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)
VI. Shakespeare's Legal Mind
Table Four: Shakespeare's Legal Mind
Writer's skeptical of Shakespeare's knowledge of law appear in Bold.
1942 Clarkson & Warren The Law of Property in Shakespeare 1965 Mark Andrews Law v. Equity in The Merchant of Venice 1967 George Keeton Shakespeare's Legal & Political Background 1972 O. Hood Phillips Shakespeare and the Lawyers 1973 W. Nicholas Knight Shakespeare's Hidden Life 1982 Jack Benoit Gohn "Richard II: Shakespeare's Legal Brief on the Royal Prerogative and the Succession to the Throne" The Georgetown Law Review 1994 Daniel Kornstein Kill All the Lawyers? 1995 Eric Sams "The Law-Clerk" The Real Shakespeare 2000 Sokal and Sokal Shakespeare's Legal Language - A Dictionary 2001 J. Anthony Burton "An Unrecognized Theme in Hamlet: Lost Inheritance and Claudius's Marriage to Gertrude" The Shakespeare Newsletter Skeptics of Shakespeare's legal knowledge tend strongly to rely on quantitative data: counting the number of legal terms used, and comparing the number of technical legal terms used among dramatists. In those rare cases where they address qualitative arguments, their response is perfunctory. For example, they will point to Shakespeare's trial scenes and then supply examples of other dramatists who were not lawyers yet were able to construct a legally accurate trial. They stick to the landscape of literalness.
The case for Shakespeare's having had some kind of extensive legal training, formal or informal, must rest on three kinds of qualitative arguments:
1) His extensive use of legal terms is completely accurate.
2) He uses legal terms, not only in their applicable technical use, but also in instances that have no bearing on the drama. In other words, he uses legal terms as metaphors, demonstrating the kind of deeper grasp of their use that generally arises from deep and long-term study, and that tends to develop a mature metaphorical legal mind.
3) He demonstrates in his dramas a historical and philosophical grasp of law that transcends the mere rewriting of Holinshed's Chronicles. He exhibits the kind of deep and searching understanding of law and legal questions that is the domain of one who has had legal training, who has read legal works extensively and thoughtfully, and who has engaged in extensive legal conversations with like-minded students of law. In short, he exhibits a mature philosophical legal mind.
This section focuses on the latter two arguments. And in the process, we will see that when skeptics are not thinking about the question of Shakespeare's legal training, they inadvertently supply evidence for the supporters. In fact, all the authorities cited as support in this section are skeptics.
A Mature Metaphorical and Philosophical Legal Mind
Supporters tend to cite Hamlet's famous speech in the grave-digging scene as an example that only a trained lawyer could have written the speech:
Ham. There's another: Why may not that be the skull of a lawyer? Where be his quiddities now, his quillets, his cases, his tenures, and his tricks? why does he suffer this rude knave, now, to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Humph! This fellow might be in's time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries: Is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? will his vouchers vouch him no more of his purchases, and double ones, too, than the length and breadth of a pair of indentures? The very conveyances of his lands will hardly lie in this box; and must the inheritor himself have no more? ha? (Act V. Sc. 1. 96-110)
Grant White points out that "the hunting of a metaphor or conceit into the ground is a fault characteristic of Elizabethan literature." He supplies a parallel in George Wilkins's The Miseries of Enforced Marriage, claiming that this kind of piling on of figurative of law phrases supplies little support and that Hamlet's speech is not much use as evidence:
Doctor. Now, Sir, from this your oath and bond,
Faith's pledge and seal of conscience, You have run,
Broken all contracts, and the forfeiture
Justice hath now in suit against your soul:
Angels are made the jurors, who are witnesses
Unto the oath you took; and God himself,
Maker of marriage, He that hath seal'd the deed,
As a firm lease unto you during life,
Sits now as Judge of your transgression:
The world informs against you with this voice,
If such sins reign, what mortals can rejoice?
Scarborow. What then ensues to me?
