sensible man can possibly _imagine_" we applaud the decision; but can hardly do as much for the language in which it is expressed. Lord Campbell quite surely meant to say that no man could possibly _believe_, or _suppose_, or _assent to_ the proposition which he sets forth; and when (on p. 26) he again says, "I do not _imagine_ that when he [Shakespeare] went up to London, he carried a tragedy in his pocket," there can be no doubt that his Lordship meant to say, "I do not _think_ that when," etc. He should again have gathered from his Shakespearean studies a lesson in the exact use of language, and have learned from the lips of "that duke hight Theseus" that imagination has nothing to do with assent to or dissent from a proposition, but that

"The lunatic, the lover, and the poet
Are of imagination all compact:
* * * * *
And, as imagination bodies forth
The forms of things unknown, the poet's pen
Turns them to shapes, and gives to airy nothing
A local habitation and a name."

_A Midsummer Night's Dream_, Act V. Sc. 1.

We would not protract this finding of faults, and will only add, that, when his Lordship says, (p. 116,) that Henry V. "astonished the world with his universal _wisdom_" he entirely overlooks the fact, that wisdom is a faculty of the mind, or, rather, a mode of intellectual action, of which universality can no more be predicated than of folly, or of honesty, or of muscular strength; and that it is not knowledge, or at all like knowledge; which, indeed, is often acquired in a very remarkable degree by persons eminent for unwisdom. Lord Campbell might as well have said that Henry V. astonished the world with his universal prowess in the battle-field.

The censure to which Mr. Rushton's pamphlet is occasionally open in regard to style may properly be averted by the modesty of its tone and its unpretending character.

But to pass from the manner to the matter of the learned gentlemen who appear on behalf of Malone's theory. Lord Campbell, after stating, in the introductory part of his letter, that in "The Two Gentlemen of Verona," "Twelfth Night," "Julius Caesar," "Cymbeline," "Timon of Athens," "The Tempest," "King Richard II.," "King Henry V.," "King Henry VI., Part I.," "King Henry VI., Part III.," "King Richard III.," "King Henry VIII.," "Pericles," and "Titus Andronicus,"--fourteen of the thirty-seven dramas generally attributed to Shakespeare,--he finds "nothing that fairly bears upon this controversy," goes on to produce from the remaining plays, _seriatim_, such passages as in his judgment do bear upon the question, and to remark upon them, thus isolated and disconnected from each other. Mr. Rushton is more methodic and logical. He does not merely quote or cite all the passages which he has noticed in which legal terms occur, but brings together all such as contain the same terms or refer to kindred proceedings or instruments; and he thus presents his case with much more compactness and consequent strength than results from Lord Campbell's loose and unmethodical mode of treating the subject. We can arrive at the merits of the case on either presentation only by an examination of some of the more important of the passages cited.

Lord Campbell, as we have just seen, mentions "Henry VIII." as one of the fourteen plays in which he has found nothing which relates to the question in hand; but Mr. Rushton opens his batteries with the following passage from the very play just named; and to most readers it will seem a bomb of the largest dimensions, sent right into the citadel of his opponents:--

"_Suff_. Lord Cardinal, the king's further pleasure is,--
Because all those things you have done of late
By your power legatine within this kingdom
Fall into compass of a _premunire_,--
That therefore such a writ be sued against you,
To forfeit, all your goods, lands, tenements,
Chattels, and whatsoever, and to be
Out of the king's protection:--this is my
charge."

_King Henry VIII_. Act iii. Sc. 2.

We shall first remark, that, in spite of his declaration as to "Henry VIII.," Lord Campbell does cite and quote this very passage (p. 42); and, indeed, he must have been as unappreciative as he seems to have been inaccurate, had he failed to do so; for, upon its face, it is, with one or two exceptions, the most important passage of the kind to be found in Shakespeare's works. _Premunire_ is thus defined in an old law-book which was accessible to Shakespeare:--

"Premunire is a writ, and it lieth where any man sueth any other in the spirituall court for anything that is determinable in the King's Court, and that is ordeined by certaine statutes, and great punishment therefore ordeined, as it appeareth by the same statutes, viz., that he shall be out of the King's protection, and that he be put in prison without baile or mainprise till that he have made fine at the King's will, and that his landes and goods shal be forfait, if he come not within ij. moneths."--_Termes de la Ley_, 1595, fol. 144.

