Shakespeare a Lawyer? - 1 - Introduction 1

Was Shakespeare a Lawyer?

This begins a series of posts on the question of whether or not Shake-Speare was a lawyer. For most readers this will be an introduction to some of the legal phrases in Shake-Speare but I don't think that one needs any legal background to understand most of the arguments here as they pertain to the authorship question.

The debate about whether or not Shake-Speare was a lawyer or had any kind of legal training has been going on for over a hundred years. Baconians naturally favor the belief that Shake-Speare had legal training since Bacon was a lawyer and judge. Oxfordians also favor this belief since the Earl of Oxford had at least excellent legal tutoring and I think, like Bacon, had attended Gray's Inn. Some Stratfordians at one time at least had thought William Shakspere had some legal training but I understand that their stance now is that he picked up his legal knowledge off the street, so to speak, and that the law in the plays did not require formal legal training. Lawyers themselves have been divided on the question.

So this is Cockburn's analysis of the evidence and arguments. Cockburn himself had his career as a London barrister, so he is especially well qualified to give an educated opinion here.
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Part 1

The notion that William Shakspere once worked in an attorney's office has no evidence to support it and is not, I think, taken very seriously nowadays. If it were true, he might have been required to append his signature as a witness to Wills or deeds of clients, but despite exhaustive researches no such signature has been found. So if one can infer from Shake-Speare's legal knowledge that he did have legal training, it becomes highly unlikely that he was William Shakspere of Stratford.

Shake-Speare's legal allusions compared with those of other playwrights:

A number of Elizabethan dramatists used legal terms in their plays. Several  playwrights even had legal training, including Francis Beaumont, John Ford, George Gascoigne, Thomas Lodge, Thomas Middleton, John Marston, William Warner and Abraham Fraunce. London theater audiences included many lawyers. So Shake-Speare followed the fashion of including legalisms in his plays.

The best book on this subject is The Law of Property in Shakespeare and the Elizabethan Drama by two American lawyers, Paul S. Clarkson and Clyde T. Warren. They spent 11 years searching for law in about 200 Elizabethan plays by 17 playwrights, including Shake-Speare. Unfortunately, their book is restricted to the Law of Property (1942 and 1968). They had planned more books on the subject but never finished them.

Shakespeare a Lawyer? - 2 - Introduction 2

Was Shake-Speare a lawyer?

Part 2

As mentioned, the Clarkson and Warren book The Law of Property in Shakespeare and the Elizabethan Drama (1942 and 1962) has been one of the most influential books on this topic. Based on their study of Shake-Speare's law, they concluded:

"Our reading of the plays revealed that about half Shakespeare's fellows employed on average more legalisms than he [Shake-Speare] did - some of them a great deal more. For example, the 16 plays of Ben Jonson...have a total of over 500 references to all fields of law. This surpasses Shakespeare's total from more than twice as many plays. Not only do half of the playwrights employ legalisms more freely than Shakespeare but most of them also exceed him in the detail and complexity of their legal problems and allusions, and with a few exceptions display a degree of accuracy at least no lower than his. Proceeding from the general to the particular, about the same comparative average is maintained among the dramatists in their allusions to property law...It is accordingly our conclusion that that what law there is in Shakespeare can, indeed must, be explained upon some grounds other than that he was a lawyer, or an apprentice or a student of law...We do not say dogmatically that William Shakespeare was not a lawyer or that he had no legal education. As to that we are agnostic; as a matter of biographical fact we simply do not know. But on the basis of our comparative studies we do state categorically that the internal evidence from Shakespeare's plays is wholly insufficient to prove such a claim".

To this, Cockburn makes the following comments:

1. I am doubtful of the claim that about half of Shake-Speare's fellows employed on average more legalisms than he did. In their one book Clarkson and Warren tabulate in an Appendix all legal references to the law of property by Shake-Speare and the other 16 playwrights. And on my reckoning from that table only Ben Jonson, Philip Massinger, Thomas Middleton and John Webster employ on average as many or more legalisms as Shake-Speare. If, as Clarkson and Warren state, about the same comparative average is maintained in the dramatists' law as a whole, their calculation would seem incorrect. Of course the number of references is of limited importance - much depends also on their quality.

In their first edition (1942) the authors claim in the Preface to have cited and quoted from nearly 300 plays. In the 2nd edition (1962) this is amended to "well over 200 plays". In fact, the actual number, as appears from their own appendix, is 203. So perhaps counting  was not their forte.

Note: The Stratfordian Richard Grant White in his Memoirs of William Shakespeare in his 1866 edition of Shakespeare's Works, Vol. 1, p. xlv, wrote: "Of all the plays that have survived of those written between 1580 and 1620, Shakespeare's are the most noteworthy in this respect. For no dramatist of the times, not even Beaumont, who was the younger son of a Judge of the Common Pleas and who, after studying in the Inns of Court, abandoned law for the drama, used legal phrases with Shakespeare's readiness and exactness". This conflicts with the view of Clarkson and Warren.

end of Part 2

Shakespeare a Lawyer? - 3 - Introduction 3

Was Shake-Speare a lawyer?

