The Atlantic Monthly, Volume 04, No. 21, July, 1859

Very profound legal studies, therefore, cannot be predicated of Shakespeare on the ground of the knowledge which he has shown of this peculiar kind of statute.

It is not surprising that both our legal Shakespearean commentators cite the following passage from "As You Like It" in support of their theory; for in it the word "extent" is used in a sense so purely technical, that not one in a thousand of Shakespeare's lay readers now-a-days would understand it without a note:—

Duke F. Well, push him out of doors, And let my officers of such a nature Make an extent upon his house and lands." Act iii. Sc. 1.

"Extent," as Mr. Rushton remarks, is directed to the sheriff to seize and value lands and goods to the utmost extent; "an extendi facias" as Lord Campbell authoritatively says, "applying to the house and lands as a fieri facias would apply to goods and chattels, or a capias ad satisfaciendum to the person." But that John Fletcher knew, as well as my Lord Chief Justice, or Mr. Barrister Rushton, or even, perhaps, William Shakespeare, all the woes that followed an extent, the elder Mr. Weller at least would not have doubted, had he in the course of his literary leisure fallen upon the following passage in "Wit Without Money" (1630):—

"Val Mark me, widowsAre long extents in law upon men's livings,Upon their bodies' winding-sheets; they that enjoy 'emLie but with dead men's monuments, and begetOnly their own ill epitaphs."Act ii. Sc. 2.

George Wilkins, too, the obscure author of "The Miseries of Enforced Marriage," uses the term with as full an understanding, though not with so feeling an expression or so scandalous an illustration of it, in the following passage from the fifth act of that play, which was produced about 1605 or 1606:—

"They are usurers; they come yawning for money; and the sheriff with them is come to serve an extent upon your land, and then seize your body by force of execution."

Another seemingly recondite law-phrase used by Shakespeare, which Lord Campbell passes entirely by, though Mr. Rushton quotes three instances of it, is "taken with the manner." This has nothing to do with good manners or ill manners; but, in the words of the old law-book before cited,—

–"is when a theefe hath stollen and is followed with hue and crie and taken, having that found about him which he stole;—that is called ye maynour. And so we commonly use to saye, when wee finde one doing of an unlawful act, that we tooke him with the maynour or manner."

Termes de la Ley, 1595, fol. 126, b.

Shakespeare, therefore, uses the phrase with perfect understanding, when he makes Prince Hal say to Bardolph,—

"O villain, thou stolest a cup of sack eighteen years ago, and wert taken with the manner, and ever since thou hast blush'd extempore." 1 Henry IV.Act ii, Sc. 4.

But so Fletcher uses the same phrase, and as correctly, when he makes

Perez say to Estefania, in "Rule a Wife and Have a Wife,"—

"How like a sheep-biting rogue, taken i' the manner,And ready for the halter, dost thou looknow!"—Act v. Sc. 4.

But both Fletcher and Shakespeare, in their use of this phrase, unusual as it now seems to us, have only exemplified the custom referred to by our contemporary legal authority,—"And so we commonly use to saye, when wee finde one doing of an unlawfull act, that we tooke him with the maynour"; though this must doubtless be understood to refer to persons of a certain degree of education and knowledge of the world.

It seems, then, that the application of legal phraseology to the ordinary affairs of life was more common two hundred and fifty years ago than now; though even now-a-days it is much more generally used in the rural districts than persons who have not lived in them would suppose. There law shares with agriculture the function of providing those phrases of common conversation which, used figuratively at first, and often with poetic feeling, soon pass into mere thought-saving formulas of speech, and which in large cities are chiefly drawn from trade and politics. And if in the use of the law-terms upon which we have remarked, which are the more especially technical and remote from the language of unprofessional life among all those which occur in Shakespeare's works, he was not singular, but, as we have seen, availed himself only of a knowledge which other contemporary poets and playwrights possessed, how much more easily might we show that those commoner legal words and phrases, to remarks upon Shakespeare's use of which both the books before us (and especially Lord Campbell's) are mainly devoted, "judgment," "fine," "these presents," "testament," "attorney," "arbitrator," "fees," "bond," "lease," "pleading," "arrest," "session," "mortgage," "vouchers," "indentures," "assault," "battery," "dower," "covenant," "distrain," "bail," "non-suit," etc., etc., etc.,—words which everybody understands,—are scattered through all the literature of Shakespeare's time, and, indeed, of all time since there were courts and suits at law!