Doctor. A heavy doom, whose execution's
Now served upon your conscience. (White 99)As much as I hate to disagree with Grant White, I believe these two passages are not parallel. Wilkes uses legal terms that are much more likely to be generally known: oath, bond, seal, contracts, forfeiture, suit, jurors, witnesses, seal'd, deed, lease, Sits, Judge, informs, doom, execution, served. The metaphors tend to be sosimple and obvious, even to a modern layman that they would hardly need annotating. Now compare those terms to Shakespeare's: quiddities, quillets, cases, tenures, action, battery, statutes, recognizances, fines, double vouchers, recoveries, vouchers, purchases, double ones, indentures, conveyances, inheritor.
Both use seventeen law terms. But the modern reader of Hamlet will be driven to the footnotes to grasp the humor of this opaque passage. Let's look at how the Arden editor glossed these:
[quiddities . . . quillities] quibbling arguments. The second word appears to be a mere variant of the first, which referred originally to the sophistical arguments of the schools concerning the quidditas or essential nature of a thing and afterwards to fine legal distinctions.1
[tenures] terms on which property is held.
[his action of battery] i.e. his liability to an action for assault.
[his statutes, his recognizances] Often coupled together, the recognizance being a bond acknowledging a debt or obligation, the statute (statute merchant or state staple, according to the manner of record) securing the debt upon the debtor's land.
[fines . . . recoveries] A fine (an action leading to an agreement calling itself finalis concordia) and a recovery (a suit for obtaining possessions) were procedures for effecting the transfer of estates when an entail or other obstacle prevented simple sale. A voucher in a recovery suit was the process of summoning a third party to warrant the holder's title, and the customary double voucher involved a second warrantor.
[the fine] the final result. This begins a series of four different meanings for the same word (handsome pate, powdered dirt).2
[the recovery] the whole gain.
[pair of indentures] a deed duplicated on a single sheet which was then divided by a zigzag (indented) cut so that the fitting together of the two parts would prove their genuineness. All the land the purchaser finally has (his grave) is no bigger than the indentures which convey it.
[inheritor] acquirer (382, 383)
Now the reader may be excused for thinking that even these notes need to be glossed. What immediately becomes clear is that we are dealing here with a deep and penetrating mind, one that is not only well-versed in the terminology, but one capable of exploiting the nuances of the meanings to superb and razor-sharp effect. Take for example the passage on fines: "Is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt?" The four meanings of "fine" here are worth explicating. The fine of his fines means the final result (Latin fine as in "the end") of his fines (the legal term for an action leading to an agreement). Shakespeare then plays those meanings into "fine pate full of fine dirt" (a handsome head full of finely powdered dirt). But the Arden editors have missed an even deeper pun. Over 100 years earlier in Shakespeare a Lawyer, Rushton pointed out that the final fine could also mean "the end," and that "his fine pate is filled, not with fine dirt, but with the last dirt that will ever occupy it, leaving a satirical inference to be drawn, that even in his lifetime his head was filled with dirt" (10).
These kinds of wordplay on legal terms would not be the kind of wordplay you would find in a Stratford tavern. These are the wordplay of law students attending one of the Inns of Court, like Gray's Inn, where would-be lawyers are trained. Passages like these point to a legal mind that has associated with other legal minds.
In Antony and Cleopatra, Lepidus speaks of Antony's faults, and uses the legal term purchase as a metaphor (used properly to mean real estate acquired in a manner other than descent-that is, other than by hereditary):
His faults, in him, seem as the spots of heaven,
More fiery by night's blackness; hereditary
Rather than purchas'd. (Act I, Sc. IV, 12-14)Robertson cites over 120 examples of other dramatists who used the term "purchase," and not one of them is an example of a metaphorical use of "purchase" in its technical legal meaning. Furthermore, since Robertson was apparently trying to be thorough, it is rather astonishing that he would not stumble upon a single example of its technical legal meaning even in a non-metaphorical usage.