Part 3

2) Though some other dramatists exceed Shake-Speare "in the detail and complexity of their legal problems and allusions", this is only because they introduce actual matters of litigation, whereas Shake-Speare usually confines himself to legal phrases, as often as not used metaphorically. Dekker, for example, in his If it be not Good the Devil is in it presents a suit in Chancery concerning the redemption of a mortgage. This type of situation will naturally attract more legal detail and complexity (In fact, as Clarkson and Warren point out at p. 157, Dekker takes great liberties with the law in the suit, either through ignorance or dramatic need). Clarkson and Warren rightly refrain from regarding the relative dearth in Shake-Speare of matters of litigation as evidence that he was not a lawyer. A lawyer playwright is under no obligation to write shop. It just happens by chance that the plots Shake-Speare chose - mostly from English or classical history or continental romances - seldom include litigation.

3) Coming now to the crux of Clarkson and Warren's verdict, I am at a loss to understand their pronouncement that "what law there is in Shakespeare can, indeed must, be explained on some grounds other than that he was a lawyer". "Must" is wholly unwarranted and is inconsistent with their own agnostic conclusion in their last three sentences. I agree with that conclusion to this extent only - that (subject to one qualification) most of Shake-Speare's legal references shed no light on whether he was a lawyer. They are bits of knowledge he could have picked up, just as other non-lawyers picked them up. A sprinkling of law terms was part of the vocabulary of educated men.

My qualification is as to whether William Shakspere could have acquired them so early in his career. Shake-Speare's early plays contain at least as many legalisms as his later ones. Yet when the first of them were written Shakspere of Stratford had probably been in London for about a couple of years. This is part of the wider problem confronting Stratfordians as to the early acquisition of Shake-Speare's learning. I do not think any help can be gleaned from the many lawsuits Shakspere's father was involved in. A young man has better things to do than studying his father's law suits. This did not deter J.M. Robertson from suggesting in his The Baconian Heresy, p. 147, that, since John Shakespeare was illiterate, he may have got young William to read the legal documents to him! If so, pity William, for legal documents were very hard for glovers' sons to follow. One should add that many Shake-Speare's early law terms would not have been used in those suits which were mainly small debt claims.

A Stratfordian suggestion that Shakspere could have learnt an appreciable amount of Shake-Speare's law by listening to cases in the Courts of Westminster is absurd. He had more important things to do than frequenting law courts. And the public galleries seem to have been small. For example, in the Star Chamber, whose hearings were open to the public in the final stages, onlookers would start to arrive at 3 a.m. to get a seat. Besides, laymen listen to law cases for their human interest, not for their legal technicalities, and learn little or no law by doing so. Nor could Shakspere have learnt much law from the cases he himself was involved in, which were mostly debt and land disputes and occurred in the latter part of his life. He would probably have acquired most of his law from conversation and from references in the works of other writers. Stratfordians have prayed in aid two preachers, Thomas Adams and Richard Sibbes, who seem from their sermons to have known a good deal of law. If they could pick up law so easily, why not Shakspere? The answer is that Adams was chaplain to Sir Henry Montague, Chief Justice, and Sibbes from 1617 was the preacher at Gray's Inn.

Shake-Speare's early legal learning apart, I agree with Clarkson and Warren as to the neutral effect of most of Shake-Speare's legal allusions. But in my view there are some which wear a different complexion and do suggest that he was a lawyer. These will be listed and discussed later as first another supposed problem must be disposed of - Shake-Speare's alleged bad law.

end of Part 3

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.

Shakespeare a Lawyer? - 5 - Alleged Bad Law 2

Was Shake-Speare a lawyer?

Part 5

Specific Instances of Alleged Bad Law

I now list the principle instances of Shake-Speare's alleged bad law. The first three items are trial scenes. His one other trial scene, Falconbridge v Falconbridge, in which his law is accurate, will be discussed later.

1. The Merchant of Venice - the trial of Antonio

In this play Shylock lends money to Antonio on a bond which stipulates that, if he does not repay the money by the due date, Shylock shall be entitled to a pound of his flesh. Antonio's friend Portia dresses up as a male Doctor of Laws at the trial. She saves Antonio by pointing out that the bond does not entitle Shylock to shed one drop of Antonio's blood. So Shylock can only carve his pound of flesh if he can do so bloodlessly - an impossibility. All this is unabashed fantasy (based largely on Shake-Speare's source), and it is absurd to expect the trial to conform to English, Venetian or any other system of law, either in trial procedure or in substantive law. The trial is a travesty of a real trial and was never intended to be anything else. So it is hardly worth canvassing its alleged errors of law but I will notice briefly what appear to be the three main criticisms or at any rate the most specific:

(a) In 1.3.140-1 Antonio is invited to sign a "single-bond", and not a bond upon a condition which (the critics suggest) the bond is. In fact (I quote Keeton (see previous post) p. 136) "The bond was single in the sense that it contemplated a specific action, the repayment of the loan, to which there was attached a penalty for non-compliance. This is not a conditional bond". The reason is that a penalty is not a condition. A conditional bond was a bond with a condition attached to it that if the person bound did some specific act, the bond should be void. An example is a common recognizance in which a person binds himself to pay a certain sum of money to H.M. the Queen, the condition of the recognizance being that, if he is of good behaviour for a certain time, the bond becomes void and no money has to be paid. It has been said too that a bond without a surety could also be described as a single bond. If so, Antonio's bond was a single in this sense as well. I would guess that this was the sense Shake-Speare had in mind.

(b) At the end of the trial Shylock agrees to execute a Deed of Gift conveying all he may possess on his death to his daughter and son-in-law. It has been objected that in English law a Deed of Gift could only convey existing property, not after-acquired property. The instrument should have been called a Will, as Bacon, Shake-Speare or anyone else would have known. But a Will could have been revoked by Shylock at any time, whereas a Deed of Gift was normally irrevocable. So Shake-Speare probably called it a Deed of Gift to create the impression that Shylock would be bound irrevocably.

