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)

by Mark Andre Alexander

III. Shakespeare's Supposed Misuse of Legal Terms

The first claim that Shakespeare erred in using legal terms appears to have been leveled in 1863 by R.F. Fuller writing in the Upper Canada Law Journal:

"And summer's lease hath all too short a date."

Here the word "date" is not accurately used; as it signifies commencement and not continuance. (95)

This claim by Fuller is a bit baffling. During the 16th century, date was known to signify continuance. The OED gives the following definition and examples:

4. The time during which something lasts; period, season; duration; term of life or existence.
13.. Chron. Eng. 972 in Ritson Met. Rom. II. 310 Thah the sone croune bere The fader hueld is date here.
c1386 Chaucer Can. Yeom. Prol. & T. 858 Neuere to thryue were to long a date.
c1440 Lydg. Secrees 421 So to perseuere and lastyn a long date.
(OED CD-ROM, date n 2, definition 4.)

Even O. Hood Phillips, in Shakespeare and the Lawyers, points to this claim by Fuller saying "Criticism of this kind may be carping" and "Such criticism also has often been misguided" (135). After giving several examples from other critics, Phillips states, "But these criticisms ignore the supposed place and time of the action, the persons by whom and to whom the words are spoken, and the dramatic effect involved" (135).

Phillips is exactly right. When evaluating Shakespeare's work, we must keep in mind that his stance is primarily dramatic or literary. We must keep a vigilant eye out for the context in which a term is used. If the context is strictly a dramatization of a legal situation with characters supposed to be knowledgeable in law, then we may more strictly hold Shakespeare to the legal meaning rather than the conventional meaning of a word. If a legal term is misused by a comedic character, then we cannot say that the dramatist was guilty of misuse. Indeed, if it can be shown that comedic characters typically misused such terms, while the non-comedic characters, or those who should know better, correctly used such terms, that fact would strengthen the case favoring Shakespeare's legal training.

Devecmon's "Bad Law"

In 1899, Devecmon attacked the reasoning of both Lord Campbell and Cushman Davis in his book In Re Shakespeare's 'Legal Acquirements'.1 His was the first extensive argument against Shakespeare having any special training in the law. J. M. Robertson later supported these attacks without providing any examples of supposed errors. Devecmon's main argument focused on a list of 14 "gross errors" in Shakespeare's use of legal terms. He presents a compelling proposition that he feels safe in advancing:

Though the frequent use of legal terms, with their proper technical meanings, has a cumulative effect, and tends strongly to prove a legal training; yet a very few errors in such use, if glaring and gross, would absolutely nullify that effect and proof. (33)

Since the fact of Shakespeare's complete accuracy is widely unknown, it is worth exploring all 14 claims in detail, as well as the refutations put forward by Sir George Greenwood, in The Shakespeare Problem Restated, and by Homer B. Sprague, in his 1902 article "Shakespeare's Alleged Blunders in Legal Terminology" published in the Yale Law Journal. This examination will also reveal how easily critics can slip into common errors and narrow-mindedness.

1. "Demise." Richard III (IV. 4. 247-8):

Eliz. Tell me what state, what dignity, what honor
Canst thou demise to any child of mine?2

Devecmon simply states that dignities and honors cannot be demised and cites Comyn's Digest in support. Greenwood quotes Comyn's Digest, which states that "a dignity or nobility cannot be aliened or transferred to another." "Not a very unreasonable proposition!" says Greenwood. "If the king grants a title or 'dignity' to a subject, it is natural enough that the grantee should not have the power to assign it away to another (perhaps for a round sum down), or to put it up to auction. Therefore the Queen is right, prima facie at any rate, when she suggests to Richard that he has no power to 'demise' any dignity or honour to a child of hers" (Problem 399-400). Greenwood goes further, pointing out that in fact it was possible for Richard, as king, to demise such dignities or honours. Comyn's Digest even states that a subject could make a grant of such things 'with the king's licence.' Sprague adds that even if it were a mistake, would it not be a natural one in the mouth of a queen unlearned in law? It is natural for a dramatist to "impart verisimilitude" by having ignorant characters err in their knowledge (304).

