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)
IV. Sir George Greenwood and the Lost Debate
Table Two: The Robertson/Greenwood Debates
Writer's skeptical of Shakespeare's knowledge of law appear in Bold.
1899 William Devecmon In Re Shakespeare's 'Legal Acquirements' 1900 Charles Allen Notes on the Bacon-Shakespeare Question 1902 H. B. Sprague "Shakespeare's Alleged Blunders" Yale Law Journal 1902 Judge Webb The Mystery of William Shakespeare 1902 Lord Penzance The Bacon-Shakespeare Controversy 1904 J. Churton Collins Studies in Shakespeare 1905 J. M. Robertson Did Shakespeare Write 'Titus Andronicus'? 1908 George Greenwood The Shakespeare Problem Restated 1911 Edward J. White The Law in Shakespeare 1913 J. M. Robertson The Baconian Heresy 1916 George Greenwood Is There a Shakespeare Problem? 1916 J. M. Robertson Letters in The Nation and Literary Guide 1916 George Greenwood Shakespeare's Law and Latin 1916 Arthur Underhill "Law" in Shakespeare's England 1920 George Greenwood Shakespeare's Law
Despite the efforts of Devecmon and Allen, the tide of Baconian books continued to rise, including two by distinguished Judges. Judge Webb in his The Mystery of William Shakespeare is the first to make the explicit point that "In the Plays every one of the characters talk law" (167). He then proceeds to give a couple of pages of examples. Judge Webb contributes little else to the argument other than this absolute generalization, which is only defensible when applied to most major characters and many minor ones.That same year Lord Penzance's book The Bacon-Shakespeare Controversy devoted over a dozen pages to the argument, mostly quoting Lord Campbell, Grant White, and Cushman Davis, and covering similar terrain. However, Lord Penzance adds his voice to the building chorus that Shakespeare's usage indicates a solid legal mind, and is the first to clearly articulate a proposition that has yet to be acknowledged and countered:
The mode in which this knowledge was pressed into the service on all occasions to express his meaning and illustrate his thought, was quite unexampled. He seems to have had a special pleasure in his complete and ready mastership of it in all its branches. As manifested in the plays this legal knowledge and learning had therefore a special character which places it on a wholly different footing from the rest of the multifarious knowledge which is exhibited in page after page of the plays. At every turn and point at which the author required a metaphor, simile, or illustration, his mind ever turned to the law. He seems almost to have thought in legal phrases—the commonest of legal expressions were ever at the end of his pen in description or illustration. That he should have descanted in lawyer language when he had a forensic subject in hand, such as Shylock's bond, was to be expected. But the knowledge of law in "Shakespeare" was exhibited in a far different manner: it protruded itself on all occasions, appropriate or inappropriate, and mingled itself with strains of thought widely divergent from forensic subjects. (85-86, italics added)
Lord Penzance makes a crucial distinction, later echoed by Greenwood, that fails to impress the literal-minded critics of Shakespeare's legal knowledge: The fact that Shakespeare used legal terms accurately in those places requiring accurate forensic usage should not be the base on which to build an argument supporting Shakespeare's legal training. Rather, that base would best be one of legal metaphors and similes and puns that arise in places where one does not expect forensic terminology. In other words, Shakespeare's mind exhibits the kind of training in law that comes with deep, long-term study—a mind that naturally views the world in legal metaphors. This distinction is lost on many later writers.
In 1905 J. M. Robertson, a noted British Member of Parliament (but not a lawyer), published his book Did Shakespeare Write 'Titus Andronicus'? In a brief four-page passage with the sic heading "Alleged Shakespearean Legal Allusions" (nobody has questioned that Shakespeare's works contain legal allusions, only what may be inferred from them), Robertson criticizes a non-lawyer, Churton Collins, for merely listing in his 1904 book, Studies in Shakespeare, the legal terms in Titus Andronicus. Robertson counters that Shakespeare was not the only one who used legal terms. He then cites Devecmon's statement that Webster's The Devil's Law Case displays "more legal expressions (some of them highly technical, and all correctly used) than are to be found in any single one of Shakespeare's works" (Titus 54). He goes on to present his own list of legal terms in three plays by Peele—Arraignment in Paris, Battle of Alcazar, and Edward I—and in The Spanish Tragedy.