(c) A sub-plot in the play is the story of the caskets, borrowed by Shake-Speare form his source. By his Will Portia's father directs that each of her suitors is to try for her hand and dowry by choosing among three metallic caskets, and if unlucky in that lottery must for ever renounce marriage. It has been argued in all seriousness that Shake-Speare cannot have been a lawyer because the relevant clause in the Will would have been a provision in restraint of marriage unenforceable in English Law!

Shakespeare a Lawyer? - 6 - Alleged Bad Law 3

Was Shake-Speare a lawyer?

Part 6

Shake-Speare's Alleged Bad Law continued

2. The Winter's Tale - the trial of Hermione

Leontes suspects his wife Hermione of adultery. So he puts her on "trial". The play's story is set in no time or place, except that it is ancient, and the "trial" makes no attempt to follow normal trial procedure. In truth it is little more than an inquisition of Hermione by Leontes who acts as both prosecutor and jury. As George Keeton observes in his Shakespeare's Legal and Political Background (1967), p. 156: "Shakespeare is consciously deviating from the ordinary course of a contemporary [i.e. Elizabethan] trial, in order to emphasize the cruelty of Leontes".

3. Henry VIII - the divorce of Queen Katherine

Katherine objects to Wolsey being her judge. The cavil has been taken that a party could not object to the judge. In fact, the suit was in the Ecclesiastical Court where challenge to the judge was possible.

4. 2 Henry VI - Heir Apparent

In 1.1.150-1 Humphrey is described as "heir apparent". An "heir apparent" is an heir who is bound to succeed if he outlives his ancestor. Humphrey's right to succeed was contingent on the chance that Henry would leave no lineal heir. So Clarkson and Warren, pp 198-9, suggest that Shake-Speare should have called him an "heir presumptive". Here they may be in error. For, though the distinction existed in fact, it is doubtful whether the term "heir presumptive" was in use in Shake-Speare's day. They cite no instance of it. And the first instance in the O.E.D. is for 1845. John Seldon in his Titles of Honour (1614), pp. 168, 170 and 174, treats "heir apparent" as meaning "the next heir or successor". This would cover heir presumptive as well. He makes no mention of the term "heir presumptive".

5.  All's Well That Ends Well - marriage of a ward

The King of France assumes the power to compel his ward Count Bertram to marry Helena, though she was but a poor physician's daughter. In English law a guardian was not entitled to force his ward to marry beneath his or her station in life. However, the King promises to ennoble Helena to equal rank with Bertram - which would solve the problem even by English law.

6.  Julius Caesar - Caesar's Will

In 3.2.249-52 Antony tells the mob of Caesar's Will:

"Moreover, he hath left you all his walks,
His private abours and new-planted orchards,
On this side Tiber; he hath left them you
And to your heirs for ever".

It has been objected that a gift of public parks etc would properly be made, not to the populace, but to the City of Rome as a municipal corporation or to the Mayor and Aldermen of the city (or their Roman equivalent). But Antony was not quoting the precise wording of the Will, merely stating its purport.

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

Shakespeare a Lawyer? - 8 - Alleged Bad Law 5

Was Shake-Speare a lawyer?

Part 8

Shake-Speare's Alleged Bad Law continued

11. Richard III - demise

In 4.4.247-8 a passage says:

"Tell me what state, what dignity, what honour
Canst thou demise to any child of mine"

It has been objected that the verb "demise", which means to convey by Will or lease, cannot apply to a state, dignity or honour. But, needless to say, Shake-Speare is using the word metaphorically.

12.  Pericles - indenture

In 1.3.7-8 Thaliard says: "for if a king bid a man to be a villain, he is bound by the indenture of his oath to be one". It has been objected that an oath cannot be an indenture, which means a sealed agreement. But "indenture" is used metaphorically.

13. Macbeth - execution

In 1.4.1 Duncan asks "Is execution done on Cawdor?" In its legal sense "execution" means the enforcement of a legal judgment. It has been objected that there had been no judgment against Cawdor. But "execution" is here used ironically for "assassination".

14. Hamlet - jointress

In 1.2.9 King Claudius describes Queen Gertrude as "the imperial jointress to this warlike state". In law a "jointure" was an estate which was settled on a wife and which passed to her on her husband's death. It has been objected that Queen Gertrude had no such jointure. But here Shake-Speare uses "jointress" metaphorically to mean joint ruler or joint owner ("State" may have been suggested by "estate").

15. The Comedy of Errors - on the case

In 4.2.42-5 Antipholus of Syracuse is said to have been arrested "on the case". Actions "on the case" were a class of action to which the old conventional writs of summons were inapplicable. Accordingly, a special writ, analogous to the old writ of trespass, was issued to meet the particular circumstances of each case. Antipholus was arrested for non-payment of the price of a gold chain. It has been objected, accurately, that an action of debt was not an action "on the case". But Shake-Speare probably called it an action "on the case" to enable him to pun on "case", one meaning of which was a suit of clothes. He puns again on "suit" in the three lines that follow.