2. "Replication." Hamlet (IV. 2. 11-2):

Ham. Besides, to be demanded of a sponge!
What replication should be made by the son of a king?

Devecmon states that the plaintiff makes his demand on the defendant, the defendant replies by a plea, and then the plaintiff's reply is to this plea is a replication. His point is that Hamlet's role is that of a defendant, whose reply is never a replication but always a plea. Greenwood agrees that in pleading, a replication answers a reply, and is put in by the plaintiff. He goes on to cite an example where the defendant puts in a replication to the plaintiff's plea. Greenwood then says, "But the fact is that 'replication' was constantly used in ordinary parlance in the sense of 'reply.'… Mr. Devecmon must really try again" (401-2). Sprague quotes Glower and Chaucer to demonstrate that they used replication in its simple sense of "reply," demonstrating that such usage had long been practiced (305).

3. "Indenture." Pericles (I. 3. 7-8):

Thal. For if a king bid a man be a villain, he is bound by the indenture of his oath to be one."

Here Devecmon says that the oath of allegiance is referred to, and that use of indenture is entirely out of place, since one has nothing to do with the other, and since indenture must be a written conveyance, bargain, or contract. Greenwood passes on this one, affirming his belief that Pericles was not authored by Shakespeare, but this example is also easily refuted. The OED, unavailable to the literal-minded Devecmon, illustrates that before Shakespeare's time, indenture was already used figuratively for oral contracts and mutual agreements: "d. fig. Contract, mutual engagement. 1540 Morysine Vives' Introd. Wysd. G vij, We haue by indenture of Jesu…that they shall lacke nothinge whiche seke...the kyngdome of God." Oaths of allegiance are contracts in which, in exchange for the oath, the oath-taker receives the benefits generally conferred by the King to all his subjects. Furthermore, Sprague points out that Shakespeare uses indenture in its strict legal sense in Hamlet and I Henry IV, demonstrating that he was fully aware of its technical meaning (306).

4. "Moiety." 1 Henry IV (III. 1. 66-9, 91-2):

Glend. Come, here's the map; shall we divide our right?
According to our threefold order ta'en?
Mort. The archdeacon hath divided it
Into three limites very equally.
[…]
Hot. Methinks my moiety, north from Burton here,
In quantity equals not one of yours."

Devecmon points out that moiety means a half, not a third. He fails to point out that Shakespeare does use it correctly both legally and figuratively in All's Well That Ends Well (III. 2. 66), The Winter's Tale (III. 2. 39), Henry V (V. 2. 212), Richard III (I. 2. 254; and II. 2. 60), Henry VIII (I. 2. 12), Antony and Cleopatra (V. 1. 19), and Cymbeline (I. 5. 105). In several other plays he uses the term figuratively to mean simply a portion rather than a half. But it may be objected that in the case of Hotspur, the strict legal usage is called for. A close reading reveals that in fact Hotspur uses the term correctly. Devecmon and other critics want to yoke Hotspur's "moiety" reference to the tripartite division mentioned over 20 lines earlier. In fact Hotspur is speaking, not of his third, as compared to the other two men, but a smaller section of his third, which he is comparing to a smaller section belonging to Mortimer only.

If Hotspur were comparing his third to the two other men's, he would be speaking of the whole compared to the whole of theirs. He does not. His land borders Mortimer's, and the argument center's around a portion "north from Burton." Shakespeare uses the legal term correctly. Sprague points to one translation of Caesar's Commentaries, "All Gaul is quartered into three halves!" to demonstrate that portions were once more flexibly used. He quotes and authority, Moberly, "The work 'moiety,' like 'halb' or 'half,' originally means only a part" (306). Furthermore, this passage reveals the danger of assuming too much regarding Shakespeare's use of legal terms. The legal form is taken directly from Holinshed's Chronicles. Shakespeare's sources for his histories must always be checked for legal form and terminology.