Robertson is right to point out that mere use of legal terms fails to prove legal training, and that other dramatists at that time used them. But he is wrong to state that "The general thesis as to Shakespeare's legal knowledge or proclivities…was exhaustively dealt with…by Mr. Devecmon" (54). Devecmon's treatment fell far short of exhaustive. If Robertson had known what he would trigger with his brief treatment of Shakespeare's legal allusions, he may have skipped the entire question.
In 1908 Sir George Greenwood published his landmark 560-page The Shakespeare Problem Restated. The book was a landmark for two reasons. On the one hand, it was the first anti-Stratfordian book that examined the evidence of authorship dispassionately. How can this be? Because Greenwood had yet to decide on exactly who was the author. In the Preface, he indicates that "it is no part of my plan or intention to defend that theory," (vii) "I am quite free to admit that some of the extreme advocates of the 'heresy' have done much harm putting forward wild, ridiculous, and fantastic theories," (xv-xvi) and
I have endevoured to avoid all fantastic theories, and although of course, a certain amount of hypothesis is unavoidable…my wish has been to depart as little as possible from the realm of fact, so far as we can ascertain it, and of legitimate argument founded thereon. I have made no attempt to deal with the positive side of the question. I leave it to others to say, if they can, who the great magician really was. (xviii-xix)
This stance is truly dramatic and goes far in helping to clarify the arguments surrounding the man Shakspere and his relationship to the author Shakespeare, without the intervening distractions of more tenuous arguments positing the real author.
The book was also a landmark in its profound influence on a number of famous writers, lawyers, and other professionals, most notably Mark Twain, Sigmund Freud, and J. Thomas Looney, the author of Shakespeare "Identified", who based some of the criteria he used to search for a likely author on Greenwood's book.
In a long chapter "Shakespeare as a Lawyer," Greenwood finds fault with Robertson's brief foray into the legal question. Greenwood reminds the reader of Lord Campbell's statement warning of the danger for a layman to tamper with the lawyer's craft: "The layman is certain to betray himself by using some expression which a lawyer would never employ" (371). After pointing to such an error made by Sir Sidney Lee, the noted Shakespearean biographer, Greenwood reveals in a footnote that Robertson had also made such an error: "I find yet another instance in Mr. J. M. Robertson's Did Shakespeare Write 'Titus Andronicus'? (p. 59). Mr. Robertson writes: 'Let us formulate all the tests that the problem admits of, first putting a few necessary caveats.' No lawyer would speak of 'putting a caveat.' The legal term is to 'enter a caveat'" (372).
Robertson answers Greenwood on this,1 and on Greenwood's reliance on Lord Campbell, Richard Grant White, and others as authorities—five years later in his book, The Baconian Heresy. Greenwood responds to Robertson's remarkable assertions three years after that in Is There a Shakespeare Problem? That same year, Robertson and Greenwood exchange a series of letters in The Literary Guide and in The Nation, and some months later Greenwood publishes his side of that exchange in Shakespeare's Law and Latin, to which Robertson does not respond. In fact, in 1924 Robertson updates Did Shakespeare Write 'Titus Andronicus'?, retitling it An Introduction to the Study of the Shakespeare Canon, leaving the section on "Alleged Shakespearean Legal Allusions" in tact with additional examples, and with one mention of Greenwood, while referring the reader back to The Baconian Heresy.
A closer examination of the debate between Robertson and Greenwood is important for two reasons: later writers, into the 1990s, directly or indirectly rely on Robertson as support for their arguments;2 furthermore, the debate itself clearly reveals the two domains of the argument that later writers fail to acknowledge—a primarily quantitative case versus a primarily qualitative case.