Conclusion on Shake-Speare's alleged bad law

The attempt to thrust Shake-Speare's legal allusions down his own throat as evidence that he was not a lawyer fails completely. But similar attempts would probably fail against other Elizabethan dramatists, even if in fact they were not lawyers. Clarkson and Warren mention a few "mistakes" in the others' law of property, but I doubt if any of the "mistakes" are really of a kind to exclude their being lawyers. The reality is that dramatists need and were rightly allowed such license in their treatment of law and legalisms that it is often, perhaps usually, impossible to tell whether a departure from strict legal accuracy was due to ignorance or to dramatic convenience. So the failure of the Stratfordian counter-attack is not evidence that Shake-Speare was a lawyer. But on an affirmative level we now turn to those of his legalisms which should be regarded as such evidence.

  

Shakespeare a Lawyer? - 9 - Valid Points

Was Shake-Speare a lawyer?

Part 9

Valid Pointers to Shake-Speare being a Lawyer - Introduction

The Stratfordian Edgar I. Fripp, an advocate of the view that William Shakspere must have had legal training, wrote in his Minutes and Accounts of the Corporation of Stratford-upon Avon (1921), p.1viii:

"Contemporary dramatists use legal terms, some frequently, but their employment of them is quite unlike Shakespeare's. It is intermittent, decorative, self conscious; Shakespeare's is persistent and inherent and often involuntary. It is impossible, in fact, for Shakespeare to write anything of any length without betraying the attorney - even that lovely dirge The Phoenix and the Turtle has "From this session interdict"; and Prospero's farewell epilogue, "Release me from by bands [bonds]". His medicine, which is very interesting, is after the fashion of Ben Jonson's law - brought in and worked up for a purpose. His [Shake-Speare's] law slips from him unawares. And in this that he cannot help, we see a bit of Stratford".

If the legalisms of other Elizabethan dramatists are less persistent, less evenly spread, that would be a point for the Baconians. But, to judge from the  tables in Clarkson and Warren's appendix, I doubt if this particular point could be substantiated. But what of Fripp's claim that Shake-Speare's law "slips from him unawares"? I do not think this can be shown to be true of most of his legal allusions. They may have "slipped" from him or they may have been "brought in and worked up" - one cannot tell which. I see nothing in the way most are used which is more "involuntary" than their mode of use by other dramatists. To give a single example, in Romeo And Juliet 3.1.34-6 Benvolio tells Mercutio: "An [if] I were so apt to quarrel as thou art, any man should buy the fee simple of my life for an hour and a quarter". A fee simple was the highest estate in land known to the law and is here used metaphorically. Compare John Marston's The Insatiate Countess 3.4.148-9, where Count Massino declares: "And where the Devil has the fee simple,/ He'll keep possession". Neither use of "fee simple" can be said to be more or less involuntary than the other. However, with regard to a vital few of Shake-Speare's legal allusions, I think Fripp's comment is valid, and I include them in my list of significant Shake-Speare legalisms.

The few in question give the impression that Shake-Speare's law was in the forefront of his mind (as it would if he was a lawyer), so that the legalisms "slip" from him in contexts where a non-lawyer, even if he knew the legal rule or term, would be unlikely to think of using it. Sometimes it is no more than a little snatch of legal phraseology - perhaps only a word or two. Especially good examples are Nos. 2, 3, 11,12,19, 20 and 21 on my list. I do not suggest that the incongruity of a legalism in its context is necessarily sufficient proof of "slipping". For example, in his Edward the Fourth Part 2, John Heywood makes a man who is about to be executed speak figuratively in terms of tenants at will, rent in arrears and distraints. This labored and incongruous analogy (see Clarkson and Warren, p. 99) was "brought in and worked up". Whether a legalism has the appearance of having slipped from the author will depend on the circumstances. but unfortunately, from first to last in their book, Clarkson and Warren never address their minds to this crucial question of "slipping"; and in my view their omission is a fatal flaw in their otherwise invaluable work. The error is shared by the other exponents of the view that Shake-Speare was not, or cannot be shown to have been, a lawyer.

In addition to the "slipping" items, my list includes things Shake-Speare is unlikely even to have known. Nos 4,5,6,7 and 10 relate to the Bench or Bar. Stratfordians argue that Shake-Speare would not have used a law term unless his audience would understand it; and if they could understand it, it must have been common knowledge, so that Will Shakspere would have known it too. This argument is overstated. There is no reason why a playwright should not use some technical terms which parts of his audience will not understand. Very often they can guess the meaning from the context. And even if they cannot, that will not significantly impair their enjoyment of the plot as a whole. Moreover, Elizabethan London theatre audiences included many lawyers. And if Bacon was Shake-Speare, he would have derived most satisfaction from entertaining his own fraternity, even if some of his allusions were above the heads of non-lawyers.

There are 22 items to be discussed. The first 4 items are more extensive and for this reason I'm going to save them for last. So I'll start with the last (#22) and work toward the first. So far as the author knows, none of the 22 items have been found elsewhere in Elizabethan non-legal literature.

Shakespeare a Lawyer? - 10 - Absque hoc, Obsque hoc, Falstaff

Was Shake-Speare a lawyer?

Part 10

Valid Pointers to Shake-Speare being a Lawyer - Introduction

22.  Proper Costs and Charges

In 2 Henry VI, 1.1.60, an agreement provides that Lady Margaret be brought to England to marry Henry VI and that "she [be] sent over of [at] the King of England's own proper cost and charges". The Arden editor comments" "a legal expression used in state affairs, translating suis & eorum propriis sumptibus & expensis." In fact the expression is used (even today) in private contracts as well as in state documents. Shake-Speare should have said "costs" in the plural, but "cost" may be a misprint. I would not expect a layman to know this expression.