5. "Challenge." Henry VIII (II. 4. 73-6,116):

Cath. I do believe,
Induced by potent circumstances, that
You are my enemy, and make my challenge.
You shall not be my judge.
[…]
I do refuse you for my judge…

Devecmon points out that challenge is applicable only to jurors, and that a judge is not subject to challenge. Greenwood replies:

Here the same curious idea is apparent, viz. that a dramatist cannot be a lawyer unless he makes his ladies and laymen speak in the language that a trained lawyer would employ. But, apart from this, it really seems to me no better than solemn trifling to argue from such an expression put into the Queen's mouth that the writer had no accurate knowledge of law. 'Challenge' was constantly used in the sense of 'objection,' and even though the poet might have had the legal significance in his mind, it certainly does not argue the absence of legal training on his part that Catherine should apply, by a very natural analogy, to one of the Cardinals who were to act as judges in the case, a term which, in strict legal usage, was properly applicable only to a juror. (400)

Sprague also points out that Shakespeare uses challenge in the sense of to "claim as a right" 18 times throughout the plays, and that it is used appropriately here in the same sense (306).

6. "Well ratified by." Hamlet (I. 1. 87-91):

Hor. In which our valiant Hamlet—
For so this side of our world esteemed him—
Did slay this Fortinbras; who by a sealed compact,
Well ratified by law and heraldry,
Did forfeit his life…

Devecmon states that well ratified by means strictly in accordance with and is out of place here as a legalism. Once again, he is being too absolute. Devecmon thinks the term can only be used in a strict legal meaning, but he is wrong. According to the OED, by Shakespeare's time ratify had a long history of meaning confirmed or approved in a non-legal context. Sprague demonstrates that Skelton in Colin Clout, Levins in Manipulus Vocabulorum, and Bacon in Political Fables, all used the term in this non-technical sense. (307)

7. "Jointress." Hamlet (I. 2. 8-9):

Claud. Therefore our sometime sister, now our queen,
The imperial jointress to this warlike State.

Devecmon sites Co. Litt. 46 to define jointress as "a woman who has an estate settled on her by her husband." Referencing Blake's Commentaries he states that a jointure was used for barring dower, and that "Gertrude could have neither a dower nor a jointure in Denmark." As has often been remarked, Shakespeare's settings are always England in one form or another. The characters of Shakespeare's plays commonly speak as if they are operating under English customs, traditions, and laws. It turns out that not only is this term legally correct, it is also crucial to understanding Hamlet's melancholy. For a detailed analysis of this term and its importance to the legal interpretation of inheritance in the play, check out this passage in The Legally Annotated Hamlet.

8. "Common/Several." Love's Labour's Lost (II. 1. 221-223):

Boyet. So you grant pasture for me.
Kath. Not so, gentle beast;
My lips no common are, though several they be.

This passage is commonly cited as an error. Devecmon admits that Shakespeare understood that one cannot both hold a thing in common and in severalty; he believes that Shakespeare sacrifices his knowledge for a mere play on words, something that one with legal training would not do. Greenwood responds:

Common of pasture is, of course, a right of common with which lawyers are very familiar. Boyet desires a grant of pasture on Maria's lips, but she replies that there is 'no common' there. This suggests the distinction between tenancy in common and 'severally' or individual ownership, and Maria, bethinking her that her lips are 'several,' or severed one from the other, adds 'though several they be.' The same idea appears in the Sonnets.

Why should my heart think that a several plot,
Which my heart knows the world's wide common place?

In the play there seems, at first sight, to be some little confusion involved by the use of the word 'though,' for things which are 'several' would naturally not be 'common,' but I think the explanation is to be found in a note of William Hazlitt's to Sir John Oldcastle, Part I, Act III, Sc. 1, where the Earl of Cambridge says:

Of late he broke into a several
Which cloth belong to me;

and the note explains 'several' here as meaning 'portions of common land assigned for a time to particular proprietors.' Thus 'severals' could be part of common lands, and so Maria might say that her lips, though 'several' are 'no common,' though, even so, the conjunction seems rather forced. (417)

Sprague explains that this passage reflects a matter of taste. That Shakespeare as a lawyer would certainly not perpetuate such puns. But as a dramatist, these terms invite this kind of punning in such a scene. "No blunder here," states Sprague (308).