Because of the voluminous exchange (over 300 pages almost evenly divided between the two debaters), it's best to trace three exchanges: 1) Robertson's criticism of Lord Campbell's assertion that Shakespeare's use of fine and recovery in Merry Wives of Windsor indicates how he had the "recondite terms of law' constantly running in his head; 2) Robertson's criticism of Grant White's assertion that Shakespeare's use of the legal term purchase is remarkable; and 3) Robertson's criticism of Greenwood's assertion that Webster's The Devil's Law Case "shows no knowledge of law whatever on the part of its author." I quote extensively so that the reader can get a clearer sense of the manner in which both men apply reason.
Fine and Recovery
In The Baconian Heresy, after nine pages attacking Greenwood, Robertson consumes almost 50 pages attacking 43 evidentiary examples discussed by Lord Campbell. Although Robertson and others may be right in attacking Lord Campbell for any implication that the mere use of legal terms constitutes proof that Shakespeare has had a legal education, Robertson unwittingly supports Lord Campbell's argument that "Shakespeare's head was so full of the recondite terms of the law, that he makes a lady thus pour them out, in a confidential tête-à-tête conversation with another lady" (40). The second example involves Lord Campbell's pointing out a passage in The Merry Wives of Windsor (IV, ii, 193-199) in which two ladies have a conversation regarding Falstaff:
Mrs. Ford: What think you: may we, with the warrant of womanhood and the witness of a good conscience, pursue him with an further revenge?
Mrs. Page: The spirit of wantonness is sure scared out of him; if the devil have him not in fee-simple, with fine and recovery, he will never, I think, in the way of waste attempt us again.3Robertson then gives over three pages of examples where other contemporary writers use the terms fine and recover. Robertson quotes from Greene's Card of Fancy:
Yet Madame (quoth he) when the debt is confest there remaineth some hope of recovery. … The debt being due, he shall by constraint of law and his own confession (maugre his face) be forced to make restitution.
Truth, Garydonius (quoth she), if he commence his action in a right case, and the plea he puts in prove not imperfect. But yet take this by the way, it is hard for that plaintiff to recover his costs where the defendant, being judge, sets down the sentence. (41)
Robertson then exclaims: "The 'debt' in question is one of unrequited love. Shall we then pronounce that Greene wrote as he did because 'his head was full of the recondite terms of the law?'…Greene was no lawyer." Robertson presses the point in the fourth example, where fine and recover are used again in The Comedy of Errors (II, ii, 71-75):
Syr. Dro. There's no time for a man to recover his hair that grows bald by nature.
Syr. Ant. May he not do it by fine and recovery?
Syr. Dro. Yes, to pay a fine for a periwig, and recover the lost hair of another man.Lord Campbell comments upon the passage, "[These jests] show the author to be very familiar with some of the most abstruse proceedings in English jurisprudence.
"'Fine' as it happens, is a common figure in the drama of Shakespeare's day," Robertson replies. "Bellafront in Dekker's Honest Whore (Part II, iv, 1) speaks of 'an easy fine, For which, me thought, I leased away my soul.'….There is nothing more technical in the Comedy of Errors" (41).
