Sunday, June 5, 2011

Shakespeare a Lawyer? - 22b - Falconbridge

Was Shake-Speare a lawyer?

Part 22  (2 of 2)

Valid Pointers to Shake-Speare being a Lawyer

1. Falconbridge v Falconbridge, and the law of bastardy


Now, Shake-Speare's play, written perhaps between 1593-1596, was based on a similar play by an anonymous author called The Troublesome Reign of John King of England, Part 1, Lines 66-287, which had been published in 1591. [Note: This has long been accepted by scholars, but the Arden editor at the time this analysis was written suggested that Shake-Speare's play may have come first. However, his reasoning is unconvincing. The relevant parts of the anonymous play can be found in Shakespeare's Narrative and Dramatic Sources (1957) by Geoffrey Bullough, Vol. 4].

For the most part Shake-Speare follows the earlier play scene by scene and incident by incident, and even the logical run of much of the dialogue. But when he comes to the trial scene he makes fundamental changes in its treatment of the law of bastardy. In the Troublesome Reign version, Robert advances only the first of the three reasons given by him in Shake-Speare's version (with the slight difference that 6 weeks is stated instead of 14 weeks). He adds another reason - that in physical appearance Philip was the splitting image of Richard I. This was not advanced by Robert in the  Shake-Speare version, though King John and his mother Queen Eleanor had noticed the resemblance and been impressed by it.

In The Troublesome Reign version these two reasons, instead of being treated as irrelevant in law because insufficient to rebut the presumption of legitimacy, are rejected on the facts. Queen Eleanor (without demurrer by King John) says that Philip's physical resemblance to Richard I could be coincidental; and that a baby may be 6 weeks premature (Shake-Speare changes 6 weeks to 14 weeks to make clear that Sir Robert could not be the father). King John in The Troublesome Reign version asks Lady Falconbridge and Philip point blank whether Sir Robert was Philip's true father. Lady Falconbridge asserts that he was. But the question should not have been put since she might have given the opposite answer and in law a spouse was not entitled to give evidence to bastardise his or her putative child. Whether for this reason or some other Shake-Speare omits her from the scene. Philip at first says he thinks he is Sir Robert's son. But then he confesses to an inner conviction that he is the son of Richard I. Needless to say, this is not evidence of the fact. Yet on the strength of that conviction King John pronounces Robert the lawful heir - the opposite conclusion to Shake-Speare's.

The last two reasons given by Robert in Shake-Speare's version, but not in The Troublesome Reign, are introduced by Shake-Speare like a lawyer thinking up further arguments. The second reason I have dealt with. As to the third (a death bed Will), the law did not recognise the right to alter the line of succession by Will until the Statute of Wills (1540), which for the first time allowed direct devises of land.

It is clear that the author of The Troublesome Reign knew little or nothing about the law of bastardy; his treatment of it is a shambles. But Shake-Speare corrects him, subject to a possible error in thinking that non-access by the husband at the time of conception alone was insufficient to rebut the presumption of legitimacy in the reign of King John. Shake-Speare knew at least three things - (1) the basic rule, (2) the rationale the law gave for it, and (3) the inefficacy of a Will to disinherit an heir in King John's time. So he reverses The Troublesome Reign's judgment and pronounces in favour of Philip, not Robert. This volte-face is not made for dramatic reasons. Indeed Shake-Speare achieves the same end result as The Troublesome Reign by making Philip surrender the lands to Robert voluntarily. One wonders whether many Elizabethan non-lawyers knew any more about the law of bastardy than did the author of The Troublesome Reign.

The rule about the ownership of a calf was well known, but probably not its application to the law of bastardy - otherwise the author of The Troublesome Reign would surely have known of it. And no one has cited any other reference to it in connection with bastardy in Elizabethan lay literature. The inefficacy of the three reasons given by Robert in the Shake-Speare version was probably not well known either, since a layman would tend to think them highly relevant. As to the third, a layman would be likely to assume a power to disinherit by Will since it existed in Elizabethan times. Clarkson and Warren, p. 215, write: "This power in the ancestor was commonly recognised or assumed by Elizabethan dramatists"; and they give examples. Of course Bacon knew of the change made by the Statute of Wills of 1540 (see Spedding 7.496).

If a non-lawyer had written King John, would he not have been only too willing to follow The Troublesome Reign in its treatment of the law of bastardy, as he followed it on most other things? But Shake-Speare corrects its law, and so goes to the length of reversing John's judgment as given in it.

Now, again, Will Shakspere had no known legal training, no known ability (or interest) to read abstruse law books written in Old French (mentioned in an earlier post but not needed in this case), and no known friends with formal legal training. On the other hand,  Francis Bacon has this reputation for legal understanding:

"As a legal thinker, according to Holdsworth, Bacon was 'not only among the great of his age, but among the greatest of all time'. William S. Holdsworth, History of English Law (1909). He considered Bacon 'a more complete lawyer than any of his contemporaries', and he remarked of Bacon's lectures at Gray's Inn that they had earned him a place 'besides those few great teachers who have appeared at infrequent intervals in the history of English law'. 


"That view was echoed in 1992 by another legal expert, Daniel Coquillette, who saw him as a profoundly innovative legal mind, consciously transcending national boundaries, and 'the first truly analytical and critical jurist in the Anglo-American tradition'. Francis Bacon, Daniel Coquillette".
Francis Bacon, The History of a Character Assassination, p. 246, by Nieves Mathews


"Politicians used to prefer him to be the wily Bacon....Men of law point to his remarkable knowledge of the law."---John Bayley
The New York Review of Books August 10, 2000

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