Still, unless some other understanding of the usage here is discovered (for example, where though can be shown to mean but), it is a poor pun. But since all parties (including Clarkson and Warren) acknowledge that Shakespeare understands the distinction, it offers no support against Shakespeare's knowledge of law.

9. "Entail." 3 Henry VI (I. 1. 200-3):

King H. I here entail
The crown to thee, and to thine heirs forever;
Conditionally that thou here take an oath
To cease this civil war…

Devecmon quotes Senator Davis: "The use of the word entail here seems to be inaccurate, for, though the use of the word heirs is necessary to create a fee, so the word body or some other words of procreation are necessary to make it a fee tail. A gift to a man and his heirs, male or female, is an estate in fee simple and not in fee tail." Greenwood avoids this play also, believing that it was not Shakespeare's. Once again, we have an instance where the literal-minded lawyer assumes that only the strict legal definition was in common usage. A quick check of the OED reveals that both Davis and Devecmon err. According to the OED entail was used apart from its strict legal usage: "2. transf. and fig. To bestow or confer as if by entail; to cause to descend to a designated series of possessors; to bestow as an inalienable possession." Thus, in 1513 Sir Thomas More in Edward V, 3 writes "The Crowne of the Realme [was] entayled to the Duke of Yorke and his Heires." (OED) Perhaps Shakespeare was following Sir Thomas in this usage of appointing an hereditary possessor, but Shakespeare uses "entail" in its stricter legal usage in All's Well That Ends Well (IV, 3, 270), showing that he understood both definitions precisely.

10. "Statutes." Love's Labour's Lost (I. 1. 15-19):

King. You three, Berowne, Dumain, and Longaville,
Have sworn for three years' term to live with me,
My fellow-scholars, and to keep those statutes
That are recorded in this schedule here:
Your oaths are pass'd; and now subscribe your names

Here is another supposed error commonly cited. Devecmon thinks statutes is misused here to mean merely articles of agreement, since there is no such meaning in law. According to Greenwood, Shakespeare uses statutes in the sense of ordinances, as is usual in a college (404). In this one case, Mr. Robertson, pausing in his constant assaults in The Baconian Heresy, explicitly agrees with Greenwood (175n).

11. "On the case." The Comedy of Errors (IV. 2. 41-2):

Adr. Why, man, what is the matter?
Dro. S. I do not know the matter: he is 'rested on the case.

Devecmon points out that there are two kinds of civil actions: those growing out of breach of contract and those for the recovery of wrongs independent of a contract. On the case applies to the former, but the statement here applies to the latter. However, Devecmon neglects to notice that this is a comedy with comedic characters who will, like Dogberry in Much Ado About Nothing, mix their legal terms. Dromio is mixing up the usage. For Devecmon and anyone else to cite such misuse as indicating Shakespeare's ignorance simply ignores the fact that it takes technical knowledge to have his clowns make such humorous blunders. Sprague goes further, stating that the clown may simply be using on the case as in a suit or matter of law, rather than in an action of tort (309). This interpretation works well since the passage can then participate in the wordplay on "suit" in the next few lines.

12. "Testament." Henry V (I. 1. 9-11):

Cant. For all the temporal lands, which men devout
By testament have given to the church,
Would they strip from us.