The object of the writ was to prevent the abuse of spiritual power. Now, here is a law-term quite out of the common, which is used by Shakespeare with a well-deployed knowledge of the power of the writ of which it is the name. Must we, therefore, suppose that Shakespeare had obtained his knowledge of the purpose and the power of this writ in the course of professional reading or practice? If we looked no farther than Shakespeare's page, such a supposition might seem to be warranted. But if we turn to Michael Drayton's "Legend of Great Cromwell," first published, we believe, in 1607, but certainly some years before "Henry VIII." was written, and the subject of which figures in that play, we find these lines,--

"This Me to urge the _Premunire_ wonne,
Ordain'd in matters dangerous and hie;
In t' which the heedlesse Prelacie were runne
That back into the Papacie did fie."

Ed. 1619, p. 382.

Here is the very phrase in question, used with a knowledge of its meaning and of the functions of the writ hardly less remarkable than that evinced in the passage from "Henry VIII.," though expressed in a different manner, owing chiefly to the fact that Drayton wrote a didactic poem and Shakespeare a drama. But Drayton is not known to have been an attorney's clerk, nor has he been suspected, from his writings, or any other cause, to have had any knowledge of the law. Both he and Shakespeare, however, read the Chronicles. Reading men perused Hall's and Holinshed's huge black-letter folios in Queen Elizabeth's time with as much interest as they do Macaulay's or Prescott's elegant octavos in the reign of her successor, Victoria. Shakespeare drew again and again upon the former for the material of his historical plays; and in writing "Henry VIII.," he adopted often the very language of the Chronicler. The well-known description of Wolsey, which he puts into the mouth of Queen Katherine,--

"He was a man
Of an unbounded stomach, ever ranking
Himself with princes; one that by suggestion
Tith'd all the kingdom: Simony was fair play:
His own opinion was his law: I' the presence
He would say untruths; and be ever double,
Both in his words and meaning; He was never,
But where he meant to ruin, pitiful:
His promises were, as he then was, mighty;
But his performance, as he is now, nothing:
Of his own body he was ill, and gave
The clergy ill example,"--

is little more than the following paragraph from Holinshed put into verse:--

"This cardinal! (as you may perceive in this storie) was of a great stomach, for he compted himselfe equall with princes, and by craftie suggestion gat into his hands innumerable treasure: he forced little on simonie, [i.e., regarded it as of little consequence,] and was not pittifull, and stood affectionate in his owne opinion: in open presence he would lie and saie untruth, and was double both in speach and meaning: he would promise much and performe little: he was vicious of his bodie, and gave the clergie evill example."--Ed. 1587, vol. iii. p. 622.

Turning back from the page on which the Chronicler comments upon the life of the dead prime-minister, to that on which he records his fall, we find these passages:--

"In the meane time, the king, being informed that all those things that the cardinall had doone by his _power legatine within this realme_ were in the case of the _premunire_ and provision, caused his attornie, Christopher Hales, to sue out a writ of premunire against him. ...After this in the king's bench his matter for the premunire being called upon, two atturneis which he had authorised by his warrant, signed with his owne hand, confessed the action, and so had judgement to _forfeit all his lands, tenements, goods, and cattels, and to be out of the king's protection_."--Ib. p. 909.

If the reader will look back at the passage touching the premunire, quoted above, he will see that these few lines from Raphael Holinshed are somewhat fatal to an argument in favor of Shakespeare's "legal acquirements," in so far as it rests in any degree upon the use of terms or the knowledge displayed in that passage. Shakespeare and Drayton are here in the same boat, though "not with the same sculls."

Before we shelve Holinshed,--for the good Raphael's folios are like Falstaff in size, if not in wit, and, when once laid flat-long, require levers to set them up on end again,--let us see if he cannot help us to account for more of the "legalisms" that our Lord Chief Justice and our barrister have "smelt out" in Shakespeare's historical plays. Mr. Rushton quotes the following passages from "Richard II.":--

"_York_. Is not Gaunt dead? and doth not
Hereford live?

* * * * *

Take Hereford's rights away, and take from time
His _charters_ and his _customary rights_;
Let not to-morrow, then, ensue to-day:
Be not thyself; for how art thou a king,
But by fair sequence and succession?
Now, afore God, (God forbid I say true!)
If you do wrongfully seize Hereford's rights,
Call in the _letters patents_ that he hath
By his _attorneys-general_ to sue
_His livery_, and deny his _offer'd homage_,
You pluck a thousand dangers on your head."
Act ii. Sc. I.

