Shakespeare's Knowledge of Law
A Journey Through the History of the Arguments
(originally appeared in a slightly different form in The Oxfordian, October 2001)
I. Introduction
In 1996 I acquired a copy of Sir George Greenwood's 1908 book, The Shakespeare Problem Restated.1 I was surprised at the clarity and force of his arguments. The chapter on "Shakespeare as a Lawyer" struck me as particularly well argued, even though much of the argument was based on authority. A noted barrister and Member of Parliament, Greenwood claimed that Shakespeare's plays and poems "supply ample evidence that their author…had a very extensive and accurate knowledge of law" (371). He then cites several noted lawyers and judges, many of whom do not concern themselves with the authorship debate. He quotes Lord Campbell: "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" (371); Edmond Malone: "His knowledge of legal terms is not merely such as might be acquired by casual observation of even his all-comprehending mind" (373); and Richard Grant White: "No dramatist of the time . . . used legal phrases with Shakespeare's readiness and exactness. . . legal phrases flow from his pen as part of his vocabulary, and parcel of his thought" (373). I was impressed that this judge and these lawyers used penetrating qualitative statements rather than mere quantitative ones.
Searching for Refutations
Greenwood goes on to argue compellingly against those who claim that Shakespeare made mistakes in his use of legal terms. Finding his arguments generally persuasive, I was curious about how Greenwood had been refuted. I knew that Mark Twain had been so taken with Greenwood's book and the argument that Shakespeare had to have had formal legal training, that he had written in Is Shakespeare Dead?, "If I had under my superintendence a controversy appointed to decide whether Shakespeare wrote Shakespeare or not, I believe I would place before the debaters only the one question, Was Shakespeare ever a practicing lawyer? and leave everything else out" (66). I assumed that there would be a rich history of thoughtful refutations, especially since someone with the stature of Twain had advanced the proposition with such resolve. So I went in search of counter arguments.
I first turned to Samuel Schoenbaum's Shakespeare's Lives. I recalled that he had explored many of the lives of people behind the authorship debate and had singled out Twain for ridicule. But to my dismay, Schoenbaum dwells on personality (not surprising given the title of the book) and avoids substantive arguments. He never mentions Twain's remarks on Shakespeare's law, though he does mention that Twain read Greenwood's book, "in which the talented attorney showed the plays to be the work of a talented attorney" (410). When Schoenbaum mentions Shakespeare's legal knowledge, it is only to ridicule Lord Campbell (260-1, 332-3), not to supply arguments and evidence. Apparently, Schoenbaum both respected Greenwood and chose not to grapple with his arguments directly.
I next turned to Ian Wilson's Shakespeare: The Evidence. Wilson only mentions Twain long enough to say, "Even Mark Twain and Sigmund Freud became sucked into such Baconian fervour" (15). The Baconians needed to prove that Shakespeare possessed the kind of legal expertise that Francis Bacon as Lord Chancellor possessed. Much of the 19th controversy over Shakespeare's knowledge of law might otherwise never have arisen.
Wilson ignores Greenwood entirely, but he does mention that some believe Shakespeare may have been a lawyer, or at least employed as an attorney's clerk. Then with startling logic Wilson states:
But this sort of clue-searching from the plays has more than a few dangers. . . . Other authors have had Shakespeare conscripted into the civil guard when the Armada threatened in 1588. According to canoeing expert William Bliss he ran away from home in 1577 when he was just thirteen to sail around the world on Sir Francis Drake's famous voyage on the Golden Hind. This is apparently proved by a reference in As You Like It to 'remainder biscuit', a variety purportedly carried only on very long voyages. On the grounds of Shakespeare's plays' extraordinary political insights, former government minister Enoch Powell has insisted that Shakespeare must either have been very close to politics or been a politician himself. Overall, civil servant Sir Edmund Chambers' advice is safest: 'it's no use guessing'. (60-1)
Wilson's argument that argument is pointless, that we could only be reduced to "guessing" about Shakespeare's legal knowledge, struck me as astonishing in its absurdity and telling in its avoidance of Greenwood. I began to suspect that such avoidance was not accidental.