Clarkson and Warren find only one other dramatist, Fletcher, who uses the technical term as a metaphor, but Fletcher always collaborated. He framed the larger issues of his dramas and collaborated with others to supply the details. His collaborators (as cited by Clarkson and Warren) all had legal training: Francis Beaumont, of the Inner Temple; John Ford, of the Middle Temple; and James Shirley, of Gray's Inn. Clarkson and Warren leave the impression that since only one other playwright (who collaborated with lawyers) used the word in the way Shakespeare did, there is nothing unusual about Shakespeare's knowledge of law.3
George W. Keeton also points out Shakespeare's use of purchase in Henry IV, Part II, saying, "Again, the reader is impressed by Shakespeare's accurate use of the term 'purchase.'" (30) Although Keeton takes the orthodox position that Shakespeare's use of legal terms is nothing unusual, he cannot help but reveal his discomfort with that notion:
There are, however, many allusions in the plays which cannot be so readily explained. The interesting problems presented by The Merchant of Venice, and by Shakespeare's knowledge of the famous case of Hales v. Petit, will be discussed later. These are major matters. No close reader of the plays can fail to be impressed by the number of extraordinarily apt, and usually incidental, references to incidents (sometimes quite minor) of legal procedure of which the dramatist so effortlessly avails himself. (29, italics added)
Writing in 1967, Keeton demonstrates that he is familiar with the early history of the argument, citing Campbell, Rushton, Grant White, Devecmon, Robertson, Greenwood, Plunket Barton, and Clarkson and Warren. And although he comes down on the side of Robertson, and Clarkson and Warren, he can still say this:
Those [legal allusions] collected by Campbell are by no means exhaustive, but they are nevertheless extremely impressive. Some of them were near the surface of Shakespeare's inventive brain. There are numerous references to bonds, often with a clear appreciation of their legal consequences. References to leases are frequent, both in the Plays and in the Sonnets. Indeed, it is a striking fact that the Sonnets (written by Shakespeare as a youth) are possible the richest in such references, and the lawyer can only admire the richness of the imagery which these allusions create. (29, italics added)
Notice that Keeton is not saying that Shakespeare merely used technical legal terms. He is saying that he used them in such a way that demonstrate their being "near the surface" of his brain, and that the richness of the imagery are worthy of admiration by other lawyers. This is the kind of language that Lord Campbell and Lord Penzance used decades earlier. Are we then to expect that the creator of such richness of legal imagery, who demonstrates such "clear appreciation," such invention near the "surface of his brain," whose allusions are "extremely impressive," especially to lawyers, was not himself legally trained? The mind boggles.
But there's more. Keeton points to lines in "Sonnet 13":
So should that beauty which you hold in lease
Find no determinationIn legal parlance, a lease is always determined, when it is brought to an end. Admittedly, Shakespeare as a property-owner knew something of leases, but would he automatically, and so felicitously, have spoken of a lease's determination, had he been completely innocent of legal education? For anyone less than Shakespeare, "determination" would be an awkward word to use in a sonnet. (29-30, italics added)
Keeton wants to believe that Shakespeare had a legal education, but he is constrained by the conventional biography that fairly clearly admits no legal education for Shakspere of Stratford. So what does Keeton do? With the phrase "For anyone less than Shakespeare" he supplies an escape using a form of the Satan Maneuver. Shakespeare's genius allows him to do without training what others could only do with training.
Among many more examples, Keeton finds a particularly noteworthy one, previously mentioned, in The Merry Wives of Windsor:
Scattered though the plays there are frequent references to the fee simple, and a number also to fines and recoveries, both of which were common modes of establishing title to freehold land in Shakespeare's day; but in The Merry Wives of Windsor (Act II, Scene ii) we have a striking simile from Ford. When asked the quality of his love, he replies:
Like a fair house built on another man's ground; so that I
have lost my edifice by mistaking the place where I erected it.What a sudden flash of legal knowledge, to appear in such a context!4 (31)
Again, what impresses Keeton in this passage is how apparently irrelevant the legal allusion is to the context. Keeton implies that Shakespeare must have this kind of knowledge imprinted on his brain to be able to access it in such a context. And how does one acquire such imprinting? Through training, through skilled associations, through long-term and deep study. Daniel Kornstein also finds the Shakespeare plays full of law, with over 20 of them containing trial scenes:
Several other plays have many comments on the problems of law, lawyers, revenge, equity, government, the nature of the state, the nature and transfer of power, inheritance, and contracts.
