Smith, Oxford, and the Law

It wasn’t until the late 19^th century when prestigious members of the English law community pitched in that the Authorship fight got really nasty and the Stratford defenders began circling the wagons. It was no big deal when lady authors and American poets questioned Shakespeare’s identity, but a Dean of the Arches (the judge who presides in the ecclesiastical court of the Archbishop of Canterbury) was another matter. Questions about William’s literacy, why there was no record of him as an actor before he was signed on by the Lord Chamberlain’s Men, why he couldn’t seem to sign his own name with any confidence, might be brushed aside, but the legal arguments were tough for men of laws and logic to ignore.

How could someone of William’s background, son of a wool dealer with no known education or evidence of legal training, know so much about what it had cost them a great deal of money and years of time? Pamphlets by poets and polemicists might pass without notice, but legal stuff leaves paper trails, the kind that don’t get recycled as jar covers or toilet paper. In itself The Law is a form of history, one that contains a record of what a people have seen as right or wrong going back hundreds of years. The history of a nation’s laws is a history of its social progress. Its legal papers are as precious as money; kept safe for reference, they can be lost only through fire or flood. And what makes a particular document legal? Signatures. Had William of Stratford ever worked as a legal clerk he would have signed documents that would still be in existence. In over 200 years of seeking, such a document has never been found. Ergo, to wit: William of Stratford was never a law clerk.

How then did Shakespeare get a legal education of the sort revealed, not only in scenes that accurately represent legal proceedings as happens in a number of his plays, but also in his accurate use of terms, some of them fairly arcane? The only possible answer is that the author could not be, and so was not, “our fellow” William of Stratford. By the turn of the twentieth century, this fact so alarmed the newly instituted university English Departments that they formed a defense team with the History Departments, and together they set about to refute the questioners. Finding themselves incapable of raising a defense on the level of the legal questioners, when logic proved to be all on the other side, they met it with stonewalling, as they continue to do today.

The lawyers who took on the 19^th century Shakespeare establishment were no outsiders or ambulance chasers, no radicals out to cause trouble. Lord Penzance, aka Lord Campbell (Chief justice of the Queen’s Bench and eminent legal historian) or Sir George Greenwood, MP,  were advocates of the highest sort, one a conservative peer of the realm, the other a respected liberal knight known known for his passionate and eloquent promotion of animal rights and freedom for India.

The sixteenth century in English law is particularly interesting to legal historians because it represents a watershed in the change from centuries-old feudal methods to the modern system that exists today. The changes during this period were immense, as the nation struggled to switch from feudal Canon (Catholic) Law to something else, a change in which both men who had the heir to the Oxford earldom in their hands during his nonage, Sir Thomas Smith and Lord Burghley, Captain and First Lieutenant in the change of course for the English Ship of State we call the Protestant Reformation.

Sir Thomas Smith and the evolution of English Law

When Henry VIII cut ties with Rome in 1533, Canon (ecclesiastical) Law could no longer be taught at the universities. The obvious choice to replace it was Civil Law, also known as Roman Law, the legal system created by the Emperor Justinian (482-565 AD), that was spread throughout Europe during the Church’s centuries of domination. To this end, the King established the first Regius (King’s) Chair in Civil Law, and chose the rising star at Cambridge University, the 27-year-old Thomas Smith, as its first occupant.

Thus compelled by Royal imperative, the University packed the youthful Smith off to the University of Padua, Europe’s top law school, where he spent a year and a half boning up on Roman law and acquiring the books he would need to teach it. Smith was a polymath, a student of everything, and a fast learner. From then on his primary areas of expertise were Civil Law, Roman History, and the Greek classics, of which he was considered a brilliant teacher, the “flower of the university,” as one colleague put it.

Enter the Duke of Somerset

Following the King’s death in 1547, the nation was ruled for the next two years by his son’s uncle, Edward Seymour Duke of Somerset, a militant Protestant who, in partnership with Henry’s Archbishop, Thomas Cranmer, set about to make Protestantism the law of the land. One of “Protector” Somerset’s first moves was to bring the Cambridge star to Court, to act primarily in a legal capacity, first as his Master of Requests, then as his Principal Secretary, then as Principal Secretary to the King (Edward VI). As Mary Dewar shows by the responsibilities given him upon his arrival, it was Smith’s legal training that brought him to Court (26-7), and since this necessarily required a good deal of policy creation and discussion in Parliament, his reputation as writer and orator was also an attraction.