Devecmon claims that testament is used incorrectly since it bequeaths personal property. A will is used for devising real estate. Greenwood responds:

"How absolute the knave is! We must speak by the card"'! Must the Archbishop speak by the card too, or the writer be set down as no lawyer? But really this is but another example in support of the proposition that a little learning is a dangerous thing. "A testament is the true declaration of our last Will; of that wee would to be done after our death," says the learned author of that famous old book Termes de la Ley. A "testament" includes a "will,"' said the Court in Fuller v. Hooper (2 Vesey Senior 242). Nay, more, Littleton, the great and learned Littleton, uses "testament" as applicable to a devise of lands and tenements; and all Coke has to say about it is that "in law most commonly "ultima voluntas in scriptis" is used where lands or tenements are devised, testamentum when it concerneth chattels." But we know that 'testator' is used of a man who has made a will, whether it be of lands or of personal property. So that again Mr. Devecmon's attempt fails. (402)

Sprague catches Devecmon shifting ground by showing that later in his book on page 47 Devecmon says, "Will or testament (which latter word is essentially identical in meaning with 'will')" (310).

13. "To your heirs forever." Julius Caesar (III, ii, 249-252):

Antony. Moreover he hat left you all his walks,
His private arbors, and new-planted orchards
On this side Tiber, he hath left them you
And to your heirs forever.

Again Devecmon quotes Cushman Davis, who remarks that Shakespeare did not use the appropriate legal term deviseand instead used "to your heir forever." Devecmon wants to extend the remark and make it a criticism, saying, "Shakespeare nowhere uses the word in connection with a will. It was also unnecessary for Caesar's will to have contained the expression 'to your heirs forever' in order to give the people a perpetual estate in the reality" (41). Although Shakespeare's usage may be "remarked" upon, for that usage to call for criticism and as more proof that Shakespeare did not know the legal meaning of the word devise, which he does not use, seems at minimum petty. The poetry of Antony's speech calls for Shakespeare's usage, not strict legal usage. Devecmon has dipped here into an extreme silliness.

14. "Single bond." The Merchant of Venice (I. 3. 140-6):

Shy. Go with me to a notary; seal me there
Your single bond, and in a merry sport
If you replay me not on such a day,
In such a place, such a sum as are
Expressed in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh…

Devecmon says, "It is hardly conceivable that any lawyer, or anyone who had spent considerable time in a lawyer's office, in Shakespeare's age, could have been guilty of the egregious error of calling a bond with a collateral condition a 'single bond.'" In Shakespeare's Law Greenwood quotes both the Encyclopaedia of the Laws of England and Stephens Commentaries to point out that single bonds include those where people are bound to pay at a certain time and place with a penalty attached in the event of failure to pay. Payment of a pound of flesh is the penalty and not a condition(24-26). In other words, Devecmon sees that Shakespeare has used the words "Expressed in the condition" and wants to immediately translate that as a conditional bond in the legal sense. It is not. The bond is properly defined as a single bond. Once again, the error lies with Devecmon, rather than with Shakespeare.

Devecmon mentions a 15th error to which neither Greenwood nor Sprague respond. In his discussion of The Merchant of Venice Devecmon mentions that the court awards all Shylock's property:

and all that he might afterward acquire, (for he was required to record in court a deed of gift of all he died possessed)…. And, by the way, this deed of gift is another blunder of the law. It is a fixed principle of the common law that a man cannot convey a thing which he has not, though he afterward acquire it. Only things in esse, having an actual or potential existence, were subjects capable of gift or grant (Comyn's Dig. Tit. Grant (D))."

The response is actually given by Clarkson and Warren in their book: "It has been pointed out [by Devecmon (note)] that such an instrument would be quite inoperative to transfer after-acquired property; only that which was in esse at the time the deed was delivered would pass. This observation, however, seems largely beside the point because this deed was not intended at the time of delivery to pass even the property which was in esse" (183).

Thus has every supposed error that supports a supposed lack of Shakespeare's legal knowledge raised by Devecmon been refuted.

What then of those claims by other writers?