Taken together, the plays reflect much knowledge of legal intricacies. Legal themes of one kind or another run throughout. And woven all though, liked barbed wire sewn into a tapestry, are deftly cutting observations about law and lawyers, each glinting shard designed to draw just a little blood from the legal profession. Even where there are no legal terms and allusions, the plays have a style of philosophical debate and discourse aimed at lawyers. Law is essential to our understanding and interpretation of Shakespeare's works: great art is often inspired by a passion for justice. (xii)
He goes on to paraphrases William Carlos Williams: "Shakespeare is the greatest law school of them all" (xiii). Kornstein then exhibits the split consciousness of one who acknowledges Shakespeare's extraordinary and deeply rooted legal knowledge, but excuses it as something that could easily be acquired "by common reading, conversation, and life experience in legal London" (xiii). But he does not seriously examine the implied questions he raises: Is there evidence in Shakespeare the writer of uncommon legal reading? Did Shakspere the man have the kind of legally trained associates who would spend extraordinary time educating and discussing technical matters of law and legal philosophy? Does Shakspere's legal experience cover the law in the plays?
Lord Campbell, Keeton, and many other writers have mentioned that the graveyard scene in Hamlet reveals that Shakespeare had read Plowden's report on the case of Hale v. Petit. The case involved the action by Hale's widow on a lease that was granted by the Crown to Petit. Sir James Hale, a Judge of the Common Pleas, was imprisoned for participating in a conspiracy to make Lady Jane Grey queen. He was released after being induced to renounce his Protestant principles. Apparently the episode deeply affected him, for he first attempted to commit suicide by opening his veins with a knife, and later succeeded by drowning himself in a river. The inquest ruled felo de se (a murderer of himself), he was buried at a crossroads, and all his lands were forfeited to the crown. The property in question was granted jointly to him and his wife by the Archbishop. The widow tried to argue that, since forfeiture can only occur for an event during Hale's lifetime, that the property was not forfeit. Suicide was an act of a person killing himself, and therefore it was not an act that could occur during his lifetime. The widow lost.
So when the clowns argue over Ophelia's burial, they are parodying the arguments of Hale v. Petit:
Grave. Is she to be buried in Christian burial, when wilfully seeks her own salvation?
Other. I tell you she is, therefor make her grave straight. The crowner hath sat on her, and finds it Christian burial.
Grave. How can that be, unless she drowned herself in her own defence?
Other. Why, 'tis found so.
Grave. It must be se offendendo; it cannot be else. For here lies the point: if I drown myself wittingly, it argues an act; and an act hath three branches—it is to act, to do, to perform; argal, she drowned herself wittingly.
Other. Nay, but hear you, Goodman Delver—
Grave. Give me leave. Here lies the water—good: here stands the man—good. If the man go to this water and drown himself, it is, will he, nill he, he goes; mark you that. But if the water come to him and drown him, he drowns not himself. Argal, he that is not guilty of his own death shortens not his own life.
Other. But is this law?
