Sunday, June 5, 2011

Shakespeare a Lawyer? - 7 - Alleged Bad Law 4

Was Shake-Speare a lawyer?

Part 7

Shake-Speare's Alleged Bad Law continued

7. Measure For Measure - Claudio's premarital fling

In Act 1 Claudio is condemned to death for getting Juliet pregnant. It is objected that in English law a premarital contract per verba de praesenti [by mutual oath before witnesses], such as Claudio and Juliet had entered into, prevented cohabitation before marriage being a crime. However in Shake-Speare's play there is an old statute (taken from his source) which makes premarital cohabitation a capital offence.

8.  Cymbeline - Iachimo's wager

Shake-Speare (following his source) makes Posthumus in Rome bet Iachimo that the latter will not succeed in seducing Posthumus's wife Imogen. It has been objected that "the wager upon which Iachimo came to England was grossly immoral and could never have supported an action at law; yet in the play lawful Counsel were to be called in [in Rome] to draw covenants which should be valid in law". (Per Charles Allen in his Notes on the Bacon-Shakespere Question (1900)). Immoral and unenforceable, but entertaining to the theatre audience!

9. As You Like It - an extent upon Oliver's lands

In 3.1.16-7 the Duke of Milan orders:

"And let my officers of such a nature
Make an extent upon his house and lands".

"Make an extent" was a legal phrase from the working of the  English writ extendi facias which directed the Sheriff to levy execution against the property of a debtor. It has been objected that in the play there had been no judgment or forfeiture which was a necessary pre-condition of such a writ. True. But the Duke was a dictator who could seize lands by any process he liked. Shake-Speare's application of an English law term to a Milanese situation did not oblige him to follow every incident of the English writ. As Furness observed, "the use of a legal term or so would be all-sufficient to create the required impression".

10. 3 Henry VI - the crown entailed to Warwick

In 1.1.174-81 and 200-6 Henry agrees with Warwick that, if Henry is allowed to reign for the rest of his life, he will confirm the crown to Warwick and his heirs thereafter. So Henry says to Warwick:

        "I here entail
The crown to thee and to thine heirs for ever";

Clarkson and Warren point out that the technical working needed in law to create an entail was not "to you and your heirs for ever", but "to you and the heirs of your body". However, "to you and your heirs for ever" would convey more clearly to the audience that Henry was renouncing the throne for ever. In fact, Henry and Warwick did not intend that the crown should be entailed in the strict legal sense. It is an incident of an entail that, if the grantee's heirs die out, the thing entailed will revert to the grantor. Henry and Warwick cannot have intended this. What they really intended was that Warwick should be granted a fee simple in the crown, subject to Henry's life interest. "To you and your heirs" ("for ever" is surplusage) was the correct technical wording to create a fee simple. But "entail" was inconsistent with a fee simple. The reality is that Shake-Speare was not attempting to act as a conveyancing draftsman, but chose the wording which he thought would best convey his meaning to the audience.

end of part 7

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