21.  Absque Hoc

In 2 Henry IV, 5.5.24 Falstaff and his cronies are waiting to see Henry V pass them as he comes in procession from his coronation:

Falstaff:   But to stand stained with travel, and sweating with desire to see him,
              thinking of nothing else, putting all affairs else in oblivion as if there
              were nothing else to be done but to see him.
Pistol:     'Tis semper idem, for obsque hoc nihil est; 'tis all in every part.

Semper idem means "ever the same". but obsque [presumably a misprint for abesque] hoc nihil est seems more opaque. However, John Lord Campbell in his Shakespeare's Legal Acquirements Considered (1859), p. 90 explained it: "Pistol is made to utter an expression used, when the record was in Latin, by special pleaders in introducing a special traverse or negation of a positive material allegation of the opposite side, and so framing an issue of fact for the determination of the jury; absque hoc 'without this that' - then repeating the allegation to be negatived". Cunningham (T.L.S 17 July 1930, p. 592) endorsed this explanation, concluding that "Pistol's meaning is that the legal phrase absque hoc is nothing to the point, and that no exception can be pleaded [Nihil est = 'There is nothing'] to Sir John's declaration of loyalty [to the King] - no defence or plea can be valid against this pleading".

I have no doubt that this explanation is correct - there is nothing to be said by way of [i.e. prefaced by the words]  absque hoc against Falstaff's loyalty to the King. O. Hood Phillips in his Shakespeare and the Lawyers (1972), p. 176, quotes F.F. Heard (an American author of legal textbooks) in his Shakespeare as a Lawyer (1883) as saying that no explanation of the term absque hoc can be found in Elizabethan literature, and continues: "In the absence of any explanation of this highly technical term of pleading in all reports and treatises extant in the time of Shakespeare. Heard says it seems to justify the conclusion that he must have obtained a knowledge of it from actual practice". It would certainly be remarkable if Will Shakspere of Stratford knew this term and thought of using it in the context (He might well have known semper idem which was the Queen's favourite motto, and also "all in every part" which was a proverb expressing absolute perfection - Falstaff's loyalty to the King was perfect).

Shakespeare a Lawyer? - 11 - Cadit Quaestio, Confess Avoid

Was Shake-Speare a lawyer?

Part 11

Valid Pointers to Shake-Speare being a Lawyer

20.  Confess and Avoid

In Hamlet 3.4.151-2 the Prince upbraids his mother:

                   "Confess yourself to heaven,
Repent what's past, avoid what is to come;"

To "confess and avoid" was a pleading term used by lawyers, meaning: "To admit an allegation but show it to be invalid in law". Lawyers still use the term today, but it would be difficult to find a layman who knows it. In Shake-Speare's day it seems that some laymen did know it. Holinshed (1586) mentions it once; and The Art of English Poesy (1589) says: "the figure is much used by our English pleaders in the Star Chamber and Chancery, which they call to confess and avoid". In the present Hamlet text it seems to have slipped from Shake-Speare's mind almost subliminally.

19.  Cadit Quastio

In Measure For Measure 2.4.88-90 Isabella is pleading with Angelo for her brother's life. Angelo is about to propose that if she will have sex with himself (Angelo), he will spare her brother:

Angelo:    Admit no other way to save his life -
           As I subscribe not that, nor any other,
           But in the loss of question - that you, his sister
           [Have sex with me]

The parenthesis in the middle has been much debated. Interpretations have included "For the sake of argument"; "Without disowning the right of calling him to answer for his crime"; "Provided there is no dispute"; and "Provided nothing more can be said for the defense”.  But all of these are wrong. In truth, the parenthesis seems influenced by the Latin law phrase (which lawyers still use today) cadit quaestio, which means "the question falls because it is no longer relevant". For example, a Court might say: "We may have to decide whether a juvenile aged only 16 - as this Defendant claims to be - can lawfully be sent to prison. Of course if the Crown can show that he is over 16, cadit quaestio". Now Angelo's parenthesis means: "I will admit no question about the proposal i am about to make for saving your brother's life, nor will I entertain any other proposal". This is not quite a cadit quaestio situation because no premise has lapsed to render the question irrelevant. But "the loss of question" suggests that Shake-Speare had "the fall of question" in mind. Angelo is saying in effect: "The question falls because I refuse to hear argument about it".

Shakespeare a Lawyer? - 12 - Session Interdict, Intervallum, Falstaff

Was Shake-Speare a lawyer?

Part 12

Valid Pointers to Shake-Speare being a Lawyer

18.  Session interdict

In Shake-Speare's The Phoenix And Turtle, which Fripp in the passage quoted earlier rightly calls "that lovely dirge", birds are gathered in a tree [i.e. in session] to mourn the Phoenix and the Turtle. Lines 1.9-10 say:

"From this session interdict [ban]
Every fowl of tyrant wing,"

What an unlikely context for "session interdict" which has a strong legal flavour (though both words are of course of general application as well)!

17.  Inns of Court jests

In 2 Henry IV, 5.1.75-8 Falstaff says:

"I will devise matter enough out of this Shallow to keep Prince Harry in continual
laughter the wearing out of six fashions which is four terms, or two actions,
and a shall laugh without intervallums".