Grave. Ay' marry is't, crowner's quest law. (Act V. Sc. 1. 1-22)The humor of this passage would only be caught by those who were familiar with the Hale v. Petit case. The gravediggers mangle the terms ("argal" for ergo, "crowner's quest" for coroner's inquest). But there are two problems with assuming that this passage would be understood by a general audience. First, the case was decided in 1561. Therefore, while such a case would stay with students of law for many decades to come, it is unlikely that such a case would be in the public mind 40 years later when Hamlet was published. Second, Plowden's Reports are not written in English. They are written in Norman French, or law French,an uncommon technical language restricted to lawyers, judges, and law students. They were not translated. So this passage constitutes evidence that Shakespeare read law French, as students of law would, and furthermore supports the view that he associated with other students of law. Keeton, for one, recognizes Shakespeare's acuity in this passage:
That Shakespeare was familiar with the reasoning in this highly interesting decision is scarcely open to question, but it should be noticed that the gravedigger correctly takes a further point. In Hales' case, it was not disputed that he threw himself into the water. He was therefore rightly found guilty of suicide; but the core of the first gravedigger's argument is that, in Ophelia's case, the water came to her, that is, that she accidentally drowned or, at the very least, she could not be proved to have deliberately drowned herself. (188)
But Keeton fails to mention that the case was not available in English.
Almost 100 years earlier, another lawyer, R. A. Guernsey in Ecclesiastical Law in Hamlet: The Burial of Ophelia, saw the entire scene as strong evidence that Shakespeare had mastered the ecclesiastical law regarding suicide. Acknowledging that the gravedigger's dialogue is always discussed by writers, Guernsey points out that none note all the law present in the scene, law that goes beyond the case of Hale v. Petit.
No law writer has yet stated the English law relating to suicides so completely as is done in Hamlet. I have mentioned this fact in my recently published "History of the Penal Laws against Suicides," but as all the parallels and allusions contained in the play were not there pointed out, I will now attempt to fully give them. Shakespeare has accurately stated the laws of the Church and of the Statutes in England, at the time he wrote, and not the laws of Denmark, in Hamlet's time. (6)
Keeton also points out that evidence exists for Shakespeare's command of international law.
In mediaeval warfare [heralds] had an exceedingly important function, and must necessarily be of gentle birth. They are obsolete in modern International Law, and were becoming so in Shakespeare's time. Nevertheless, where Shakespeare makes use of them he does so with strict accuracy. (87)
And in King John Keeton discusses how Shakespeare shows that he understands the law of bastardy in ways that go beyond the source play, The troublesome Reigne of John, King of England. For the trial scene, Keeton takes issue with a note by Furness in his edition of the play where he claims that "Shakespeare was 'out on his law.' On the contrary, John's judgment is strikingly accurate." (127-8) But Keeton does not stop there:
From first to last, this lengthy trial scene abounds with legal absurdities, and possibly no other of Shakespeare's plays illustrates so clearly the nature of his art as applied to legal topics. If it would be putting it too high to say that Shakespeare had fully mastered the law of bastardy, as it existed in his day, it is nevertheless true that he showed the same close and (in general) accurate observation on legal topics as on many others, and that this accurate observation is one of the distinguishing features of Shakespeare's dramatic art. (130-131, italics added)
Again, the mind boggles that Keeton would align himself with the skeptics. Page after page, Keeton gives evidence for Shakespeare's legal education and deep study, and time after time he uses the Satan Maneuver to get out of what is otherwise clear: Shakespeare was more than just an observer of law. He was trained.
Where Hale v. Petit and King John demonstrate not only a knowledge of technical law but also the philosophy of law, another lawyer has found greater evidence of Shakespeare's command of the history and philosophy of law pertaining to the succession to the throne. Lawyer Jack Benoit Gohn wrote a 1982 article for The Georgetown Law Journal on Richard II and the way that the play could be presented as a legal brief. Gohn points out how Shakespeare grasped the importance of law, especially as it affected human history. By examining the legal arguments in Richard II, he demonstrates that "Shakespeare used the historical overthrow of King Richard II to justify the absolute power of the monarch and also provide for a method of choosing the monarch's successor when the rules of succession failed" (943). Furthermore, Gohn contends that Shakespeare used the play as an example of how to resolve the problem of succession regarding Queen Elizabeth, by depicting a nation in a midst of constitutional crisis, and the consequent breakdown of the legal order. Gohn's judgment of the author is strong: "Shakespeare had both the legal and the historical sophistication to grapple with these problems" (955).5
Shakespeare's mind is comprehensive indeed, and many writers have commented on it, to the point that the reader wonders how such an individual could have acquired such a range and depth of topics. But there is another interesting aspect to Shakespeare's mind. One writer recently wrote:
The filaments of his thought are astonishing in their variety....one can find pragmatism, atheism, (nineteenth-century) liberalism, materialism, aestheticism, utilitarianism, militarism, biological, social, and historical Darwinism, skepticism, nihilism, Nietzschean vitalism and 'will to power,' Calvinism, logical positivism, stoicism, behaviorism, and existentialism, together with the explicit rejection of most of these 'isms'.... (Posner xix-xx)
Sound familiar? Such a description has often been noted about Shakespeare's mind. But this passage was not written about Shakespeare. The author, a Federal Circuit Court judge, wrote that passage about Supreme Court Justice Oliver Wendell Holmes. In other words, the description above opens the door to an intriguing probability—that the Shakespearean mind was not that of a lawyer, but rather was that of a judge. How so?