Indeed, Robertson gives many more examples of contemporary dramatists (Mall, Jonson, Roye, Massinger, and Webster), who were not legally trained, using the terms fine to mean a money payment, and recovery to mean the reacquisition of that which was taken or lost. What possible reason could Greenwood have to object? Simply the very good reason that, since Robertson himself is not a lawyer, he failed to recognize the technical legal meaning of fine and recover and supplied equivocal parallels that have absolutely no application. In Is There a Shakespeare Problem?, Greenwood writes:
Amazement seizes me as I read passages like this. Is this, I ask, the strong reasoner, the great logician, the doughty controversialist? And does he really think that there is any analogy between the passage cited from The Merry Wives and the quotation above set forth from The Card of Fancy? Shakespeare uses the legal expressions (and whether "recondite" or not, they are, certainly, highly technical expressions) "fee simple with fine and recovery." What does Mr. Robertson triumphantly produce as a parallel passage? A quotation from Greene in which, certainly, there is mention of an "action" and of a "plea," and in which, moreover, there is talk of "recovery," viz. the recovery of a debt, and the recovery of costs. And Mr. Robertson would really appear to think that this ordinary use of the word is equivalent to the very technical use of the word "recovery" as used in connection with a "fine"! It would be as much to the point to cite a passage in which a patient is stated to have made a good "recovery" from an illness. But of course the ordinary reader, glancing rapidly through Mr. Robertson's countless parallels (so called), and knowing nothing of law, or legal terms, thinks that in the multitude of instances there is necessarily wisdom….[I]f Mr. Robertson had submitted his proofs to any young law student preparing for his "exam," it would have been pointed out to him that he had been guilty of a ridiculous blunder. "Fine," as used in the expression "fine and recovery," means a method (now obsolete) of transferring land by means of a fictitious lawsuit. It has nothing to do with a money payment. But Mr. Robertson adduces as parallel passages to that cited from The Comedy of Errors lines from Dekker and Porter respectively, where the word "fine" is used in a totally different sense, viz. as meaning the premium on the grant of a lease! No better example could be found of Mr. Robertson's qualifications for instructing us on the subject of Shakespeare's knowledge of law. (59-61)
In the November 13, 1915, issue of The Nation, a reviewer of Greenwood's book writes, "When Mr. Robertson avows the belief that any intelligent man could pick up this vocabulary, as it were, in the streets, he delivers himself into the enemy's hand. When he quotes from Greene a passage about the 'recovery' of a debt as a parallel to Shakespeare's reference to a 'fine and recovery,' he puts himself on a level with the index-marker who wrote on 'Mill on Liberty and ditto on the Floss" (263).
With unusual "reasoning" Robertson responded to this reviewer in the January 1, 1916, issue of The Nation:
It seems brutal to cancel out this pretty piece of wit; but the statement is sheer hallucination. There is not the remotest suggestion in my book that the non-technical term "recovery" is a parallel to the technical term "fine and recovery." Till I read your reviewer's pronouncement it had never dawned on me that such an inference could be drawn. The passage from Greene was avowedly cited as showing "another lady" talking in the legal vein which Campbell declared to be proof of the author's "legal acquirements" when put in a woman's dialogue by Shakespeare. In the passage cited by Campbell several words are italicized, some of them occurring thousands of times in Elizabethan drama and ordinary literature. In later passages the common terms italicized by Campbell are freely paralleled. Your reviewer has raised an imaginary issue, and has thus wholly ignored the one really raised at this particular point. On his and Campbell's principles Greene was a trained lawyer if Shakespeare was. (510)
Is Robertson a Sophist? The reader may well ask, "How can Robertson create a parallel with words that do not have parallel meanings?" With more unusual "reasoning" Robertson responded to Greenwood directly in the January 1, 1916, issue of The Literary Guide. Here is his complete response:
Here I will merely remark that his attempt to convict me of identifying simple "fine" with "fine and recovery"—a blunder made before him by a reviewer in this journal, and copied thence by him—is worthy of the rest. The wording of my text explodes the pretence. Again and again I have "paralleled" legal phrases with absolutely different ones. The point is that the one set is as much evidence for legal knowledge or training as the other. (10)
No, Mr. Robertson, it's not. The point made by Lord Campbell is that Shakespeare used "recondite terms of the law" and showed evidence of being "familiar with some of the most abstruse proceedings in English jurisprudence." He cites Shakespeare's technical use of fine and recovery as an example. None of Robertson's "parallels" are technical. Robertson might as well be citing as "parallels" such words as arrest and case and judge, terms that are not recondite at all.