Charles Allen's Bad Law

Charles Allen's Notes on the Bacon-Shakespeare Question also has a chapter on Shakespeare's bad law (Chapter VII). Allen's examination of legal terms is simplistic and denies Shakespeare the possibility of figurative usage, as does Devecmon before him. Greenwood devotes much of his book Shakespeare's Law to refuting Allen. Allen's methods of argument are so poor that he is censured for his errors by later writers, such as Clarkson and Warren (219). Here is a passage that reveals Allen's headache-inducing methods:

In King John is found the line, "As seal to this indenture of my love." "Indenture" seems to be used for assurance, or promise, or contract,—an untechnical use of the word. In Winter's Tale, "land-damn" apparently refers to some mode of legal punishment; but the term is unknown in the law. It has been conjectured that this term is a corruption; but it appeared in all the Folios. "Rejoin" for "adjourn," in Coriolanus, is believed to be unknown in legal use, though in Richardson's Dictionary instances of its use are cited for Wotton, Burton, and North's Plutarch. "Fee-grief," in Macbeth, is a combination which is not found elsewhere. "Crazed title," in Midsummer's Night's Dream, is not a legal epithet for a doubtful title. "Enfoeffed himself to popularity," in 1 King Henry IV, is a violent and untechnical straining of the sense of the legal term. (125-126)

Enough! Suffice it to say that no later critic of Shakespeare's law is comfortable citing Allen as support.

Arthur Underhill's "Bad Law"

In his essay "Law" in Shakespeare's England: An Account of the Life & Manners of his Age, Arthur Underhill lets the reader know exactly where he stands by opening the section on "The Law" with the statement, "Despite Shakespeare's frequent use of legal phrases and allusions his knowledge of law was neither profound nor accurate"3 (I.381). In a paper presented at the 20th Annual Conference, October 10-13, 1996, entitled "Recent Developments in the Case for Oxford as Shakespeare," Peter Moore deftly refutes the three instances where Underhill accuses Shakespeare of using legal terms incorrectly.4

Underhill resurrects Devecmon's claim that in Love's Labour's Lost Shakespeare incorrectly uses common and several saying that the "allusion is not technically accurate, for it attributes [them] to the lips rather than to the right to kiss them, and uses the word though incorrectly, in place of but, which rather suggests that he considered common rights to be in some way connected with, instead of opposed to, "several" ones. Greenwood's response to this "error" stands, and again we note that Devecmon admitted that Shakespeare knew the difference. Moore points out that any annotated edition explains how Maria is playing on the two meanings.

Underhill cites Hamlet's graveyard remarks on the ownership of landland, where he dashes off almost a dozen legal terms, including statutes and recognizances (V. 1. 101-110). Underhill says: "What 'statutes and recognizances' had to do with the buying of land is not evident to a lawyer, and may suggest that Shakespeare's knowledge of the law of property was neither accurate nor extensive" (I.406). Moore accurately points out that "any annotated, university-level edition of Hamlet, such as Arden, Oxford, or Cambridge, will explain exactly what statutes and recognizances had to do with buying land."

Underhill finally turns to All's Well That Ends Well where he accomplishes what can only be described as an intentional misrepresentation in order to plant in the reader's mind another "inaccuracy." First, Underhill states that "the King of France insists upon his highborn ward Bertram marrying Helena, a poor physician's daughter, who was of inferior rank to him." He then quotes a passage (II. 3. 52-3) where the King has Helena choose a husband. Underhill then informs us that "when Bertram, whom Helena chooses, protests, the King informs him peremptorily that

It is in us to plant thine honour where
We please to have it grow. Check thy contempt:
Obey our will, which travails in thy good.

Underhill skips over 100 lines to quote this passage (II. 3. 156-8). He then quotes a passage from Jonson's Bartholomew Fair, which he says alludes "to the condition that the spouse must be of equal rank with the ward, which Shakespeare has ignored." Yet, between the two passages that Underhill quotes, is this:

Ber. But follows it, my lord, to bring me down
Must answer for your raising? I know her well:
She had her breeding at my father's charge-
A poor physician's daughter my wife! Disdain
Rather corrupt me ever!
King. 'Tis only title thou disdain'st in her, the which
I can build up. Strange it is that our bloods,
Of colour, weight, and heat, pour'd all together,
Would quite confound distinction, yet stands off
In differences so mighty. (II, 3, 112-21)

Bertram directly addresses the unequalness in rank between him and Helena. The King responds that he can raise her in rank, and then proceeds to reflect on how strange it is that people can in every other respect be the same, yet so different in rank. In Peter Moore's words, "Shakespeare was perfectly well aware of the requirement." And Underhill knew that Shakespeare knew. One must wonder if Underhill has been intentionally deceptive.

