Shakespeare and the Law

It wasn’t until the late 19th century when prestigious members of the English law community pitched into the argument that the 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 the Shakespeare authorship, but a Dean of the Arches 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 legal arguments are tough 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 the Law?  Fringe creatures like actors and poets might slip through the records unnoted, but legal matters leave permanent paper trails, the kind that don’t get used as jar covers or toilet paper.

The Law is in itself a form of history, containing as it does a record of what a people sees as just and fair going back hundreds of years.  The history of a nation’s laws is a history of its civil progress.  Its legal papers are as precious as money; kept safe for future reference, they can be lost only through fire or flood.  And what makes a particular document legal?  Certain appropriate language, yes, but beyond this it’s signatures.  You can have all the language in the world, without signatures a contract, a judgement, isn’t legal.  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 expressed, not only in scenes that accurately represent legal proceedings as portrayed in so many 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, fellow William.

Those fond of the Stratford story or bound to it in other ways proceeded to form a defense team, and set about to refute it.  When logic proved to be all on the other side, they simply met it with stonewalling.  Nor did they ever raise a legal defense on the level of Lord Penzance, Lord Campbell or Sir George Greenwood.  For the lawyers who took on the 19th-century Shakespeare establishment were no outsiders or ambulance chasers, no radicals out to cause trouble.  Lord Penzance (Dean of the Arches), Lord Campbell (Chief justice of the Queen’s Bench and eminent legal historian), and Sir George Greenwood (Member of Parliament), were jurists of the highest sort, the first a conservative peer of the realm and judge of important courts, the second, a respected parliamentarian and legal historian, the third a knight of the realm, a passionate and eloquent defender of animal rights and freedom for India––all interested, not just in points of law, but in its history as well. (For a detailed account of the history of the argument, see Mark Alexander’sShakespeare and the Law.)

The 16th century in English law is particularly interesting 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, were Captain and First Lieutenant in this turbulent change of course for the English Ship of State.

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, the legal system that Rome, during its centuries of domination of Europe, had evolved to deal with civil matters.  To this end, the King established the first Regius (King’s) Chair in Civil Law, and picked the up-and-coming 27-year-old Cambridge hotshot, Thomas Smith, as its first occupant.  The University packed him off to the University of Padua, the leading Continental law school, where he spent a year and a half boning up on Roman law.  Smith was a polymath, a student of everything, and a fast learner.  From then on his primary areas were Civil Law, Roman History, and the Greek classics, of which he was considered a brilliant teacher, the “flower of the university,” as one of his collegues put it.

Following the King’s death in 1547, the nation was ruled for the next two years by his son’s uncle, the Duke of Somerset, a Reformation ideologue who quickly set about to cut ties between the nation’s legal and religious systems and the Church.  One of Somerset’s first moves was to bring Smith to Court, first as his Master of Requests, then his Principal Secretary, then Principal Secretary to the young King.  Dewar shows clearly through the responsibilities that given Smith upon arrival that it was his legal training that brought him to Court (26-7).  Since this involved a good deal of speaking and writing, his reputation as a brilliant speaker and writer were also important. Many of his Cambridge colleagues were already members of Somerset’s Court, but Smith was certainly considered at that time to be the leader of the pack (36).

For the next two years, it was into Smith’s hands that Protector Somerset and Archbishop Cranmer put much of the work of bringing the ancient English religious and legal systems into line with Reformation values.  How much of the writing that created these new laws was Smith’s is still not clear.  What is clear is that he got reform legislation past bishops and parliament in a matter of months, a significant feat at any time, a huge feat at that time of great social unrest.  Then, suddenly, two years after arriving at Court, Smith found himself out of a job when Somerset was ousted in a palace coup.

Smith spent the next 13 years out of office.  For eight of those years, 1554-1562, his only (semi) official duty was the raising and tutoring of the heir to the Oxford earldom,  a duty that didn’t end until 1562 when the death of the 16th Earl released the boy, now twelve, into the cusody of the Crown, at which point Smith was immediately sent overseas as Ambassador to France. a role for which he was qualified by his knowledge of Civil, i.e. international, Law, a necessity for a diplomat.

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 put it, “a constitutional classic” (4).

Shakespeare and the Law

Of all those things that Shakespeare shows such surprising knowledge, the most surprising is 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 demolishes onstage one of the burning questions of his day: whether women were legally allowed to rule England; or in Hamlet where the gravediggers make jokes about the famous case in English juriprudence 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, with legal terms and principles one of his favorite sources for metaphors, particularly  for love and love relationships. His Sonnets are filled with legal tropes.  What lawyer ever lavished his expensive and hard won knowledge on such a purpose?

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 (pron. Cook), 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, as 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, often took little no notice of the human element.  The two courts grew side by side throughout the centuries until in the late 16th and early 17th century, largely due to Coke and Ellesmere’s rivalry for power, came the final showdown.

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, what practical use does anyone have for 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 partiamentarians that gathered in the autumn of 1597 for this meeting of Parliament that Shakespeare produced his Merchant of Venice.

It has been my view for some time that Shakespeare’s primary audience, the one for which he wrote his most thoughtful and penetrating works, was 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 written primarily for this highly-educated, primarily masculine audience.  These Westminster lawyers, trained in rhetoric, could appreciate the full power of his language.  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 absurd 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 Blackfriars, 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 the official loss in 1584, Oxford continued to use it possibly beginning as early as 1570 and continuing off and on (more discreetly after 1584) until 1589.

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.  With no heir of his own to train, Smith would hardly have sloughed off the opportunity to influence his nation by training one of its potentially most influential youths in a discipline so important to his, and his nation’s, future.

Steeped in the ancient beliefs of Plato and Aristotle that the only way to achieve good government was to train the aristocracy in youth, Smith 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 putting it in the mouths of attractive actors.  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.