We can appreciate Greenwood's incredulity at Robertson's response in the March 1, 1916, issue of The Literary Guide:
He now asks us to believe that he did not cite the passage in question as showing that the word "fine" in the technical sense (as in "fine and recovery") was "a common figure in the drama of Shakespeare's day," but only as showing that the word, in its ordinary meaning, was such "a common figure"! In other words, he asks us to believe that he was guilty of the futility of citing the occurrence of the word "fine," in its common meaning of a money-payment, in writers contemporary with Shakespeare, as an example of their use of highly technical legal expressions! But "fine," a money-payment, is not a technical expression at all. Thus, on Mr. Robertson's own showing, his pronouncement, "There's nothing more technical in The Comedy of Errors," becomes an absurdity….
Well did Lord Campbell write: "Let a non-professional man, however acute, presume to talk law, or to draw illustrations from legal science, and he will very speedily fall into some laughable absurdity." (44)
The same may be true of Shakespeare, a point that further supports Shakespeare's having legal training. Robertson, though a Member of Parliament with access to a dozen books on Shakespeare's knowledge of law and legal dictionaries, and to many associates who are lawyers, once divested of his sources, stands revealed. Once again we see that it is Robertson who is ignorant of the law and not Shakespeare.
In his 1916 monograph Shakespeare's Law and Latin, Greenwood puts the cap on this episode:
But such are Mr. Robertson's parallelisms. Having no knowledge of law, he cannot discriminate between a really technical legal expression, such as might, possibly, be evidentiary of the "legal acquirements" of the writer, and a phrase which, though it may have some legal flavour about it, is yet but a commonplace every-day expression, from which no such inference can be drawn. (17)
We see here a stark contrast in the intellectual rigor between Robertson and Greenwood. Where Greenwood holds to principled intellectual integrity, Robertson willingly embarks on the exploitative rhetoric of the politician caught with his hand in the cookie jar.
Purchase
Robertson's inability to distinguish between technical legal expressions and their commonplace counterparts is not limited to fine and recovery. Robertson (who is not a lawyer, remember) attacks Grant White (who is a lawyer) for his claim that Shakespeare's use of the legal term "purchase" is remarkable (103):
The philological fact is that the sense of "acquisition," "a thing got," is the fundamental meaning of the word "purchase," of which the starting-point is the idea of the chase (Fr. Pourchasser), the product of hunting or foraging. It is the idea of buying that is secondary, thought that is now become the normal force of the word. (101)
"So far so good," responds Greenwood in Shakespeare's Law and Latin (31).4 But Robertson goes further:
That is to say, the so-called "legal" meaning of "acquisition" of property by one's personal action as distinct from inheritance" is the original meaning, and is the likely sense of the word in the whole feudal period. (101)
Robertson presents ten pages of examples where other dramatists use purchase in the simple sense of to buy. But Greenwood exposes Robertson's sloppiness:
Now, I was at first puzzled to know whence Mr. Robertson takes his definition of "the so-called 'legal' meaning" of the word "purchase," which he marks as a quotation. I find, however, in the Oxford Dictionary, under the word "purchase," the following: "(5) Law. The acquirement of property by one's personal action as distinct from inheritance." So that perhaps I should not be wrong in assuming that Mr. Robertson has taken his definition from that source. Now, the Oxford Dictionary is generally a pretty safe guide; but in this instance it is not so, for the definition is obviously inadequate. In the first place, for "property" we ought to read "real property," or "land," seeing that the term "purchase," in the "legal" sense, has no application to "personal" property. And, secondly, one may take land by "purchase," in the "legal" sense, without any "personal action" of one's own, for "purchaser," in the "legal" sense, includes those who have received land as a gift, or upon whom it has been settled before they were born, and even heirs-at-law, who would otherwise have inherited, if they take by a devise not in accordance with the course of descents. If Mr. Robertson had looked further down in the Oxford Dictionary, under the word "purchase," supposing he consulted it on this point, he would have found the following quoted from Wharton's Law Lexicon: "An acquisition of land in any lawful manner, other than by descent or the mere act of law, and includes escheat, occupancy, prescription, forfeiture, and alienation"; and under "purchaser" he would have found this quotation from Blackstone's Commentaries: "The first purchaser...is he who first acquired the estate to his family, whether the same was transferred to him by sale, or by gift, or by any other method, except only that of descent...If I give land freely to another, he is in the eye of the law a purchaser." Or, turning to Williams on Real Property (21st edition, p. 227), he might have read: "The word purchase has in law a meaning more extended than its ordinary sense: it is possession to which a man cometh not by title of descent: a devisee under a will is accordingly a purchaser in law." (31-32)
Greenwood alludes here that Robertson's literary mind may be in play, but that is no substitute for a legal mind. Robertson's simple reliance on, and mistaken use of, the OED betrays him. Like his "parallels" for fine and recovery, Robertson tries to parallel Shakespeare's use of the technical legal meaning of purchase with dozens of examples of other dramatists' use of the word's common meaning. Because he is either unable or unwilling to address Greenwood's point, he addresses, at great length, something that is beside the point. Such equivocation is de rigueur for Robertson.