Clarkson and Warren's Bad Law

Now we finally turn to Clarkson and Warren and The Law of Property in Shakespeare and the Elizabethan Drama. The authors labored long and hard to cross-catalog all of the legal references to property law used by 17 Elizabethan dramatists. What did they actually say that persuaded O. Hood Phillips, who persuaded Irvin Leigh Matus, who persuaded Dr. David Kathman that Shakespeare "was average at best" in the accuracy of his legal allusions?

Not only do half of the dramatists employ legalisms more freely than Shakespeare, but most of them also exceed him 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. Proceeding from the general to the particular, about the same comparative average is maintained among the dramatists in their allusions to property law…." (285)

Perhaps Dr. Kathman did consult the source text, since that second sentence is not quoted by Matus or Phillips.5 But he misconstrues and misapplies a quantitative average as a qualitative average. The point is that Clarkson and Warren fail to demonstrate even one real error in Shakespeare's use of legal terms.

Using the index or the table of contents, a researcher would be hard-pressed to discover Shakespeare's alleged inaccuracies. One who knows the history of the debate would eventually seek out Devecmon's name in the index. Although there are only two listings, there are at least three actual mentions in the text, all criticizing Devecmon for erring in his criticism of Shakespeare.

The authors also criticize Charles Allen for erroneously pointing out errors in Shakespeare's use of legal terms (219, 224, 246). Strangely, although the authors admit a liking for Allen's book, they do not quote a single one of his "bad law" examples. Perhaps this is because they have read Greenwood's Shakespeare's Law, which they make only one reference to in a footnote (246), as a counter to a claim of Allen's.6

The Law of Property in Shakespeare and Elizabethan Drama appears to contain only three examples of Shakespeare's inaccurate use of legal terms.7 First, the authors repeat Devecmon's discovery of a "technical error" in Shakespeare's use of entail in 3 Henry VI (59). They repeat Devecmon's mistake in assuming that the term has only a technical usage. Second, they cite the Host in The Merry Wives of Windsor (II. 1. 206-7) for misusing egress and regress (70). There is little point in belaboring the obvious—that to quote such a character in such a play as an example of Shakespeare's error is beyond highly questionable.

Clarkson and Warren's third error is different. It actually promises to be a significant discovery. They begin their second chapter of Part III setting the stage for a discussion of the use of the term heir,particularly in heir apparent and heir presumptive, noting that there is an important distinction between the two (197-9). The heir apparent's succession was contingent only upon his outliving his ancestor, such as an eldest son. This is the only circumstance that could deprive him of his inheritance. Thus, the heir apparent is in the direct line of succession. The heir presumptive, on the other hand, would be like a brother to a King, one whose succession could be displaced by the birth of a child to the King. Thus, Clarkson and Warren reveal Shakespeare's error:

Shakespeare uses the phrase 'heir apparent' incorrectly when Cardinal Beaufort says of Humphrey, Duke of Gloucester [2 Henry VI (I. 1. 150-1)],

Consider, lords, he is the next of blood
And heir apparent to the English crown.

Gloucester was not Henry VI's eldest son, of course, but his uncle, and therefore heir presumptive. Shakespeare did not adopt this language from Holinshed, and did not have here the excuse of metric requirements, since either word fits the iambic pentameter equally well. We have here just another example of Shakespeare's being interested not so much in correctly stating a legal proposition, as in putting into the mouth of his character words which to the laymen-groundling sounded like good law, and at any rate conveyed the desired information. This is, of course, the essence of good theatre. (199)

If this is an error, it indeed qualifies as one that a man trained in law would not commit. Clarkson and Warren then proceed to give examples of contemporary dramatists who display a knowledge of the distinction—and these examples present a problem: They contain only the concept of the distinction, not the use of the phrase heir presumptive. Would this not set off an alarm of warning to the authors?