Many of the passages which Lord Campbell cites as evidence of Shakespeare's "legal acquirements" excite only a smile at the self-delusion of the critic who could regard them for a moment in that light. For instance, these lines in that most exquisite song in "Measure for Measure;"—"Take, oh, take those lips away,"—

"But my kisses bring again Seals of love, but seal'd in vain";—

and these from "Venus and Adonis,"—

"Pure lips, sweet seals in my soft lips imprinted,What bargains may I make, still to be sealing!"—

to which Mr. Rushton adds from "Hamlet,"—

"A combination and a form, indeed,Where every god did seem to set his seal."

Act iii. Sc. 4.

"Now must your conscience my acquittance seal."—Act iv. Sc. 7.

And because indentures and deeds and covenants are sealed, these passages must be accepted as part of the evidence that Shakespeare narrowly escaped being made Lord High Chancellor of England! It requires all the learning and the logic of a Lord Chief Justice and a London barrister to establish a connection between such premises and such a conclusion. And if Shakespeare's lines smell of law, how strong is the odor of parchment and red tape in these, from Drayton's Fourth Eclogue (1605):

"Kindnesse againe with kindnesse was repay'd, And with sweet kisses covenants were sealed."

We ask pardon of the reader for the production of contemporary evidence, that, in Shakespeare's day, a knowledge of the significance and binding nature of a seal was not confined to him among poets; for surely a man must be both a lawyer and a Shakespearean commentator to forget that the use of seals is as old as the art of writing, and, perhaps, older, and that the practice has furnished a figure of speech to poets from the time when it was written, that out of the whirlwind Job heard, "It is turned as clay to the seal," and probably from a period yet more remote.

And is Lord Campbell really in earnest in the following grave and precisely expressed opinion?

"In the next scene, [of "Othello,"] Shakespeare gives us a very distinct proof that he was acquainted with Admiralty law, as well as with the procedure of Westminster Hall. Describing the feat of the Moor in carrying off Desdemona against her father's consent, which might either make or mar his fortune, according as the act might be sanctioned or nullified, Iago observes,—

"'Faith, he to-night hath hoarded a land carack:If it prove a lawful prize, he's made forever';

the trope indicating that there would be a suit in the High Court of Admiralty to determine the validity of the capture"!—p. 91.

"Why did not his Lordship go farther, and decide, that, in the figurative use of the term, "land carack," Shakespeare gave us very distinct proof that he was acquainted with maritime life, and especially with the carrying-trade between Spain and the West Indies? We respectfully submit to the court the following passage from Middleton and Rowley's "Changeling,"—first published in 1653, but written many years before. Jasperino, seeing a lady, calls out,—

"Yonder's another vessel: Ile board her: if she be lawfall prize, down goes her topsail." Act i. Sig. B. 2.

And with it we submit the following points, and ask a decision in our favor. First, That they, the said Middleton and Rowley, have furnished, in the use of the phrase "lawful prize," in this passage, very distinct proof that they were acquainted with Admiralty law. Second, That, in the use of the other phrases, "board," and especially "down goes her topsail," they have furnished yet stronger evidence that they had been sailors on board armed vessels, and that the trope indicates, that, had not the vessel or lady in question lowered her topsail or top-knot, she would then and there have been put mercilessly to the sword.

But what shall we think of the acumen and the judgment of a Chief Justice, a man of letters, and a man of the world, who brings forward such passages as the following as part of the evidence bearing upon the question of Shakespeare's legal acquirements?—

"Come; fear not you; good counsellors lack no clients." Measure for Measure. Act i. Sc. 2.

"One that before the judgement carries poorsouls to hell." Comedy of Errors. Act iv. Sc. 2.

"Well, Time is the old Justice that examines all such offenders,—and let Time try." As You Like It. Act iv. Sc. 1.

