Shakespeare a Lawyer? - 4 - Alleged Bad Law 1

Was Shake-Speare a lawyer?

Part 4

Shake-Speare's Alleged Bad Law

Some Stratfordians have attempted to turn the tables on the Baconians by treating Shake-Speare's legalisms as evidence that he was not a lawyer. One point they make is that Bacon rarely uses legal terms in his prose works (except in his legal treatises) and therefore, they argue, he would not have used them in plays either, though Shake-Speare does. They suppose that Bacon hated the Law and would only mention it when he had to.  This is an exaggeration. He regarded the Law as one very necessary branch of knowledge, though not the most delectable. The true reason for the absence of legalisms from his prose works is probably that it was not the fashion to use them in prose. When I have had occasion  to read Elizabethan prose, I have not noticed any tendency towards legal metaphors.

The main counter-attack by Stratfordians has been based on the argument that he [Shake-Speare] is sometimes guilty of bad law and therefore cannot have been a lawyer. Clarkson and Warren do not accept this. Otherwise they could not have been agnostic in their conclusion. In the law of property they seem to take only two alleged mistakes by Shake-Speare at all seriously, and they will be discussed shortly. Critics of Shake-Speare's law have sometimes simply got their law wrong. Sometimes again they criticize his use of a legal term when in truth he is using the word in its general non-legal sense, or metaphorically. As to the latter, Clarkson and Warren sensibly observe at p. 17 that "technical precision is too much to be expected of all metaphors". And at p. 56: "In using any word metaphorically dramatists are entitled to the greatest latitude as long as the analogy is reasonable". 

Always the critics seem to assume that foreign States are governed by English law. Shake-Speare does sometimes apply English law or law terms to foreign episodes, but one can hardly complain if he does not always do so. What the foreign law was in each case I have no idea. Perhaps the most foolish of the errors made by the critics is to expect legal accuracy in episodes, such as the trial in The Merchant of Venice, which are pure fantasy. It will not take the reader long, from the alleged mistakes cited below, to realize how utterly inept most of the criticisms are.

Some Stratfordians have made a point which is expressed by George W. Keeton in his Shakespeare's Legal and Political Background (1967), p. 41, as follows: "His [Shake-Speare's] touch is less sure when he is depicting a trial scene. The terms he knows are the terms in constant use in a lawyer's office. If Bacon had really had a hand in the plays, we should expect the emphasis to be reversed". In fact, I would expect a barrister in Bacon's position to have a roughly equal knowledge of substantive law and trial procedure. Nor are the terms Shake-Speare uses all such as would be in constant use in a lawyer's office; they include, for example, constitutional legalisms. More importantly, however, the allegation that his touch is less sure in trial scene is misleading. For when in a trial scene he departs from legal accuracy, he does so because he is writing fantasy (usually borrowed from his source) and so not aiming at accuracy. But he is accurate in the Falconbridge v Falconbridge trial scene (discussed later) in King John which is not intended as fantasy.

An alternative argument advanced by Stratfordians is that Bacon, as a trained lawyer, could not have brought himself to pen a fantasy trial scene which was a travesty of any real model - it would have gone too much against the grain. But Bacon's horizons were far wider than the Law. Even if he had been a dry-as-dust lawyer like Sir Edward Coke, I see no reason why he should not have indulged in fantasy, if he wished to, especially when he was following his source or setting a trial in a foreign or imaginary land. In our time a distinguished Q.C., John Mortimer, has scripted a successful television series about the Law, called Rumpole of the Bailey. Though it is marvelously true to the spirit of the Bar, and could scarcely have been written by anyone but a barrister, one nevertheless noticed from time to time that the author allowed himself, for dramatic reasons, what he must have known were legal inaccuracies. The notion that a lawyer dramatist cannot bring himself to offend against the law in this was in misconceived.