The Shakespeare mind displays a remarkable objectivity, the kind of objectivity and equipoise that allows the reader to find a variety of philosophies and positions in the writings. As stated by Russ McDonald in Shakespeare and the Arts of Language:
[T]he dramatist encourages in his audience a receptiveness to multiple points of view, a refusal of absolutes, an awareness of the competing claims of incompatible interpretations. (49)
The consciousness of a lawyer is that of an advocate, one who takes sides, one who argues for or against something. The consciousness of an experienced judge is quite different. The judge examines all sides, tries to understand and argue for and against all sides. A judge who responds to the complexity of human action and experience often distrusts the easy fix, the quick solution, the thoughtless procedure or rule or custom. Judges experience over time how both sides of a case can be valid. And how a case can uncover deeper related issues. The profession of a judge molds a thoughtful mind into one of remarkable and profound objectivity, depth, and range—exactly what we find in Shakespeare.
Chief Justice John C. Wu in Fountain of Justice, in an essay discussing "Natural Law in Shakespeare," presents a series of examples punctuated by summary statements that support the notion that Shakespeare has the mind of a judge:
Shakespeare… know[s] his common law and natural law pretty well. He knows the psychological reason for case law….He knows the importance of tempering the rigours of the law with equity…He knows the importance of observing degree, proportion, form and order, which to him are objective standards of right and wrong because they have an ontological basis….No one has painted more vividly 'the majesty and power of law and justice'. (86-87)
Footnotes
1. I cannot help but note how amusing it is that so many skeptics argue that Shakespeare did not have an unusual degree of learning, especially in the Latin and the classics, while any perusal of the notes to almost any Shakespeare play will reveal the incredible learning required of the learned editors who attempt to explicate the plays. back2. Mr. Robertson's ghost, and all those later writers who approve of Robertson, please take note that not one of the four meanings of fine need have anything to do with a money payment. back
3. Clarkson and Warren spend five pages trying to explain away Shakespeare's use of "purchase" (102-106). These are worth reading to see how skeptics use convoluted logic to avoid a logical, but politically uncomfortable, conclusion. back
4. This passage is cited by Campbell, who says, "Now this shows in Shakespeare a knowledge of the law of real property, not generally possessed. The unlearned would suppose that if, by mistake, a man builds a fine house on the land of another, when he discovers his error he will be permitted to remove all the materials of the structure, and particularly the marble pillars and carved chimney?pieces with which he has adorned it; but Shakespeare knew better." Robertson ridicules Campbell mercilessly claiming that literally millions know this law (Heresy 40), and Greenwood follows by demonstrating Robertson's faulty reasoning (Shakespeare's Law and Latin 19-20). back
5. In order to suck from the reader's mind any notion that Shakespeare might have had legal training (as his entire article implicitly argues), Gohn immediately supplies the vacuum: "The source of Shakespeare's legal knowledge might have been his personal background. John Shakespeare, his father, had been a party to over fifty lawsuits, and Shakespeare himself was ether a litigant, witness, or party to a number of real estate conveyances. But beyond that the level of legal sophistication in Elizabethan England seems to have been high." back
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