"_Bol_. I am denied to _sue my livery_ here,
And yet my _letters patents_ give me leave:
My father's _goods are all distrain'd_ and sold;
And these, and all, are all amiss employed.
What would you have me do? I am a subject,
And challenge law: _Attorneys are denied_ me;
And therefore personally I lay my claim
To my _inheritance_ of free descent."--_Ib_. Sc. 3.

And Lord Campbell, although he passes by these passages in "Richard II.," quotes, as important, from a speech of Hotspur's in the "First Part of Henry IV.," the following lines, which, it will be seen, refer to the same act of oppression on the part of Richard II. towards Bolingbroke:--

"He came but to be Duke of Lancaster,
To _sue his livery_ and beg his bread."
Act iv. Sc. 3.

But, here again, Shakespeare, although he may have known more law than Holinshed, or even Hall, who was a barrister, only used the law-terms that he found in the paragraph which furnished him with the incident that he dramatized. For, after recording the death of Gaunt, the Chronicle goes on:--

"The death of this duke gave occasion of increasing more hatred in the people of this realme toward the king; for he seized into his hands all the rents and reuenues of his lands which ought to have descended vnto the duke of Hereford by lawfull _inheritance_, in reuoking _his letters patents_ which he had granted to him before, by virtue whereof he might make his _attorneis generall_ to _sue liverie_ for him of any manner of _inheritances_ or possessions that might from thencefoorth fall unto him, and that his homage _might_ be respited with making reasonable fine," etc.--HOLINSHED, Ed. 1587, p. 496.

The only legal phrase, however, in these passages of "Richard II," which seems to imply very extraordinary legal knowledge, is the one repeated in "Henry IV.,"--"sue his livery,"--which was the term applied to the process by which, in the old feudal tenures, wards, whether of the king or other guardian, on arriving at legal age, could compel a delivery of their estates to them from their guardians. But hence it became a metaphorical expression to mean merely the attainment of majority, and in this sense seems to have been very generally understood and not uncommonly used. See the following from an author who was no attorney or attorney's clerk:--

"If Cupid
Shoot arrows of that weight, I'll swear devoutly
H'as _sued his livery_ and is no more a boy."
FLETCHER'S _Woman's Prize_, Act ii. Sc. 1.

And this, from the works of a divine:--

"Our little Cupid hath _sued livery_
And is no more in his minority."
DONNE'S Eclogues, 1613.

Spenser, too, uses the phrase figuratively in another sense, in the following passage,--which may be one of those which Chalmers had in his eye, when, according to Lord Campbell, he "first suggested" that Shakespeare was once an attorney's clerk:--

"She gladly did of that same Babe accept,
As of her owne by _liverey and seisin_;
And having over it a litle wept,
She bore it thence, and ever as her owne it kept."
_Faërie Queene_, B. VI. C. iv. st. 37.

So, for an instance of the phrase "fee," which Lord Campbell notices as one of those expressions and allusions which "crop out" in "Hamlet," "showing the substratum of law in the author's mind,"--

"We go to gain a little patch of ground,
That hath in it no profit but the name.
To pay five ducats, five, I would not farm it;
Nor will it yield to Norway or the Pole
A ranker rate, should it be sold _in fee_,"--
Act iv. Sc. 2.

and of which Mr. Rushton quotes several instances in its fuller form, "fee simple,"--we have but to turn back a few stanzas in this same canto of the "Faërie Queene," to find one in which the term is used with the completest apprehension of its meaning:--

"So is my lord now _seiz'd of_ all the land,
As _in his fee_, with peaceable _estate_,
And quietly doth hold it in his hand,
Ne any dares with him for it debate."
_Ib_. st. 30.

And in the next canto:--

"Of which the greatest part is due to me,
And heaven itself, by heritage _in fee_."
_Ib._ C. vii. st. 15.

And in the first of these two passages from the "Faërie Queene," we have two words, "seized" and "estate," intelligently and correctly used in their purely legal sense, as Shakespeare himself uses them in the following passages, which our Chief Justice and our barrister have both passed by, as, indeed, they have passed many others equally worthy of notice:--

"Did forfeit with his life all those his lands
Which he stood _seiz'd of_ to the conqueror."
_Hamlet_, Act i. Sc. 1.

"The terms of our _estate_ may not endure
Hazard so near us," etc.--_Ib_. Act iii. Sc. 3.