The four terms are the four terms in the legal year. As an explanation of "two actions" Lord Campbell (following Samuel Johnson) suggested that perhaps in an action of debt judgment would be obtained in the second term after the writ was issued. An intervallum was the interval between terms and actions. The Arden editor comments: "As Wilson (N.C.S.) notes, these jests seem intended for Inns of Court students". Yes. And were probably written by a lawyer too.

Shakespeare a Lawyer? - 13 - Oath

Was Shake-Speare a lawyer?

Part 13

Valid Pointers to Shake-Speare being a Lawyer

16.  The oath of allegiance

In Macbeth 1.4.22-7 Macbeth says to Duncan:

                      "our duties
Are to your throne and state, children and servants;
Which do but what they should by doing everything
Safe toward your love and honour".

The great 18th century jurist William Blackstone commented on this passage: "safe (i.e. saved) toward your love and honour; and then the sense will be: 'Our duties are your children and servants or vassals to your throne or state; who do but what they should, by doing everything with a saving of their love and honour toward you'. The whole is an allusion to the form of doing homage in the feudal times. The oath of allegiance, or liege homage, to the king was absolute and without any exception; but simple homage, when done to a subject of lands holden of him, was always with a saving of the allegiance (the love and honour) due to the sovereign. 'Sauf le foy, que jeo doy a nostre seinor le roy' [save the faith I owe to our Sovereign Lord the King] as it in Littleton".

I think Blackstone shapes his interpretation too closely to the form of oath. A simpler interpretation is: "without hazard to your love and honour". But both interpretations mean much the same - the subject must put his duty to the sovereign first. The important point for our purposes is that Shake-Speare presumably had the French form of oath in mind. "Safe" [=sauf] otherwise seems odd in the context.

It seems unlikely that Will Shakspere would have known the French form, as it appeared in Littleton's Tenures, an old legal text book. Bacon knew at least the substance of the oath. For when the Earl of Essex offered him a parcel of land as compensation for failing to procure for him the office of Solicitor-general, Bacon replied: "My Lord, I see I must be your homager and hold land of your gift; but do you know the manner of doing homage in law? always it is with a saving of his faith to the king and his other lords; and therefore, my Lord, I can be no more your than I was, and it must be with the ancient savings."

Shakespeare a Lawyer? - 14 - Legal jargon

Was Shake-Speare a lawyer?

Part 14

Valid Pointers to Shake-Speare being a Lawyer

15. Resisting law

In Coriolanus 3.1.265-6, Sicinius urges that Coriolanus shall be thrown down the tarpeian rock because

             "he hath resisted law
And therefore law shall scorn him further trial..."

This is presumably based on the legal tag from the Roman jurist Justinian, 2 Institutes 53,  Merito beneficium legis amittit qui legem ipsam subvertere intendit - "he who intends to subvert the law itself deservedly loses the benefit of law". Yet the tag is not in Plutarch, Shake-Speare's source. Would Will Shakspere have known it, even in an English version?

14. A Sentence Irrevocable

In The Comedy of Errors 1.1.147 a character says that a "passed sentence may not be recalled [revoked]". There was a legal tag Sententia interlocutoria revocari potest definitiva non potest - "an interlocutory order may be revoked but not a final one". A criminal sentence was a final order (subject to appeal), and the wording of Shake-Speare's line suggests that he had the tag in mind. I doubt if Will Shakspere of Stratford would have known it.

Also, Lord Campbell, speaking of the jests in The Comedy of Errors, he remarks : 

"These jests cannot be supposed to arise from anything in the laws or customs of Syracuse, but they show the author to be very familiar with some of the most abtruse proceedings in English jurisprudence." --(From Shakespeare's Legal Acquirements, p. 38)

And, 

Franklin Fiske Heard, an American authority, says :

"The Comedy of Errors shows that Shakespeare was very familiar with some of the most refined principles of the science of special pleading, a science which contains the quintessence of the law".

Remember that The Comedy of Errors was one of Shake-Speare's first plays. How could Will Shakspere, recently from Stratford, had obtained this expertise so quickly, (if at all, considering he had no formal training in law)?  See the timeline here:

http://www.bardweb.net/plays/timeline.html

13. The Leek and Ambiguities

In Henry V, 5.1.45-7, Pistol asks if he really must bite the leek, to which Fluellen replies:

"Yes certainly, and out of doubt and out of question too and ambiguities".

These words were often found in a codicil to a Will by way of explaining the Will. For example, a codicil of Nicholas Tooley (one of Shakspere's fellow actors) had: "For the explanation of such ambiguities, doubts, scruples, questions and variances". Or the words might appear in the body of a Will. that of Charles Brandon begins: "I Charles Duke of Suffolk, being of whole and perfect memory, considering the great ambiguities, doubts and questions that do daily rise and grow in last Wills". but would a non-lawyer have thought of introducing Will jargon into Pistol's disconfiture over the leek?

Shakespeare a Lawyer? - 15 - Excepted

Was Shake-Speare a lawyer?

Part 15

Valid Pointers to Shake-Speare being a Lawyer

12.  Except before excepted  [In Latin exceptis excipiendis]

In Twelfth Night 1.3.7, Maria chides Sir Toby:

Maria:      By my troth Sir Toby, you must come in earlier o' nights; your cousin,
                 my lady, takes great exception to your ill hours.
Sir Toby:  Why, let her except before excepted.