Several of Smith’s Cambridge colleagues had already been brought to Somerset’s Court, but Smith was certainly considered at that time to be their leader. For the next two years, it was into his hands that Somerset and Archbishop Cranmer put much of the work of bringing the ancient English religious and legal systems into line with Protestant Reformation demands. How much of the writing that created these new laws was Smith’s is still not clear. What is a matter of record, however, is that it was he who got the necessary legislation past both the still mostly Catholic bishops and a fractured Parliament, and in a matter of months, a significant feat at any time, a huge feat at that time of bitter religious controversy.

Why is this not a matter of common knowledge? The Academy, particularly the History Department, has striven ever since the newborn English Department took control of the Shakespeare story, to erase Smith from the record, and not only Smith, but both of his biographers as well.  (A closer look at this flagrant abuse of the historians’ mandate to stick to the truth requires a separate essay.)

Smith is deprived

Then, suddenly, two years after arriving at Court, Smith found himself out of a job when Somerset was ousted by the other members of the “advisory board” in whose hands Henry VIII had left the care and education of his son. It seems that Somerset had not been paying sufficient attention to the deadly ambitions of John Dudley, formerly Earl of Warwick, now Duke of Northumberland (father of the youth who would become Queen Elizabeth’s favorite), or to the restive spirits of the other members of the Council.

Smith would spend the next thirteen years out of office. For eight of those years, 1554-1562, his only official duty was to act as Provost of Eton College, something that gave him plenty of time to devote to the raising and tutoring of the heir to the Oxford earldom, a duty that wouldn’t end until 1562 when the death of the 16^th Earl released the twelve-year-old into the custody of the Crown, which left Smith free to be sent to France as Ambassador to the Court of Marie de Medici, a move for which the present ambassador, Sir Nicholas Throckmorton, had been pressuring Secretary of State William Cecil for some time, Smith being the leading authority on what was known then as the Elizabethan Settlement, another clue to his role as one of the founders of the English Reformation as he’s portrayed in John Strype’s 1698 biography.

Smith’s library

Smith had all the most important law books in his library. To his dying day he continued to speak and write about techniques for teaching the law, grumbling at what he perceived was the lax attitude of current studies (Dewar 188). Smith was the author of several tracts that have since become essential to our understanding of Elizabethan government and society, among them his Discourse of the Commonweal and Memorandum for the Coinage. His de Republica Anglorum is, as Dewar describes it, “a constitutional classic” (4).

Teaching was second nature to Smith. It would have been impossible for him to have had de Vere under his care for eight years and NOT to have taught him as much as he could about a subject so dear to his heart and so important to one who would someday have legal duties to perform and properties to maintain and defend.

Shakespeare and the Law

Of all those things that Shakespeare shows such surprising knowledge, the most surprising is his knowledge of the Law. He demonstrates his grasp of legal matters again and again in scenes in his plays in which Law is involved, such as the trials in Merchant of Venice and Measure for Measure, or in the opening scene of Henry V where he puts his spin on one of the burning questions of his day: whether women were legally allowed to rule, or in Hamlet where the gravediggers make jokes about the famous case in English jurisprudence known as Hales vs. Petit.

But another and possibly even more perplexing problem (for the orthodox) than how the author obtained his knowledge is the manner in which he used it. Then as now, legal training was expensive and time-consuming. First came law school, then passing the bar, then years of experience in the courtroom, all this before he could be relied upon for the kind of knowledge that Shakespeare throws about with nonchalance, legal terms and principles one of his favorite sources for metaphors, particularly for love and love relationships. His Sonnets are filled with legal tropes.

The earliest Shakespearean scholars readily admitted Shakespeare’s mastery of legal matters, among them Edmund Malone, George Steevens, and Churton Collins, who noted his “minute and undeviating accuracy in a subject where no layman who has indulged in such copious and ostentatious display of legal technicalities has ever yet succeeded in keeping himself from tripping.” More recently however, Shakespeare orthodoxy, battered by demands for answers to questions of authorship and helpless to demonstrate evidence of any legal training, have simply resorted to a flat denial of what the lawyers and early scholars found obvious; a stance that reduces the argument to the level of schoolyard name-calling. What’s the old saw? If the evidence supports your case, stick to the facts; if it supports the opposition, pound the table.

Did Shakespeare set legal precedent in The Merchant of Venice?