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 favor 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 my 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 knew no more of law than he 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 hath 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 now-a-days 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, and 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 unlawful 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 blush'd 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 their use of this phrase, unusual as it now seems to us, have only exemplified the custom referred to by our contemporary legal 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," "testament," "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 sealed, 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 covenants 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 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 to-night hath hoarded 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 "Changeling,"--first published in 1653, but written many years before. Jasperino, seeing a lady, calls out,--

"Yonder's another vessel: Ile _board_ her:
if she be _lawfall 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 then and there have been put mercilessly to the sword.

But what shall we think of the 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 judgement_ 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_; for I did
but _seal_ once to a thing, and I was never mine
own man since."--2 _Henry VI_. Act vi. Sc. 2.

Upon citing which, his 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 vestrymen, they might bring it about.

In aid of his Lordship's further studies, we make the following suggestion. He doubtless knows that one of the earliest among our small stock of traditions about Shakespeare is that recorded by Aubrey as being derived from Stratford authority, that his father was a butcher, and that "when he was a boy he exercised his father's trade, but when he kill'd a calfe, he wold do it in a high style, and make a speech." When his Lordship considers this old tradition in connection with the following passage in one of Shakespeare's earliest plays,--

"Who finds the heifer dead and bleeding fresh,
And sees fast by a butcher with an axe,
But will suspect 'twas he that made the
slaughter,"--

2 _Henry VI._ Act iii. Sc. 2.

how can he resist the conclusion, that, although the divine Williams may not have run with "Forty," it is highly probable that he did kill for Keyser? Let his Lordship also remember that other old tradition, mentioned by Rowe, that John Shakespeare was "a considerable dealer in wool," and that William, upon leaving school, "seems to have given entirely into that way of living which his father proposed to him"; and remember, also, this passage from another of Shakespeare's earliest plays:--

"He is too picked, too spruce, too affected,
too odd, as it were, too peregrinate, as I may
call it...He draweth out the _thread of
his verbosity finer than the staple of his argument._"
--_Love's Labor's Lost_. Act v. Sc. 1.

Is there not a goodly part of the wool-stapler's craft, as well as of the art of rhetoric, compressed into that one sentence by the hydraulic power of Shakespeare's genius? Does it not show that he was initiated in the mysteries of long and short staple before he wrote this, perhaps, his earliest play? But look again at the following passage, also written when his memory of his boyish days was freshest, and see the evidence that _both_ these traditions were well founded:--

"So, first, the harmless sheep doth yield _his fleece;_
And, next, _his throat unto the butcher's knife."_

Could these lines have been written by a man who had not been both a considerable dealer in wool, and a butcher who killed a calf in high style and made a speech? Who can have a doubt about this matter, when he appreciates rightly the following passage in "Hamlet," (Act v. Sc. 2,) and is penetrated with the wisdom of two wise commentators upon it?--

'Our indiscretion sometimes serves us well,
When our deep plots do pall; and that should teach us
There's a divinity that shapes our ends,
Rough-hew them how we will.'

Dr. Farmer informs me that these words are merely technical. A wool-man, butcher, and dealer in _skewers_ lately observed to him that his nephew (an idle lad) could only _assist_ him in making them;--he could _rough hew_ them, but I was obliged to shape their ends! To shape the ends of wool-skewers, i.e., to _point_ them, requires a degree of skill; any one can _rough-hew_ them. Whoever recollects the profession of Shakespeare's father will admit that his son might be no stranger to such terms. "I have frequently seen packages of wool pinn'd up with skewers."--STEEVENS.

Lucky wool-man, butcher, and dealer in skewers! to furnish at once a comment upon the great philosophical tragedy and a proof that its author and you were both of a trade! Fortunate Farmer, to have heard the story! and most sagacious Steevens, to have penetrated its hidden meaning, recollecting felicitously that you had seen packages of wool pinn'd up with skewers! But, O wisest, highest-and-deepest-minded Shakespeare, to have remembered, as you were propounding, Hamlet-wise, one of the great unsolvable mysteries of life, the skewers that you, being an idle lad, could but rough-hew, leaving to your careful father the skill-requiring task to shape their ends!--ends without which they could not have bound together the packages of wool with which you loaded the carts that backed up to the door in Henley Street, or have penetrated the veal of the calves that you killed in such a high style and with so much eloquence, and which loaded the tray that you daily bore on your shoulder to the kitchen-door of New Place, yet unsuspecting that you were to become its master!

