Sunday, June 5, 2011

Shakespeare a Lawyer? - 22a - Falconbridge

Was Shake-Speare a lawyer?

Part 22  (1 of 2)

Valid Pointers to Shake-Speare being a Lawyer

1. Falconbridge v Falconbridge, and the law of bastardy

In King John 1.1.49ff, Phillip and Robert, the two reputed sons of the late Sir Robert Falconbridge, each claim to be his lawful heir entitled to his lands. The dispute is brought for trial before King John himself, as in those days it could be. The Clarkson and Warren account of the matter is incomplete (see their pp. 189 and 213-5, their book was mentioned in the first post in this series) because they reserve the evidential questions it raises to one of their later projected volumes which have never materialised. But the trial (of only about 100 lines) is fully treated by George W. Keeton, in his Shakespeare's Legal and Political Background, pp. 118ff.

Robert, the younger son, alleges that, although he and Philip were born to Lady Falconbridge, Philip's true father was King Richard I, Coeur de Lion, brother to King John. Robert advances three reasons for his contention that Philip is not Sir Robert's lawful heir: (a) That Sir Robert was abroad at the time when Philip was conceived; otherwise Philip's birth would have had to be 14 weeks premature - an impossibility. But at the time of conception Richard I lodged at Lady Falconbridge's house; (b) That on his death bed Sir Robert denied paternity of Philip; (c) That on his death bed Sir Robert made a Will devising his lands to Robert.

Philip makes no attempt to deny these facts. And King John accepts that Philip is the biological son of Richard I. Yet he gives judgment for Philip. He begins (to Robert):

    "Sirrah, your brother is legitimate;
     Your father's wife did after wedlock bear him,
     And if she did play false, the fault was hers;
    Which fault lies on the hazards of all husbands
    That marry wives".

This correctly states the basic rule that a child born to a man's wife during lawful wedlock is his legitimate offspring. There were, however, exceptions. King John does not state any. So Shake-Speare may have been unaware of them; or omitted them to keep the judgment simple; or thought them irrelevant to the facts of the case John was trying. According to Bracton in his De Legibus, written about 50 years after the end of King John's reign (1186-1216), there were four grounds on which the presumption of legitimacy could be rebutted. Two of the grounds are irrelevant to the facts of Falconbridge v Falconbridge, and so need not be stated. A third ground (exception) was that the husband had always repudiated the child as not his. But Sir Robert had only repudiated Philip on his death bed. The fourth ground was the absence of sexual intercourse with the husband at the time of conception. But some time after the reign of Henry III (1216-1272) the third ground was dropped from the law and the fourth ground was tightened so that absence abroad by the husband had to be proved during the whole period of the pregnancy. Sir Robert was only abroad at the start of his wife's pregnancy.

King John then proceeds (Lines 120-9) to give a rationale for the basic rule:

                 "Tell me, how if my brother,
    Who, as you say, took pains to get this son,
    Had of your father claim'd this son for his?
    In sooth, good friend, your father might have kept
    This calf, bred from his cow, from all the world;
    In sooth he might; then, if he were my brother's,
    My brother might not claim him; nor your father,
    Being none of his, refuse him: this concludes;
    My mother's son did get your father's heir;
    Your father's heir must have your father's land",

Thus, a little ungallantly, he draws an analogy between the birth of a calf to a man's cow and the birth of a child to his wife. It was indeed the law that the owner of the cow owned the calf. And this was the very rationale for the presumption of legitimacy given by one Judge Richill in a case reported in the Year Books for 1406, who said: "Whoever bulls my cow, the calf is mine". This was echoed in a legal textbook, A Brief Treatise of Testaments and Last Wills (1590) by H. Swinburne. So King John pronounces Philip Sir Robert's lawful heir.

The King does not deal specifically with the three reasons advanced by Robert, but it follows by implication from his judgment that he rejected them as irrelevant in law. He was right to reject the second reason because Sir Robert only repudiated Philip on his death bed; and the third reason because, as we shall see below, an heir could not at that time be disinherited by Will. But he was wrong to reject the first reason if Bracton's view that it was sufficient to show absence of sexual intercourse with the husband at the time of conception applied during the earlier reign of King John. However, even Bacon would have been unlikely to know when the rule was tightened, since practicing lawyers are legal historians only to a very limited extent.

end of part 1.

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