Some years ago I happened on a book written first as a paper by a young law student at Princeton, Mark Edwin Andrews. In “Law vs. Equity in The Merchant of Venice,” Andrews holds that Shakespeare produced the play in 1597 as a commentary on an argument in jurisprudence, just reaching its apogee, over which court had primacy, courts of Common Law or courts of Equity. This argument pitted the two highest jurists of the land on either side, Attorney General Edward Coke, soon to become Judge of the Court of Common Pleas, who held that Common Law should hold precedence, and Lord Keeper Ellesmere, soon to become Lord Chancellor, who held for Equity, administered by the Court of Chancery.

This argument had originated centuries earlier with the establishment under Edward III of the Court of Chancery, administered by the Lord Chancellor, as a means of providing recourse for persons who felt their human rights had been violated by a common law ruling. Common Law, based chiefly on property rights, took little no notice of human situations. The two courts grew side by side throughout the centuries until in the late 16th and early 17th century a showdown came about, due largely to the competitive nature of the men on either side of the question.

Portia’s about-face

Andrews holds that in the trial of Antonio, Portia begins by adhering closely to the rules of Common Law, granting Shylock his pound of flesh as though it were simply property to be handed over to the one with the best case, without consideration of the mortal harm its loss would cause the loser. Then, in the famous switcheroo, she evokes the principles of Equity: since following Common Law in this case will cause Antonio harm––death to be precise––Equity must be considered, and so Shylock will lose because it is clear that his sole purpose all along has been to cause Antonio harm. After all, of what practical use to anyone is a pound of human flesh?

Andrews points out that the showdown probably began in 1597 when Lord Keeper Ellesmere called Parliament into session, announcing in his opening speech his intention to revamp the legal system. Andrews suggests that it was for the lawyers and parliamentarians that gathered in the autumn of 1597 for this meeting of Parliament that Shakespeare produced his Merchant of Venice.

It has been our belief for some time that Shakespeare’s primary audience, the one for whom he wrote his most erudite and penetrating works, were the “gentlemen” of the Inns of Court, located in Westminster, now London’s West End. Although his lighter plays were written for Court holidays and weddings, serious plays like Hamlet, Othello, Measure for Measure, Coriolanus, Julius Caesar and Merchant of Venice were aimed at this highly-educated, primarily masculine audience. These Westminster lawyers, trained in history, rhetoric and logic, could appreciate the full power of his thinking. To them he could speak his most profound thoughts without fear of confusing or offending; and it was for them, of course, that he could indulge himself in the most laughable legal puns and metaphors. If we wish to determine which plays were written originally for this audience, I believe we’ll discover this easily by locating those that contain the most legal imagery.

The most likely theater for this audience was the First Blackfriars Theater located just inside the City Wall on the river, a short walk from the legal district of the Inns of Court, which lay a stone’s throw to the west on the far side of the City Wall. Not until well into the 17th century would there be another theater this close to the West End. Once we can delve more deeply into the history of Blackfriars I believe that we will find that, despite its official closure in 1584, Oxford continued to use it possibly beginning as early as 1570 and continuing off and on (more discreetly after 1584) until 1590.

Oxford, Smith, and the Law

Living with Smith for the better part of eight years, there can be no doubt that, along with language arts, Greek philosophy, history, horticulture, astrology, medicine, hunting and hawking, de Vere was imbued with the basic principles of Law, both English and Continental. Steeped in the ancient beliefs of Plato and Aristotle that the only way to achieve good government was to train the aristocracy in youth, he would have been diligent in his duty even had he not been the enthusiastic teacher that he was reputed to be. And even the most sluggish of students could hardly help but learn in such a circumstance, and we know from contemporary comment that de Vere was regarded as an eager scholar. The handful of comments we have about Oxford by his contemporaries mention more than once his interest in subjects relating to good government.

That Oxford failed to use his legal knowledge to maintain and increase his inherited property does not mean he didn’t use it at all. Never given the opportunity to use his knowledge of the Law, history, and government theory in some aboveboard service of his country, he used it to capture the hearts and inform the minds of the English legal establishment by comparing it to a thousand homely and deeply understood human situations, many of them illustrated by well-known historical events. This sufficiently explains, to my mind at least, why we find Shakespeare comparing a kiss to a contract sealed by lovers’ lips, among numerous other comparisons that might seem ridiculously arcane and far-fetched if we weren’t so lost in admiration of his language.