A quick check of a concordance reveals that Shakespeare never used heir presumptive or even presumptive. A quick check of the OED reveals that the first public use of presumptive occurs in 1609, and that heir presumptive is not used until 1628. Could this mean that the term was not in use during Shakespeare's time? Yes! Under the third listing under presumptive the OED provides this example:

1683 Brit. Spec. 272 Apparent (or according to the new-coyned Distinction, Presumptive) Heir of the Crown is His Royal Highness James[etc.].

In other words, heir presumptive was regarded as a newly-coined term in the late 17th century, and that heir apparent was commonly used for both distinctions!

Once again, the critics of Shakespeare's law are themselves proven to be the ones in error.

In a passage referring to Shakespeare's Law, Sir Plunkett Barton states,

Some critics have gone to the opposite extreme, and have dwelt upon what they call 'the bad law' in the plays of Shakespeare. He, like other dramatists, probably cared very little whether this law was strictly accurate, so long as it helped the plot or the dialogue. Sir George Greenwood, with whom this writer does not always agree, has disposed of this subject in a recent book. (149)

As Lord Campbell stated over 140 years ago, as to Shakespeare's use of legal terms "there can neither be demurrer nor bill of exceptions, nor writ of error."

Footnotes

1. Before turning to Shakespeare's "errors," Devecmon spends the first 30 page of his book repeating the arguments of Dickens and Grant White (that Shakespeare was not necessarily a lawyer just because he used legal terminology) and presenting similar attacks on Lord Campbell. The list of 'errors' distinguishes Devecmon from other writers. back

2. All citations are from The Arden Shakespeare. back

3. Although Shakespeare's England was published in 1916, Underhill only shows knowledge of the some of the arguments through 1900. He only lists Campbell, Davis, and Allen in his bibliography, and neglects to mention Devecmon. It appears that the essay was already out of date when it was finally published. back

4. Moore's paper is available online: http://www.everreader.com/progres1.htm. Moore also exposes Underhill's hidden agenda: "King Lear orders law to sit with equity (III.vi.39-41), and Underhill remarks that '[b]ut for [this] passage, Shakespeare gives no hint that he knew of the existence of Courts of Equity as distinguished from Courts of Law' (I.395). We might just as well say that, but for one remark in 1 Henry IV (I.iii.60-62), we would have no idea that Shakespeare knew that saltpeter is used in making gunpowder. But the remark is there, and so obviously Shakespeare did know that saltpeter is used in gunpowder, just as he knew about the judicial system called equity. So what's Underhill's point? Underhill won't say, but the point is that Francis Bacon was a specialist in equity who ended up achieving his goal of becoming Lord Chancellor, that is, the head of equity. In other words, Underhill is arguing the case against Francis Bacon." O. Hood Phillips, by the way, holds up Underhill as an authority. (188-9). back

5. Dr. Kathman's statement: "Shakespeare was average at best in the number and accuracy of his legal allusions." back

6. Phillips also holds up Allen as an authority of Shakespeare's "bad law," but he cites only one example (135) and that only to shoot it down with a reference to Greenwood! This use of Greenwood as a supporting authority is strangely typical of several critics of Shakespeare's law and of some critics of Oxfordian arguments. When discussing Shakespeare's law, Schoenbaum in Shakespeare's Lives avoids addressing Greenwood's legal arguments, but does draw on him as support for other arguments. And Matus, who knows perfectly well that Greenwood still stands as one of the finest anti-Stratfordian defenders, avoids bringing up his name when discussing law, and many other key topics, but does mention him in a couple of other contexts, one for support. back

7. I have made every effort to find all of Clarkson and Warren's examples of Shakespeare's misuse of legal terms, despite an index that fails to provide references. I admit it is possible, but improbable, that I missed one or two. back

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