I next turned to Irvin Leigh Matus's Shakespeare, IN FACT, a book dedicated to refuting Oxfordians. Strangely, Matus makes no mention of Twain, and only mentions Greenwood in the context of copyright. However, Matus does present the "facts" to dispose of any notions that Shakespeare had a formal legal education and used legal terms accurately. The passage is worth quoting in full:
What, then, of his use of legal terms? Shakespeare toys with these with the jaunty familiarity of an irreverent lawyer. The question of his legal knowledge has been most recently [sic] tackled by O. Hood Phillips, a jurist, legal scholar and educator, in Shakespeare and the Lawyers. In the chapter, "Did Shakespeare have a Legal Training?" he gathered and summarized the varying opinions that have been handed down. The most reliable assessment of the dramatist's knowledge of law, in his opinion, is that of P. S. Clarkson and C. T. Warren,
whose reading of Elizabethan drama revealed that about half of Shakespeare's fellows employed on the average more legalisms than he did, and some of them a great many more. Most of them also exceed Shakespeare in the detail and complexity of their legal problems and allusions, and with few exceptions display a degree of accuracy at least no lower than his.
Clarkson and Warren's verdict is that Shakespeare's references "must be explained on some grounds other than that he was a lawyer, or an apprentice, or a student of the law." What separates him from the others is his knack for making legal terms serve his drama, in the opinion of Justice Dunbar Plunket Barton. "Where Shakespeare's legal allusions surpassed those of his contemporaries," he said, ". . . was in their quality and their aptness rather than in their quantity or technicality." (272)
Though he advances an implied argument that Shakespeare is guilty of "bad law" by using legal terms inaccurately, Matus speaks ex cathedra, failing to give examples and merely relying on the authority of Mr. Phillips. Indeed, that authority is secondhand since Mr. Hood Phillips in his book only presents the authority of Messrs. Clarkson and Warren and quotes none of their examples 2 (159-161, 191).
The Law of Property in Shakespeare seems to have impressed others as well. In The Elizabethan Review (Autumn 1997, Vol. 5, No. 2), the co-editor of the Internet's "Shakespeare Authorship Page," David Kathman, Ph.D., claimed that "Paul Clarkson and Clyde Warren, in an exhaustive study of legalisms in the work of seventeen Elizabethan dramatists (The Law of Property in Shakespeare and Elizabethan Drama), found that Shakespeare was average at best in the number and accuracy of his legal allusions" (22). The concept of "average accuracy" is found nowhere in the source text. 3 I asked Dr. Kathman on the Internet newsgroup humanities.lit.authors.shakespeare, "What can Kathman possible mean by *average accuracy*? It's rather an impenetrable concept, but it sure seems to imply less than perfect accuracy. And why introduce the term *accuracy* anyway, if there is no attempt to assert or imply less than 100% accuracy?" He responded. "What I meant was that these other dramatists were generally accurate in their use of legal terms, just as Shakespeare was. I'm not sure why this is such an 'impenetrable concept'." 4 He was telling me that "average accuracy" means "generally accurate," which simply begs the question.
I found this pattern of ignoring Greenwood—or mentioning him without revealing his legal arguments—rather fascinating. As I began acquiring Greenwood's works, as well as the works of other writers on Shakespeare and the law, I found that not only was Greenwood one of only a handful of eloquent, discriminating, and razor-edged writers on Shakespeare's law, he was also a devastating opponent in a debate. Much of his later writings are responses to his critics, and in almost all cases he effectively and methodically destroys their credibility. I began to see why Charlton Ogburn, Jr. would write, "One crossed swords with Sir George at one's peril" (298).
Two things readily became apparent as I examined closely the history of this argument on Shakespeare's knowledge of law: 1) That a whole segment of the debate has been ignored, a debate between Sir George Greenwood and his major critic, J. M. Robertson, that spans almost 12 years (from 1905 to 1916) and comprises some the best arguments favoring Shakespeare's formal education in law; and, 2) That much of the argument against Shakespeare's formal legal education rests upon William Devecmon's 1899 monograph IN RE Shakespeare's 'Legal Acquirements', J. M. Robertson's 1913 book The Baconian Heresy, Arthur Underhill's 1916 essay on "The Law" in Shakespeare's England, Sir Dunbar Plunket Barton's 1929 book Links Between Shakespeare and the Law, and Clarkson and Warren's 1942 book The Law of Property in Shakespeare. This essay examines that lost debate, the claims made in these books, and the grounds for supposing a legal education for the writer Shakespeare.