The Devil's Law Case
What's important to note in the previous two examples is that Robertson throws out dozens of examples of contemporary writers using the same terms (even when used in other than their technical legal sense) expecting to make a case that Shakespeare's knowledge of law is nothing unusual—that in fact, other dramatists who were not lawyers used more law terms more technically.
In Did Shakespeare Write 'Titus Andronicus'? Robertson writes: "Mr. Devecmon points out that in Webster's The Devil's Law Case there are 'more legal expressions (some of them highly technical, and all correctly used) than there are to be found in any single one of Shakespeare's works'" (54). Neither critic provides support for that statement, but decades later, it is still advanced in virtually identical words by O. Hood Phillips: "Webster's The Devil's Law Case contains more legal expressions, some of them highly technical and all correctly used, than are to be found in any single one of Shakespeare's works" (187).
Greenwood responds to Devecmon and Robertson in The Shakespeare Problem Restated:
Now if this statement were true, the answer would be that the subject of the play is a "Law Case," and that, therefore, the work was naturally full of legal expressions, and, further, that doubtless the brilliant author had well got up his subject for the purposes of the drama; whereas the proposition concerning Shakespeare is that his knowledge not only of legal terminology, but of legal principles and of the habits and customs of lawyers, had become so much a part of his life and character and mental equipment that it was always showing itself even when very little appropriate to the subject on hand.
But the fact is that the statement as to The Devil's Law Case is not only not true, but so preposterously contrary to the truth that one can hardly believe that Mr. Devecmon had read the drama in question. There is, incredible as it may sound, practically no law at all in Webster's play! There are, indeed, a few legal terms such as "livery and seisin," "a caveat," "tenements," "executors," thrown in here and there, and there is an absurd travesty of a trial where each and everybody—judge, counsel, witness, or spectator—seems to put in a word or two just as it pleases him; but to say that there are "more legal expressions" in the play "(and some of them highly technical and all correctly used) than are to be found in any single one of Shakespeare's works" is an astounding perversion of the fact, as any reader can see who chooses to peruse Webster's not very delicate drama. I cannot but think that Mr. Robertson had either not read the play, or had forgotten it when he quoted this amazing passage. (397-398)
Strong words. And they evoked a strong reaction from Robertson, who declares up front:
I am quite willing to stake the entire question upon this issue. Mr. Greenwood might, I think, have taken the trouble to collate the legal references in The Devil's Law Case, and compare them with Lord Campbell's citations from any one Shakespearean play: it would have been more to the purpose than any amount of simple asseveration, however emphatic. He would thus have learned that the "few" legal terms which he dismisses as of no account are exactly on a par with most of those cited by Campbell from Shakespeare (only more realistic), and with those cited by Grant White in a passage which he himself has quoted with approbation. Having read Webster's play thrice—which is more, I fear, than Mr. Greenwood had done by Campbell's book—I will make good his omission. The following "legal" phrases are cited as they come, Act by Act. (Heresy 157-158)
And Robertson does precisely that for two pages. The terms are those of property law, and 30 years later Clarkson and Warren compile a list of only 14 distinct property law terms in Webster's play. (They cite three plays from Shakespeare that exceed that number, including Hamlet.) So in strict numbers, Greenwood is proved right. But the number is not really Greenwood's point, which Robertson has missed completely:
How Mr. Greenwood, in the face of all this matter, can say that Mr. Devecmon's assertion "is an astounding perversion of the fact," I cannot understand.…I am not concerned to go into the question of the accuracy of Webster's or Massinger's phraseology: that is neither here nor there. Even Campbell, in flat contradiction of his own claims, admitted inaccuracies in Shakespeare; and Mr. Greenwood, in turn, fatally pressed by Mr. Devecmon, makes further admissions, forgetting that they absolutely destroy his own case, which rested not upon mere citation of legal matter in Shakespeare, but upon the repeated claim that Shakespeare's law was impeccable, never open to demurrer or writ of error, and therefore possible only to one within the freemasonry of the profession. It may be left to either lawyers or laymen to judge for themselves whether there is not much more show of legal knowledge and recourse to legal phraseology in Webster than in Shakespeare. From twenty-three of Shakespeare's plays, Lord Campbell can cite on the average only two or three legal allusions apiece: Webster's one play yields over thirty. I do not for a moment pretend that they exhibit "deep" or "accurate" knowledge: I leave these follies to the other side, who profess to certify a dramatist's lawyership on grounds that would move a policeman to derision. The question is whether Webster's multitude of "legalisms" do not, by every principle on which Lord Campbell proceeded in his extracts and his comments, exhibit tenfold more preoccupation with legal matters than do Shakespeare's, and, by mere variety of allusion, far more "knowledge." (Heresy 161-162)
Greenwood's response presses home his original point that Robertson either fails to grasp or purposefully avoids, the fact that the question is best dealt with qualitatively:
Presuming that by "the entire question" he means the question whether or not Shakespeare's works (Plays and Poems) show, as a whole, and speaking generally, more knowledge of law than the works of other poets and dramatists, his contemporaries, for whom we are not justified in assuming any special legal training or opportunity for acquiring legal knowledge, I am quite content to accept this challenge. I repeat that The Devil's Law Case shows no knowledge of law whatever on the part of its author. On the contrary, one might be astonished that in a play the subject of which is a "law case" there should be such a dearth of anything that a lawyer can recognise as "law," were it not for the fact that the whole thing is, of course, in the nature of an extravaganza. A clever writer like Webster, if he had been seriously engaged in writing a legal drama, would no doubt have got up his law beforehand, and in that case we might, certainly, have been treated to many "legal expressions, some of them highly technical and all correctly used." As it is, considering the nature of the play in question, it is not surprising that such expressions are conspicuous by their absence.
Here I must advert to what seems to me a very naïve observation made by Mr. Robertson with reference to the works of dramatists contemporary with Shakespeare, viz. "Where Shakespeare merely uses legal phrases, as often as not metaphorically, the other dramatists introduce actual matters of litigation." My comment here is: "Exactly so." When "the other dramatists" introduce "actual matters of litigation," they, as a natural and inevitable consequence, introduce also legal terms and expressions, more or less correctly used. The contention with regard to Shakespeare is that he introduces such expressions (whether "metaphorically" or otherwise) where there is no necessity for them, and sometimes where they seem not a little out of place, or even "inartistic,"—pace Mr. Robertson. A man who puts on the stage "matters of actual litigation" must talk law as well as he can, and, doubtless, if a clever man, though no lawyer, he can get up his law well enough to avoid making many mistakes, or he may get a lawyer friend to help him. But the man who is himself a lawyer, or who has had some legal training, is frequently apt to bring in legal phrases and expression, maxims and metaphors, on occasions when they would not suggest themselves to an ordinary layman, or where he might think them actually mal à propos....