He presumably meant something like: "Let her take exception to my habits before I take exception to hers". But his words echo a legal tag "except the before excepted", which was often used in leases and other documents to mean "apart from the exceptions already stated". It would seem astonishing of a non-lawyer had these words in mind at this point and put them into the mouth of drunken Sir Toby. Again, in The Two Gentlemen Of Verona 2.4.148-150, we find:

Valentine:   [says his own beloved is] Sovereign to all the creatures on the earth.
Proteus:     Except my mistress.
Valentine:   Sweet, except not any, Except thou wilt except against my love.

The last line means: "unless you will detract from my beloved" (alternatively, "from my love for her") - an artificial way of putting it which seems influenced by the tag. Bacon once echoed this Latin tag to some extent when he said of a particular person that he was entitled to sit as a judge "except he be excepted to".

11.  Party and Party

In Coriolanus 2.1.73-4, Menenius says to the tribune Brutus: "When you are hearing a matter between party and party". "Party and party" is legal parlance, and its main use today is in the expression "party and party" costs, meaning costs which do not fully compensate the client for the costs he has to pay his own solicitor. I think it improbable that a layman, either now or in Shake-Speare's day, would speak of an action between "party and party". He would say something like "an action between two people" or "between two parties". Bacon uses "party and party" in Spedding 12.364, 13.19, 13.203 & 13.165.

Shakespeare a Lawyer? - 16 - Wars of the Roses

Was Shake-Speare a lawyer?

Part 16

Valid Pointers to Shake-Speare being a Lawyer

10. Temple Gardens and the Wars of the Roses

In 1 Henry VI, 2.4, Shake-Speare sets a fictitious scene in the Temple Gardens, with quarrelling aristocratic students studying law, to represent the origin of the Wars of the Roses. A barrister would be more likely than a layman to set the scene thus. One of the students says:

   "Within the Temple Hall we were too loud;
    The garden here is more convenient".

To explain "too loud", Edward James Castle Q.C. in his Shakespeare, Bacon, Jonson and Greene (1897), p. 70, pointed out that Rule viii of the Rules of the Knight-Templars, the first occupants of the Temple, was: "In one common hall or refectory we will that you take your meat together, where, if your wants cannot be made known by signs, ye are softly and privately to ask for what you want". Castle says this convention of quietness in Hall still prevailed in his own day. One doubts whether an Elizabethan non-barrister would have known of it (and Shake-Speare editors seem to have missed it). In 2.4.133 the discussion in the garden ends with one aristocrat saying: "Come, let us four to dinner". This refers to the fact that barristers (like some other professions) dined in "messes" of four (I think three groups of four at each table). Bacon made a passing reference to this in a letter of 1603: "I have three new knights in my mess in Gray's Inn commons".

Note: Shake-Speare does not say whether by Temple Hall he meant the Inner Temple Hall or Middle Temple Hall. If Bacon was Shake-Speare, he probably meant the Inner Temple Hall and Garden because there was a close relationship between Gray's Inn and the Inner Temple. Castle says that by the "temple" members of Gray's Inn meant the Inner Temple. Gray's Inn had no ornamental garden, just two fields, till 1586 when Bacon started to establish a garden.

9. Keep your fellows' counsel

In Much Ado About Nothing 3.3.83-4, Dogberry in his charge to the watch says: "Keep your fellows' counsel and your own".  Lord Campbell in his Shakespeare's Legal Acquirements Considered, p. 46, pointed out that "Dogberry uses the very words of the oath administered by the Judge's Marshall to the Grand Jury at the present [Victorian] day" (and therefore presumably in Shake-Speare's day also). J.M. Robertson retorted that "the words must have been known to myriads of laymen". I doubt this. For example, I think it would be hard to find a layman today who knows the working of the oath taken by a juror. Jurors even have difficulty sometimes in repeating the wording correctly, though they are reading it from a card.

Shakespeare a Lawyer? - 17 - Brook abridgement

Was Shake-Speare a lawyer?

Part 17

Valid Pointers to Shake-Speare being a Lawyer

8.  Lovers like opposing barristers

In The Taming Of The Shrew 1.1.276-7, one of two rival lovers for the affections of the same lady suggests that they should

     "Do as adversaries do in law,
      Strive mightily, but eat and drink as friends".

"Adversaries" here refers to opposing Counsel; a layman would probably use it of the parties themselves. Secondly, how many laymen would liken rival lovers to contesting barristers eating and drinking as friends? But the analogy would come naturally to a barrister since the camaraderie of the Bar is one of its most distinctive features. A lay client on the other hand might be a little surprised (and offended) to see his barrister lunching during the case with his forensic opponent. In rebuttal J.M. Robertson in his The Baconian Heresy (1913), p. 62, quotes from Westward Ho 1.1. by Dekker and Webster: "She sleeps as a client having great business with lawyers". But this is not comparable since it does not echo the ethics of the Bar.

7.  Brook abridgement

In Henry V Act 5, Prologue Line 44, the audience is enjoined. "Then brook abridgement and your eyes advance". There was a well known legal textbook called "Brooke's Abridgement, first published in 1573 and reprinted in 1576 and 1586. Bacon in his legal writings mentions it 4 times. Was the wording of Shake-Speare's "Brook abridgement" suggested by the book's title? That wording was probably a joke phrase in the Inns of Court, based on the title. Like "An advocate is a pheasant" considered in the next item (#6 in this list). "Brook abridgement" may have no legal connotation (especially as "brook" was a word Shake-Speare liked). But both together increase one's suspicions. Can two such legal coincidences (this item and also that in #6) be found in the works of any other Elizabethan playwright?