Methods of Argument
Let me state clearly that I do not claim to prove that Shakespeare had a formal legal education. Instead, I claim that the argument favoring a formal legal education is significantly stronger than the argument against a formal legal education. This distinction is important, and the critical principle it embodies illuminates the differing methods of argument that lawyers and academics bring to bear on this debate. By "formal legal education" I mean a serious, long-term, and applied study of law, legal history, and legal philosophy while participating in associations and interactions with other students or masters of law, whether in one of the Inns of Court or in some other environment saturated with legal conversation.
For simplicity's sake, I note two classes of advocates: on the one hand, advocates of absolutism, who take a position, claim that it stands by default, and then advise that only absolute and convincing proof of the contrary will dissuade them from their position; and on the other hand, advocates of relative merits, who take no initial stand, who weigh the relative strengths of competing arguments, and who acknowledge when, in terms of reason and evidence, one argument or position is stronger than another, even acknowledging when a stronger argument stands against the position they hold.
In examining the history of this debate, I have found advocates on both sides deserving of each appellation. The advocates of absolutism, when standing by a weaker position, tend to avoid the stronger arguments of their opponents. Instead, they tend to focus on weaker arguments, using tactics to shift the focus away from arguments that expose their own weaknesses. Such tactics can include a simple failure to mention the strongest of an opponent's arguments, a piling on of red herrings (overemphasizing with a list a trivial data, for example), a discrediting of circumstantial data (since each item can be isolated and dismissed as coincidence, without taking into account a mass of "coincidences" that tell a compelling story), and a tactic I call the Satan Maneuver.
The Satan Manuever
I first noticed the Satan Maneuver some years ago while watching a televised interview of an evangelical minister. The minister claimed that the earth was created 6,000 years ago. The interviewer asked the minister about scientific discoveries of fossils that were undoubtedly millions of years old. How could the minister account for those age-old fossils? The minister replied simply, "Satan put them there."
We can imagine the nonplussed look on the face of the interviewer. Where could he go from there? It is important to understand what the minister accomplished with this answer. He had introduced a magical explanation into a forum that was assumed, up to that point, to be one where arguments were supported by evidence and reason. By introducing this Satan Maneuver, the minister destroyed that forum and replaced it with one that precluded, by its very nature, any argument based on evidence and reason.
In fairness to the minister, he may very well constantly dwell in a forum based on magic and faith, with no desire to ever be involved in a forum of evidence and reason. However, scholars and others who enter into a debate that implicitly promises a forum of evidence and reason have an obligation to avoid any introduction of any form of Satan Maneuver—that is, any explanation that introduces a magical explanatory element that negates arguing from evidence and reason, especially when they become uncomfortable with evidence and arguments that threaten to weaken or overthrow their closely held arguments or positions.
The Satan Maneuver appears in Shakespeare studies. When confronted with internal evidence that Shakespeare may have had a high-level education, whether in law or the classics, some scholars produce a rabbit out of the hat by falling back on Shakespeare's genius, or some other form of magical aptitude based on nothing but sheer speculation. For example, A. L. Rowse in his Shakespeare The Man explains Shakespeare's comprehensive and wide-ranging experience with classical and contemporary literature and history thus: "He had a marvellous capacity from the outset for making a little go a long way; his real historical reading came later — he was very much a reading man, and he read quickly" (28).
How he has grasped Shakespeare's "marvellous capacity" or knows his reading ability, Rowse does not say. But his meaning is clear; Shakespeare gleaned his incredible wealth of knowledge by having a capacious mind that magically (through the mystery of "genius") grasped knowledge quickly and easily. British Shakespearean scholar Allardyce Nicoll makes a similar claim in his book Shakespeare: "In the wonder of his genius he was able to grasp in lightning speed what could be attained only after dull years of work by ordinary minds" (68). Thus can scholars magically explain away the lack of high education and the absence of leisure that would seem to be needed for a writer of Shakespeare's accomplishments to refine his skills and accommodate the range and depth of his accomplishments. By introducing such statements, these scholars destroy the possibility of presenting arguments in favor of a university education, or the kind of experience and access that comes with the aristocratic and noble classes. The forum of reason, argument, and evidence dissolves. Genius in the form of a quick mind and capacious memory explains all, the magical ability to immediately and photographically apprehend everything, sans education, sans experience, merely from reading books.