Yet we would not too strongly insist upon this evidence, that Shakespeare in his boyhood served both as a butcher's and a wool-stapler's apprentice; for we venture to think that we have discovered evidence in his works that their author was a tailor. For, in the first place, the word "tailor" occurs no less than thirty-five times in his plays. [The reader is to suppose that we are able to record this fact by an intimate acquaintance with every line that Shakespeare wrote, and by a prodigious effort of memory, and not by reference to Mrs. Clark's Concordance.] "Measures" occurs nearly thrice as often; "shears" is found no less than six times; "thimble," three times; "goose," no less than twenty-seven times!--and when we find, that, in all his thirty-seven plays, the word "cabbage" occurs but once, and then with the deliberate explanation that it means "worts" and is "good cabbage," may we not regard such reticence upon this tender point as a touching confirmation of the truth of our theory? See, too, the comparison which Shakespeare uses, when he desires to express the service to which his favorite hero, Prince Hal, will put the manners of his wild companions:--

"So, like gross terms,
The Prince will, in the perfectness of time,
Cast off his followers; and their memory
Shall as a _pattern or a measure_ live
By which his Grace must mete the lives of
others."

2 _Henry IV._, Act iv. Sc. 4.

And in writing one of his earliest plays, Shakespeare's mind seems to have been still so impressed with memories of his former vocation, that he made the outraged Valentine, as his severest censure of Proteus, reproach him with being badly dressed:--

"Ruffian, let go that rude, uncivil touch!
Thou friend _of an ill fashion!_"

Act v. Sc. 4.

Cleopatra, too, who, we may be sure from her conduct, was addicted to very "low necks," after Antony's death becomes serious, and declares her intention to have something "after the high Roman fashion." And what but a reminiscence of the disgust which a tailor of talent has for mending is it that breaks out in the Barons' defiant message to King John?--

"The King hath dispossess'd himself of us;
We will not line his thin bestained cloak."

_King John_, Act iv. Sc. 3.

A memory, too, of the profuse adornment with which he had been called upon to decorate some very tender youth's or miss's fashionable suit intrudes itself even in his most thoughtful tragedy:--

"The canker galls the infants of the Spring
Too oft before their _buttons_ be disclos'd."

_Hamlet_, Act i. Sc. 3.

In "Macbeth," desiring to pay the highest compliment to Macduff's judgment and knowledge, he makes Lennox say,--

"He is noble, wise, judicious, and best knows
_The fits of the season_."--Act iv. Sc. 2.

Not the last fall or last spring style, be it observed, but that of the season, which it is most necessary for the fashionable tailor to know. In writing the first scene of the "Second Part of Henry IV.," his mind was evidently crossed by the shade of some over-particular dandy, whose fastidious nicety as to the set of his garments he had failed to satisfy; for he makes Northumberland compare himself to a man who,

"_Impatient of his fit_, breaks like a fire
Out of his keeper's arms."

And yet we must not rely too much even upon evidence so strong and so cumulative as this. For it would seem as if Shakespeare must have been a publisher, and have known the anxiety attendant upon the delay of an author not in high health to complete a work the first part of which has been put into the printer's hands. Else, how are we to account for his feeling use of this beautiful metaphor in "Twelfth Night"?

"Lady, you are the cruell'st she alive,
If you will lead these graces to the grave,
And _leave the world no copy_."

Act i. Sc. 5.

But this part of our subject expands before us, and we must stay our hand. We merely offer these hints as our modest contribution to the attempts to decide from phrases used in Shakespeare's works what were his avocations before he became a playwright, and return to Lord Campbell and Mr. Rushton.

When Malone, in 1790, broached his theory, that Shakespeare had been an attorney's clerk, he cited in support of it twenty-four passages. Mr. Rushton's pamphlet brings forward ninety-five, more or less; Lord Campbell's book, one hundred and sixty. But, from what he has seen of it, the reader will not be surprised at learning that a large number of the passages cited by his Lordship must be thrown aside, as having no bearing whatever on the question of Shakespeare's legal acquirements. They evince no more legal knowledge, no greater familiarity with legal phraseology, than is apparent in the ordinary conversation of intelligent people generally, even at this day. Mr. Rushton, more systematic than his Lordship, has been also more careful; and from the pages of both we suppose that there might be selected a round hundred of phrases which could be fairly considered as having been used by Shakespeare with a consciousness of their original technicality and of their legal purport. This is not quite in the proportion of three to each of his thirty-seven plays; and if we reckon his sonnets and poems according to their lines, (and both Mr. Rushton and Lord Campbell cite from them,) the proportion falls to considerably less than three. But Malone's twenty-four instances are of nearly as much value in the consideration of the question as Lord Campbell's and Mr. Rushton's hundred; for the latter gentlemen have added little to the strength, though considerably to the number, of the array on the affirmative side of the point in dispute; and we have seen, that, of the law-phrases cited by them from Shakespeare's pages, the most recondite, as well as the most common and simple, are to be found in the works of the Chroniclers, whose very language Shakespeare used, and in those of the playwrights his contemporaries.