"And that old common arbitrator, Time."Troilus and Cressida. Act iv. Sc. 5."No cock of mine; you crow too like a craven."Taming of the Shrew. Act ii. Sc. 1."Bestial oblivion or some craven scruple."Hamlet. Act iv. Sc. 4.

By which last line, according to Lord Campbell, (p. 55,) "Shakespeare shows that he was acquainted with the law for regulating 'trials by battle'"!

But to proceed with the passages quoted in evidence:—

"Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? that parchment, being scribbled o'er, should undo a man? Some say, the bee stings: but I say, 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man since."—2 Henry VI. Act vi. Sc. 2.

Upon citing which, his Lordship exclaims,—

"Surely Shakespeare must have been employed to write deeds on parchment in courthand, and to apply the wax to them in the form of seals. One does not understand how he should, on any other theory of his bringing-up, have been acquainted with these details"!

One does not; but we submit to the court, that, if two were to lay their heads together after the manner of Sydney Smith's vestrymen, they might bring it about.

In aid of his Lordship's further studies, we make the following suggestion. He doubtless knows that one of the earliest among our small stock of traditions about Shakespeare is that recorded by Aubrey as being derived from Stratford authority, that his father was a butcher, and that "when he was a boy he exercised his father's trade, but when he kill'd a calfe, he wold do it in a high style, and make a speech." When his Lordship considers this old tradition in connection with the following passage in one of Shakespeare's earliest plays,—

"Who finds the heifer dead and bleeding fresh,And sees fast by a butcher with an axe,But will suspect 'twas he that made theslaughter,"—2 Henry VI. Act iii. Sc. 2.

how can he resist the conclusion, that, although the divine Williams may not have run with "Forty," it is highly probable that he did kill for Keyser? Let his Lordship also remember that other old tradition, mentioned by Rowe, that John Shakespeare was "a considerable dealer in wool," and that William, upon leaving school, "seems to have given entirely into that way of living which his father proposed to him"; and remember, also, this passage from another of Shakespeare's earliest plays:—

"He is too picked, too spruce, too affected,too odd, as it were, too peregrinate, as I maycall it…He draweth out the thread ofhis verbosity finer than the staple of his argument."—Love's Labor's Lost. Act v. Sc. 1.

Is there not a goodly part of the wool-stapler's craft, as well as of the art of rhetoric, compressed into that one sentence by the hydraulic power of Shakespeare's genius? Does it not show that he was initiated in the mysteries of long and short staple before he wrote this, perhaps, his earliest play? But look again at the following passage, also written when his memory of his boyish days was freshest, and see the evidence that both these traditions were well founded:—

"So, first, the harmless sheep doth yield his fleece;And, next, his throat unto the butcher's knife."

Could these lines have been written by a man who had not been both a considerable dealer in wool, and a butcher who killed a calf in high style and made a speech? Who can have a doubt about this matter, when he appreciates rightly the following passage in "Hamlet," (Act v. Sc. 2,) and is penetrated with the wisdom of two wise commentators upon it?—

'Our indiscretion sometimes serves us well,When our deep plots do pall; and that should teach usThere's a divinity that shapes our ends,Rough-hew them how we will.'

Dr. Farmer informs me that these words are merely technical. A wool-man, butcher, and dealer in skewers lately observed to him that his nephew (an idle lad) could only assist him in making them;—he could rough hew them, but I was obliged to shape their ends! To shape the ends of wool-skewers, i.e., to point them, requires a degree of skill; any one can rough-hew them. Whoever recollects the profession of Shakespeare's father will admit that his son might be no stranger to such terms. "I have frequently seen packages of wool pinn'd up with skewers."—STEEVENS.

Lucky wool-man, butcher, and dealer in skewers! to furnish at once a comment upon the great philosophical tragedy and a proof that its author and you were both of a trade! Fortunate Farmer, to have heard the story! and most sagacious Steevens, to have penetrated its hidden meaning, recollecting felicitously that you had seen packages of wool pinn'd up with skewers! But, O wisest, highest-and-deepest-minded Shakespeare, to have remembered, as you were propounding, Hamlet-wise, one of the great unsolvable mysteries of life, the skewers that you, being an idle lad, could but rough-hew, leaving to your careful father the skill-requiring task to shape their ends!—ends without which they could not have bound together the packages of wool with which you loaded the carts that backed up to the door in Henley Street, or have penetrated the veal of the calves that you killed in such a high style and with so much eloquence, and which loaded the tray that you daily bore on your shoulder to the kitchen-door of New Place, yet unsuspecting that you were to become its master!

