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 war
How 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 impanelled
A quest of thoughts, all tenants to the Heart,
And by their verdict is determined
The 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.
For we object not so much to the conclusion at which Lord Campbell arrives as to his mode of arriving at it. His method of investigation, which is no method at all, but the mere noting of passages in the order in which he found them in looking through Shakespeare's works, is the rudest and least intelligent that could have been adopted; and his inference, that, because Shakespeare makes Jack Cade lament that the skin of an innocent lamb should be made parchment, and affirm that it is not the bee, but the bee's wax, that stings, therefore he must have been employed to write deeds on parchment and append wax to them in the form of seals, is a fair specimen both of the acuteness and the logic which his Lordship displays in this his latest effort to unite Law and Literature.
There are, however, very considerable grounds for the opinion that Shakespeare had more than a layman's acquaintance with the technical language of the law. For it must be admitted, in the first place, that he exhibits a remarkable acquaintance with it. That other playwrights and poets of his day manifest a like familiarity (as we have seen they do) precludes us, indeed, from regarding the mere occurrence of law-terms in his works as indications of early training proper to him alone. But they who, on the strength of the not unfrequent occurrence of legal phrases in many of the plays and much of the poetry of the Elizabethan period, would maintain that Shakespeare's use of them furnishes no basis for the opinion that he acquired his knowledge of them professionally, must also assume and support the position, that, in the case of contemporary dramatists and poets, this use of the technical language of conveyancing and pleading also indicates no more than an ordinary acquaintance with it, and that, in comparing his works with theirs in this regard, we may assume the latter to have been produced by men who had no professional acquaintance with the law; because, if they had such professional acquaintance with legal phraseology, its appearance in their works as well as in Shakespeare's would manifestly strengthen rather than invalidate the conclusion, that his familiarity with it was acquired as they acquired theirs. This position is, to say the least, a very difficult one to maintain, and one which any considerate student of Elizabethan literature would be very unwilling to assume. For our ignorance of the personal life of Shakespeare is remarkable only because he was Shakespeare; and we know little, if any, more about the greater number of his literary contemporaries than we do about him. It cannot even be safely presumed, for instance, that George Wilkins, the author of the law-besprinkled passage just above quoted from the "Miseries of Enforced Marriage," was not a practising attorney or barrister before or even at the time when he wrote that play. On the contrary, it is extremely probable, nay, quite certain, that he and many other dramatic authors of the period when he flourished, (1600-1620,) and of the whole Elizabethan period, (1575-1625,) were nestling attorneys or barristers before they became full-fledged dramatists.