Our new advocates of the old cause, however, quote two passages which, from the freedom with which law-phrases are scattered through them, it is worth while to reproduce here. The first is the well-known speech in the grave-digging scene of "Hamlet":--

"_Ham_. There's another: Why may not that be the skull of a lawyer? Where be his quiddits now, his quillets, his _cases_, his _tenures_, and his tricks? why does he suffer this rude knave, now, to knock him about the sconce with a dirty shovel, and will not tell him of his _action of battery_? Humph! This fellow might be in's time a great buyer of land, with his _statutes_, his _recognizances_, his _fines_, his _double vouchers_, his _recoveries_: Is this the _fine_ of his _fines_, and the _recovery_ of his _recoveries_, to have his fine pate full of fine dirt? will his _vouchers_ vouch him no more of his _purchases_, and _double ones_, too, than the length and breadth of a pair of _indentures_? The very _conveyances_ of his lands will hardly lie in this box; and must the _inheritor_ himself have no more? ha?"--Act v. Sc. 1.

The second is the following Sonnet, (No. 46,) not only the language, but the very fundamental conceit of which, it will be seen, is purely legal:--

"Mine Eye and Heart are at a mortal war
How to divide the conquest of thy sight;
Mine Eye my Heart thy picture's sight would _bar_,
My Heart mine Eye the freedom of that right.
My Heart doth _plead_ that thou in him dost lie
(A closet never pierc'd with crystal eyes);
But the _defendant_ doth that _plea_ deny,
And says in him thy fair appearance lies.
To 'cide this title is _impanelled_
A _quest_ of thoughts, all tenants to the Heart,
And by their _verdict_ is determined
The clear Eye's _moiety_, and the dear Heart's part;
As thus: Mine Eye's due is thine outward part,
And my Heart's right, thine inward love of heart."

It would seem, indeed, as if passages like these must be received as evidence that Shakespeare had more familiarity with legal phraseology, if not a greater knowledge of it, than could have been acquired except by habitual use in the course of professional occupation. But let us see if he is peculiar even in this crowding of many law-terms into a single brief passage. We turn to the very play open at our hand, from which we have quoted before, (and which, by the way, we have not selected as exceptional in this regard,) "The Miseries of Enforced Marriage," and find the following passage in Act V.:--

"_Doctor_. Now, Sir, from this your _oath and bond,_
Faith's pledge and _seal_ of conscience, you have run,
Broken all _contracts_, and _forfeiture_
Justice hath now in _suit_ against your soul:
Angels are made the _jurors_, who are _witnesses_
Unto the _oath_ you took; and God himself,
Maker of marriage, He that hath _seal'd the deed_,
As a firm _lease_ unto you during life,
_Sits now as Judge_ of your transgression:
The world _informs against you_ with this voice.--
If such sins reign, what mortals can rejoice?
_Scarborow_. What then ensues to me?
_Doctor_. A heavy _doom_, whose _execution's_
Now _served upon_ your conscience," etc.
p. 91, D.O.P., Ed. 1825.

Indeed, the hunting of a metaphor or a conceit into the ground is a fault characteristic of Elizabethan literature, and one from which Shakespeare's boldness, no less than his genius, was required to save him; and we have seen already how common was the figurative use of law-phrases among the poets and dramatists of his period. Hamlet's speech and the Forty-sixth Sonnet cannot, therefore, be accepted as evidence of his attorneyship, except in so far as they and like passages may be regarded as giving some support to the opinion that Shakespeare was but one of many in his time who abandoned law for letters.

For we object not so much to the conclusion at which Lord Campbell arrives as to his mode of arriving at it. His method of investigation, which is no method at all, but the mere noting of passages in the order in which he found them in looking through Shakespeare's works, is the rudest and least intelligent that could have been adopted; and his inference, that, because Shakespeare makes Jack Cade lament that the skin of an innocent lamb should be made parchment, and affirm that it is not the bee, but the bee's wax, that stings, therefore he must have been employed to write deeds on parchment and append wax to them in the form of seals, is a fair specimen both of the acuteness and the logic which his Lordship displays in this his latest effort to unite Law and Literature.

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

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

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

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