And here let me commend to Mr. Robertson's consideration words which I have recently lighted upon in a little book entitled Was Shakespeare a Lawyer? by a barrister who contents himself with the initials "H. T." Shakespeare, writes this author (p. 4), shows that he was well acquainted with law, because "when he allows any of his characters to speak law, they not being professional lawyers, he makes them talk nonsense. In this he evinces a professional pride—a sentiment which is common to men of all professions; hence non-professionals are allowed to lay down bad law and to misuse legal words. On the contrary, when his lawyers speak, their doctrine is always sound, and their technical terms are correct."This criticism well illustrates the point I have endeavoured to make clear. A lawyer writing in his own personal capacity will use correct legal terms. A lawyer dramatist will make legal characters use correct legal terms; but, if he is a skilful and artistic dramatist, he certainly will not make his lay characters speak in the technical language of the trained lawyer. (Problem 79-90)
Robertson is silent after this response from Greenwood.
What are we to make of this debate, keeping in mind that there are dozens of other issues on which these two men debate, each with the same revelation of Greenwood's clarity and Robertson's inability to grasp Greenwood's points? At the very least we would suspect that later writers would deal with Greenwood's qualitative points and acknowledge that Robertson had been bested. But we find nothing of the sort.
Footnotes
1. Robertson replies: "In an amusing footnote he quotes from my book on Titus Andronicus the phrase 'putting a few necessary caveats.' 'No lawyer,' he comments, 'would speak of "putting a caveat." The legal term is to 'enter a caveat.'' And the compiler of his index sternly clinches the matter by the entry, 'Robertson, Mr. J. M., betrays his ignorance of law, 372, note.' the most amusing matter of all, perhaps, is that I happen to have spent four and a half years of my youthful life in a law office. But it was a Scotch office…and in Scotch law they do not, to my recollection, speak of 'caveats,' which word is therefore for me simple English, and not 'jargon.' 'Enter a caveat' is a phrase well-entitled to the latter label." (175) Greenwood replies in Is There a Shakespeare Problem?: "I do not quite understand the reference to 'jargon,' but I note that 'caveat' is for Mr. Robertson 'simple English,' though for most others it is simple Latin. I will not controvert Mr. Robertson's statement that this is 'the most amusing item of all,' though whether the humour be 'English' or 'Scotch' I do not quite know; but I fear Mr. Robertson must have 'smiled a sort of sickly smile' at the joke of his having spent four and a half years of his youthful life in a Scotch law office with results rather literary than legal, and, though I deplore the unfortunate language made use of by my indexer, I must still assert that the instance I selected from Mr. Robertson's book on Titus is an extremely appropriate one, and that 'no lawyer would speak of "putting a caveat"" (39). This exchange typifies Robertson's willingness to avoid his own faults and attempt to misdirect the reader. back2. Clarkson and Warren, 1945, The Law of Property; James McManaway, 1962, The Authorship of Shakespeare; H. N. Gibson, 1962, The Shakespeare Claimants; Milward Martin, 1965 Was Shakespeare Shakespeare?; George Keeton, 1967, Shakespeare's Legal and Political Background; O. Hood Phillips, 1972, Shakespeare & the Lawyers; Daniel J. Kornstein, 1994, Kill All the Lawyers?. back
3. The Arden editor's note for with fine and recover: "Both 'fine' and 'recovery' have more than one meaning in law, but almost certainly the reference here is to the processes, based on legal fiction, by which an entailed estate is transferred. Mistress Page would thus mean, in short, that unless the devil's title to Falstaff is now final, beyond any possibility of change, Falstaff will not err in this way again." And then in parentheses, without any supporting evidence, the editor states, "(Elizabethans were particularly interested in legal procedure, and Shakespeare's knowledge of law is not exceptional.)" Au contraire. back
4. Although Greenwood responds to Robertson's attack in Is There a Shakespeare Problem?, with more back and forth between the two in The Literary Guide, Greenwood is most cogent in his response in Shakespeare's Law and Latin. back
Previous | Contents | Fellowship Home | Next