Another form of the Satan Maneuver is the "Universal Tavern of Second-Hand Knowledge." When confronted with the enigma of Shakespeare's knowledge of law, Italy, foreign languages, or anything else that could possibly require unusual study or physical access, some may argue that "Shakespeare would have picked such things up by visiting a tavern and querying travelers or lawyers or multilingual scholars or…" fill-in-the-blank. Again, such an argument based on the second-hand acquisition of knowledge would harm any ability to rely on evidence and reason to make a case that the plays show the kind of knowledge that would require direct experience.
Most scholars do not explicitly invoke the Satan Maneuver. However, when launching an attempt to evaluate the dramatist's knowledge as revealed in the poems and plays, all participants who intend to argue in a forum based on evidence and reason must avoid any form of Satan Maneuver and be called to account when they do. Any worthwhile discussion of Shakespeare's education, training, and experience must be conducted outside the magical specter of his "genius" or any supposed extraordinary "aptitude." Certainly there is merit in using Shakespeare's genius to discuss how he applied his knowledge and craft. There is something concrete (the text) to use for comparison. But that is quite apart from using his genius to explain how he acquired his knowledge and craft. As we move through this history of the arguments, I will point out when any of the participants engage in such tactics of avoidance.
Because there is a mass of books and articles on the subject of Shakespeare and the law, bringing coherence to the history of the arguments presents quite a challenge. Do we stick to a strict chronology? Do we choose a certain argument and trace its history? Do we choose instead a pair of debaters and trace their back-and-forth arguments?
No coherent history can be constructed strictly along one of these methods. Instead, I will present a variety of methods, hoping that in the end, the reader will acquire a reasonably coherent history of the arguments and their relative strengths.
First, I lay some groundwork by exploring "The Early Advocates" of both arguments, focusing on the works of William Rushton, Lord Campbell, and their critics up through 1898. Then I take a close look at "Shakespeare's Supposed Misuse of Legal Terms," which brings to the fore William Devecmon's major critique of Lord Campbell, as well as works by Arthur Underhill, J. M. Robertson, and Clarkson and Warren. Next I outline "Sir George Greenwood and the Lost Debate" between him and Robertson, before examining "The Selective-Amnesia Decades," where later skeptics characteristically avoid revealing certain categories of arguments and refutations. Then, I explore "Shakespeare's Legal Mind," in which the major evidence in support is discussed. Finally, I draw some "Conclusions."
Footnotes
1. Portions of many pre-1925 texts mentioned in this essay are available free on the Web at The Shakespeare Law Library, which can be accessed through SourceText.Com. back2. Whatever shortcomings I find with O. Hood Phillips, his book Shakespeare & the Lawyers is an indispensable aid to anyone researching this argument. With remarkable exceptions (noted later), Phillips provides a comprehensive review of the literature. back
3. Kathman is plainly wrong in claiming that Messrs. Clarkson and Warren's 1942 book is "an exhaustive study of legalisms." The book's title confines the scope to "The Law of Property," and the authors admit the need to narrow the scope: "Long ago we realized that the subject of the law in the drama was so broad that it had best be treated in installments. References will be noted throughout this book to later treatises on the law pertaining to Equity, Marriage and Divorce, Criminal Law, etc." (xxvi) The authors have yet to deliver the promised installments (which must necessarily include International, Maritime, and Commercial Law, as well as the law administered by the Privy Council and the Star Chamber). Mr. Phillips points much of this out in Shakespeare & the Lawyers. A quick scan of Holdsworth's History of English Law, Vol. V reveals that the percentage of English Law covered by Clarkson and Warren can be no more than a single digit. back
4. Available on the Web. Search http://groups.google.com. The post is dated 08/24/1999, the Subject line "Re: Shakespeare's Misuse of Legal Terms" and the Author "David Kathman." Or go directly to: http://groups.google.com/groups?hl=en&lr=&safe=off&th=8e945ace88338ebd&rnum=2&ic=1&selm=37C37A2C.3B37%40ix.netcom.com back