Yet we would not too strongly insist upon this evidence, that Shakespeare in his boyhood served both as a butcher's and a wool-stapler's apprentice; for we venture to think that we have discovered evidence in his works that their author was a tailor. For, in the first place, the word "tailor" occurs no less than thirty-five times in his plays. [The reader is to suppose that we are able to record this fact by an intimate acquaintance with every line that Shakespeare wrote, and by a prodigious effort of memory, and not by reference to Mrs. Clark's Concordance.] "Measures" occurs nearly thrice as often; "shears" is found no less than six times; "thimble," three times; "goose," no less than twenty-seven times!—and when we find, that, in all his thirty-seven plays, the word "cabbage" occurs but once, and then with the deliberate explanation that it means "worts" and is "good cabbage," may we not regard such reticence upon this tender point as a touching confirmation of the truth of our theory? See, too, the comparison which Shakespeare uses, when he desires to express the service to which his favorite hero, Prince Hal, will put the manners of his wild companions:—

"So, like gross terms,The Prince will, in the perfectness of time,Cast off his followers; and their memoryShall as a pattern or a measure liveBy which his Grace must mete the lives ofothers."2 Henry IV., Act iv. Sc. 4.

And in writing one of his earliest plays, Shakespeare's mind seems to have been still so impressed with memories of his former vocation, that he made the outraged Valentine, as his severest censure of Proteus, reproach him with being badly dressed:—

"Ruffian, let go that rude, uncivil touch!Thou friend of an ill fashion!"

Act v. Sc. 4.

Cleopatra, too, who, we may be sure from her conduct, was addicted to very "low necks," after Antony's death becomes serious, and declares her intention to have something "after the high Roman fashion." And what but a reminiscence of the disgust which a tailor of talent has for mending is it that breaks out in the Barons' defiant message to King John?—

"The King hath dispossess'd himself of us;We will not line his thin bestained cloak." King John, Act iv. Sc. 3.

A memory, too, of the profuse adornment with which he had been called upon to decorate some very tender youth's or miss's fashionable suit intrudes itself even in his most thoughtful tragedy:—

"The canker galls the infants of the SpringToo oft before their buttons be disclos'd." Hamlet, Act i. Sc. 3.

In "Macbeth," desiring to pay the highest compliment to Macduff's judgment and knowledge, he makes Lennox say,—

"He is noble, wise, judicious, and best knowsThe fits of the season."—Act iv. Sc. 2.

Not the last fall or last spring style, be it observed, but that of the season, which it is most necessary for the fashionable tailor to know. In writing the first scene of the "Second Part of Henry IV.," his mind was evidently crossed by the shade of some over-particular dandy, whose fastidious nicety as to the set of his garments he had failed to satisfy; for he makes Northumberland compare himself to a man who,

"Impatient of his fit, breaks like a fire Out of his keeper's arms."

And yet we must not rely too much even upon evidence so strong and so cumulative as this. For it would seem as if Shakespeare must have been a publisher, and have known the anxiety attendant upon the delay of an author not in high health to complete a work the first part of which has been put into the printer's hands. Else, how are we to account for his feeling use of this beautiful metaphor in "Twelfth Night"?

"Lady, you are the cruell'st she alive,If you will lead these graces to the grave,And leave the world no copy."

Act i. Sc. 5.

But this part of our subject expands before us, and we must stay our hand. We merely offer these hints as our modest contribution to the attempts to decide from phrases used in Shakespeare's works what were his avocations before he became a playwright, and return to Lord Campbell and Mr. Rushton.