Shakespeare a Lawyer? - 18 - Advocate Pheasant

Was Shake-Speare a lawyer?

Part 18

Valid Pointers to Shake-Speare being a Lawyer

6.  An advocate is a pheasant

In The Winter's Tale 4.4.743 this occurs:

Shepherd:   My business, Sir, is to the King.
Autolycus:  What advocate hast thou to him?
Shepherd:   I know not, and it like you.
Clown:       Advocate's the court-word for pheasant.

This is a reference to the fact that bribery of local justices (the only courts the clown would know) by gifts of poultry was common enough for the term "capon justices" to be current in 1639. The Variorum editor notes: "In the time of Elizabeth there were Justices of the Peace, called Basket Justices, who would do nothing without a present; yet, as a member of the House of Commons expressed himself, 'for half a dozen of chickens would dispense with a whole dozen of penal statutes'". This and the term "capon justices" suggests that the normal gift was chickens. So why does Shake-Speare substitute a pheasant? 

Was a pheasant in those days regarded as a greater luxury than a chicken which offers more meat? The Baconians have floated a different explanation. They have identified a family of barristers named Phesant (the name was also spelt Fesant, Ffeasant, and Pheasant; see Baconiana, Vol. 17, pp. 173-4). A Jasper Ffesant sat as a judge in 1550. A Peter Phesant, who may have been Jasper's son, was elected a Reader of Gray's Inn in 1581 and sat as a Bencher from 1582. - see the Gray's Inn Pension Book (1901) edited by R.J. Fletcher. Peter later became Attorney-General in the North. Bacon himself, as we have seen became a Bencher in 1586. So from then on he would have been closely associated with Peter till the latter's death before 8 February 1588. Peter's son of the same name was admitted to the Inn as a student in 1602, and called to the Bar in 1608. Bacon was present when his call was confirmed. Is it fanciful to suppose that Bacon substituted a pheasant for a chicken to amuse lawyers in the audience with a humourous dig at a Gray's Inn family of advocates?

-----------------------------------------------------------------------------------------------------------------------

5.  My brother Angelo

In Measure For Measure  3.2.201 Escalus refer to his fellow judge Angelo as "my brother Angelo". British judges still refer to their colleagues in this fashion. A judge may say, for example, "my brother Smith" or "my brother Mr. Justice Smith". But one doubts if many laymen know this, or knew it in Shake-Speare's day.

Shakespeare a Lawyer? - 19a - Hamlet Hales v Petit

Was Shake-Speare a lawyer?

Part 19 (1 of 2)

Valid Pointers to Shake-Speare being a Lawyer

4.  Hales v Petit and the Burial of Ophelia

This is one of the long posts on this topic. But it deals with one of the most interesting scenes in one of the most popular plays, that of Hamlet. So this may be enough to keep your interest through it.

In Hamlet 5.1.1-20 two gravediggers burying Ophelia who has drowned, perhaps by her own act, engage in a discussion about the law of suicide:

1st Gravedigger:  Is she to be buried in Christian burial, when she wilfully seeks
                          her own salvation?
2nd Gravedigger:  I tell thee she is, therefore make her grave straight. The
                          crowner hath sat on her and finds it Christian burial.
1st Gravedigger:  How can that be, unless she drowned herself in her own
                          defence?
2nd Gravedigger:  Why, 'tis found so.
1st Gravedigger:   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
                          [therefore] she drowned herself wittingly.
2nd Gravedigger:  Nay, but hear you, Goodman Delver -
1st Gravedigger:  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, he drowns not himself. Argal, he that is not guilty of
                          his own death shortens not his own life.

This echoes an actual law case, Hales v Petit, reported in 1 Plowden's Law Reports. As the Arden Hamlet editor comments: "Shakespeare's knowledge of the arguments about suicide in the case of Hales v Petit, however come by, seems beyond question". That case had been decided in the early 1550's some 50 years before Hamlet was written. Sir James Hales, a judge of the Common pleas, had committed suicide by drowning himself in a river. Since suicide was a felony, he was denied Christian burial and his property was forfeited to the Crown. One item of property was a lease which he and his wife had owned jointly. The Crown, having forfeited it, granted it to one Petit. Hales v Petit was an action by Hales's widow claiming that the lease should not have been forfeited, and had become her sole property by right of survivorship.

It was accepted at the hearing that, for the forfeiture of the lease to be valid, it was necessary for the Crown (and Petit) to prove that the event giving rise to the forfeiture occurred in Hales's lifetime. Otherwise, his joint interest in the lease passed to his widow at the moment of his death and could not subsequently be divested. So which occurred first - his suicide or the passing of his interest to his widow? The correct answer, surely, is that both occurred simultaneously. But that would have left the legal poser incapable of solution. So it was argued for Petit that Hales's felony of suicide occurred before his death, namely when he threw himself into the river, moments before his death. The argument for the widow was that the offence of suicide was not complete till the moment of his death. In the course of his submissions Serjeant Walsh for Petit argued:

"The act consists of three parts. The first is the imagination, which is a reflection or meditation of the mind, whether or not it is convenient for him to destroy himself, and what way it can be done; the second is the resolution, which is a determination of the mind to destroy itself; the third is the perfection, which is the execution of what the mind has resolved to do. And of all the parts, the doing of the act is the greatest in the judgment of our law, and it is in effect the whole. Then here the act done by Sir James Hales, which is evil, and the cause of his death, is the throwing himself into the water, and the death is but a sequel thereof".

continued on the next post...