When Malone, in 1790, broached his theory, that Shakespeare had been an attorney's clerk, he cited in support of it twenty-four passages. Mr. Rushton's pamphlet brings forward ninety-five, more or less; Lord Campbell's book, one hundred and sixty. But, from what he has seen of it, the reader will not be surprised at learning that a large number of the passages cited by his Lordship must be thrown aside, as having no bearing whatever on the question of Shakespeare's legal acquirements. They evince no more legal knowledge, no greater familiarity with legal phraseology, than is apparent in the ordinary conversation of intelligent people generally, even at this day. Mr. Rushton, more systematic than his Lordship, has been also more careful; and from the pages of both we suppose that there might be selected a round hundred of phrases which could be fairly considered as having been used by Shakespeare with a consciousness of their original technicality and of their legal purport. This is not quite in the proportion of three to each of his thirty-seven plays; and if we reckon his sonnets and poems according to their lines, (and both Mr. Rushton and Lord Campbell cite from them,) the proportion falls to considerably less than three. But Malone's twenty-four instances are of nearly as much value in the consideration of the question as Lord Campbell's and Mr. Rushton's hundred; for the latter gentlemen have added little to the strength, though considerably to the number, of the array on the affirmative side of the point in dispute; and we have seen, that, of the law-phrases cited by them from Shakespeare's pages, the most recondite, as well as the most common and simple, are to be found in the works of the Chroniclers, whose very language Shakespeare used, and in those of the playwrights his contemporaries.

Our new advocates of the old cause, however, quote two passages which, from the freedom with which law-phrases are scattered through them, it is worth while to reproduce here. The first is the well-known speech in the grave-digging scene of "Hamlet":—

"Ham. There's another: Why may not that be the skull of a lawyer? Where be his quiddits now, his quillets, his cases, his tenures, and his tricks? why does he suffer this rude knave, now, to knock him about the sconce with a dirty shovel, and will not tell him of his action of battery? Humph! This fellow might be in's time a great buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries: Is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? will his vouchers vouch him no more of his purchases, and double ones, too, than the length and breadth of a pair of indentures? The very conveyances of his lands will hardly lie in this box; and must the inheritor himself have no more? ha?"—Act v. Sc. 1.

The second is the following Sonnet, (No. 46,) not only the language, but the very fundamental conceit of which, it will be seen, is purely legal:—

"Mine Eye and Heart are at a mortal warHow to divide the conquest of thy sight;Mine Eye my Heart thy picture's sight would bar,My Heart mine Eye the freedom of that right.My Heart doth plead that thou in him dost lie(A closet never pierc'd with crystal eyes);But the defendant doth that plea deny,And says in him thy fair appearance lies.To 'cide this title is impanelledA quest of thoughts, all tenants to the Heart,And by their verdict is determinedThe clear Eye's moiety, and the dear Heart's part;As thus: Mine Eye's due is thine outward part,And my Heart's right, thine inward love of heart."

It would seem, indeed, as if passages like these must be received as evidence that Shakespeare had more familiarity with legal phraseology, if not a greater knowledge of it, than could have been acquired except by habitual use in the course of professional occupation. But let us see if he is peculiar even in this crowding of many law-terms into a single brief passage. We turn to the very play open at our hand, from which we have quoted before, (and which, by the way, we have not selected as exceptional in this regard,) "The Miseries of Enforced Marriage," and find the following passage in Act V.:—

"Doctor. Now, Sir, from this your oath and bond, Faith's pledge and seal of conscience, you have run, Broken all contracts, and forfeiture Justice hath now in suit against your soul: Angels are made the jurors, who are witnesses Unto the oath you took; and God himself, Maker of marriage, He that hath seal'd the deed, As a firm lease unto you during life, Sits now as Judge of your transgression: The world informs against you with this voice.– If such sins reign, what mortals can rejoice? Scarborow. What then ensues to me? Doctor. A heavy doom, whose execution's Now served upon your conscience," etc. p. 91, D.O.P., Ed. 1825.

Indeed, the hunting of a metaphor or a conceit into the ground is a fault characteristic of Elizabethan literature, and one from which Shakespeare's boldness, no less than his genius, was required to save him; and we have seen already how common was the figurative use of law-phrases among the poets and dramatists of his period. Hamlet's speech and the Forty-sixth Sonnet cannot, therefore, be accepted as evidence of his attorneyship, except in so far as they and like passages may be regarded as giving some support to the opinion that Shakespeare was but one of many in his time who abandoned law for letters.