Part One Shakespeares Alleged Blunders in Legal Terminology Essay Example For Students

Part One Shakespeares Alleged Blunders in Legal Terminology Essay Part One Shakespearequot;s Alleged Blunders in Legal Terminology Mr. William C. Devecmon of the Maryland bar has written an extremely interesting book* to establish the proposition that Shakespeare was not trained to the law. His arguments are strong and well expressed. But he is not so successful in the attempt in his last chapter to set forth Some of Shakespeares Errors in Legal Terminology. We propose to examine briefly his allegations as to this matter. The instances he cites of supposed inaccuracy are as follows: I. Queen. Tell me what state, what dignity, what honor Canst thou demise to any child of mine? King Richard. Even all I have; ay, and myself and all, Will I withal endow a child of thine. ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?Richard III, IV, iv, 248-251 Upon this passage Mr. Devecmon comments, Dignities and honors could not be demised; and be cites Comyn and Blackstone. We answer. 1. If we interpret the word demise in its technical sense, the queen, who asks the question implying the negative, speaks correctly. King Richard cannot so demise them. 2. But if Shakespeare, after his wonted manner, uses the word in something like its root sense send down or away, transfer, transmit, like endow two lines later in the sense of equip, furnish, again we say the phraseology is accurate enough. In neither word does he imply a technically legal process. 3. If it be a mistake, is it not a very natural one in the mouth of the queen not learned in the law? It may impart verisimilitude. II. Hamlet. Besides, to be demanded of a sponge! What replication should be made by the son of a king? ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?Hamlet, IV, ii, 12, 13, Spragues Edition. Says Devecmon, A very few days, or, at most, weeks, of practical training in a lawyers office, would have sufficed to teach Shakespeare that this is an incorrect use of the word replication. He adds, that, in the technical language of the law in pleadings, a replication is the plaintiffs reply to the defendants plea. Answer. 1. This is not in the course of pleading. Shakespeare uses replication precisely as Chaucer had done more than two hundred years before in his Knights Tale line 1846, Gilmans edition in the sense of replyÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬? My wyl is this, for plat conclusioun Withouten any replicacioun. It is found in the same sense in the Lovers Complaint Passionate Pilgrim, 1609 and Loves Labors Lost, IV, ii, 16. In Julius Caesar I, i, 44-46, Spragues edition we read, Have you not made an universal shout That Tiber trembled underneath her banks, To hear the replication of your sounds? Here it is manifestly in the sense of echo, repetition, or reverberation. 2. Hamlet, speaking nearly six centuries before the play was composed, can hardly be thinking of the pleadings in Elizabethan courts. He never saw the inside of any Chitty on Pleadings. Shakespeare, then, put no mistake in his mouth; but, if he had done so, it would have proved nothing against Shakespeares knowledge of the law. III. Thaliard. For if a king bid a man be a villain, he is bound by the indenture of his oath to be one. ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?Pericles, I, iii, 6, 7. Says our critic, Here the oath of allegiance is referred to. The use of the word indenture is entirely out of place. Answer. 1. This passag e is conceded by all the best Shakespearean scholars, or nearly all of them, to be by some other pen than Shakespeares. His part of Pericles, if he had any hand in its composition, does not begin till we reach Act III. 2. If Shakespeares, it is reasonable to explain the word as metaphorical, as it surely is in King JohnÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬? Upon thy cheek lay I this zealous kiss As seal to this indenture of my love. ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?II, i, 20. In Hamlet V, i, 104, Spragues edition, and in I Henry IV, II, iv, 44; III, i, 80, 139, 257, indenture is used in its strict legal sense, showing that Shakespeare was fully aware of its technical signification. 3. The last scene in Pericles takes place in the Temple of Diana at Ephesus. Is it not preposterous to expect a lord of Antioch in that play, some hundreds of years B. C. , to use with scrupulous precision the law phraseology of Shakespeares age? IV. Hotspur. Methinks my moiety, north from Burton here, In quantity equals not one of yours. ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?I Henry IV, III, i, 96, 97. Some modem lawyers and text-writers, remarks Devecmon, use the word moiety as inaccurately as Shakespeare, as though it could mean a third or any part. Answer. 1. Moiety here refers to a third part. It seems to have been rarely if ever restricted to the mathematical half. 2. Eight times in Shakespeare e. . in Hamlet, I, i, 90, Spragues edition the word is used as the equivalent of portion. It is the French moitiÃÆ'ƒÂ © from Lat. medietas, and, like Lat. medius and Eng. mid, does not necessarily imply division in the exact middle. Half was also vaguely used by the old writers for side or Part, as we now often use the word quarter. Thus Chaucer has, O n fourÃÆ'ƒÂ « halvÃÆ'ƒÂ «s of the house about. Millers Tale, Gilmans edition line 3481. The freshman could quote good authority for his translation of the first sentence in Caesars Commentaries, All Gaul is quartered into three halves! Says Moberly, The word moiety, like halb or half, originally means only a part; as desshalb and similar German words show. V. Queen Katherine to Wolsey. I do believe, Induced by potent circumstances, that You are mine enemy, and make my challenge You shall not be my judge. ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?Henry VIII, II, iv, 74-77. To challenge, declares our critic, is to object to those who are returned to act as jurors. The judge was not subject to challenge. Answer. 1. To challenge in Shakespeare is found at least eighteen times in the sense of to claim as of right. Very likely therefore it is so used here. It would suit the context perfectly. 2. This court is ecclesiastical rather than secular, an extraordinary tribunal, proceeding by canon rather than by common law. The two cardinals, Wolsey and Campeius, are at once judge and jury. If the queen has in mind the usages of law trials, the word challenge is nevertheless felicitous. 3. But if not so, this Spanish-born Katherine, who is laboring under tremendous excitement, and who is not versed in hair-splitting legal distinctions, may be excused for using the word without technical accuracy. It may well mark her extreme agitation. VI. Horatio. Our valiant Hamlet * * * Did slay this Fortinbras; who, by a sealed compact, Well ratified by law and heraldry, Did forfeit with his life. * * * ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?Hamlet, I, i, 85-87, Spragues edition. Quoting from Rapalje Lawrences Law Dic. , Devecmon says, Ratification is where a person adopts a contract or other transaction which is not binding on him because entered into by an unauthorized agent. In this passage, says Devecmon, well ratified by means strictly in accordance with. He adds, As a legalism its use is out of place. Answer. 1. The burden of proof that well ratified by is out of place is on the critic. King Hamlet, probably by his ambassador, made a compact with Fortinbras, King of Norway. Before this compact could become binding, it had to be ratified by King Hamlet. What evidence have we that it was not so ratified? If, then, the word is to have its technical sense, it is in all probability corr ect. 2. But if it is not to bear its technical meaning, what valid objection can be offered to its use? Shakespeare is much given to employing words in their radical sense. Ratified, from Lat. atus, fixed, and fac to make, fi- to be made, is equivalent to confirmed. In the sense of confirm, sanction, or make valid, he uses it at least seven times e. g. Macbeth, III, vi, 33, Spragues edition; Tempest, V, i, 8, Spragues edition. Skelton has it to the same effect in his Colin Clout 1520, Levins in his Manipulus Vocabulortim 1570, Bacon in his Political Fables 1605. Why should not Shakespeare in the passage quoted from Hamlet? 3. Horatio, the Dane, six centuries before, could hardly be expected to be familiar with the legal terminology of Littleton, Coke, and Selden. _______ Part Two Shakespearequot;s Alleged Blunders in Legal Terminology VII. King Claudius. Therefore our sometime sister, now our queen, The imperial jointress of this warlike state ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?Hamlet, I, ii, 8, 9, Spragues edition. On this passage Devecmon quotes Co. Litt. 46: Jointress, a woman who has an estate settled on her by her husband, to hold during her life if she survive him. He comments, Queen Gertrude could have neither a dower nor a jointure in the Kingdom, of Denmark. Answer. 1. King Claudius in the eleventh century, courting popularity, and not having the fear of English or American lawyers before his eyes, uses both the word imperial and the word jointress with poetic vagueness, yet with a deceitful assumption of right, as if Gertrude were indeed an empress dowager. The phrase imperial jointress is adroitly used, and it shows Shakespeares deep insight into the kings cunning. 2. If not so, the word, being quite rare, may well be used, as most commentators claim, simply for sharer, partner, joint occupant. VIII. Boyet. So you grant pasture for me [offering to kiss her. Lady Maria. Not so, gentle beast. My lips no common are, though several they be. ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?Loves Labors Lost, II, i, 221, 222. Devecmon asserts, Shakespeare doubtless knew that one cannot at the same time hold a thing in common and in severalty; and if so, he here sacrifices his knowledge for a mere play on words, which I fancy a professional pride, if he had any lega l training, would not have permitted him to do. Answer. This is a question not of knowledge but of taste. Would Shakespeare, if he had been a trained lawyer, have perpetrated such puns? Perhaps not. The way in which Shakespeare dramatizes the prejudices of his own society in the court scene of The Merchant of Venice EssayGive me at least my 10,000 ducats , says the Jew. The judge replies, I will give you nothing: if you will have the pound of flesh, take it: if not, I will order, etc. We must again insist that these crude proceedings of a court held perhaps five hundred or a thousand years ago are not intended as a picture of an Elizabethan tribunal scene, but that the dramatist, while following English usage sufficiently to make his audience understand what is supposed to be taking place, is really in imagination in mediaeval Venice, giving the very age and body of the time his form and pressure. The same fact must be borne in mind in considering the fifth specification under Devecmons charge against Shakespeare, of ignorance, unreason, and injustice; viz. , 5. The court quickly resolves itself into one of criminal jurisdiction, and the Jews life and goods are declared forfei ted. This is one of those particulars in which Devecmon holds that the trial scene disregards all ideas of law, justice, and morality for mere dramatic effect. Answer. Although this particular feature is not in the Italian novel on which, as we have seen, Shakespeare constructed a great part of the trial scene, it, as also the other proceedings, finds a close parallel in a case narrated by Mr. John T. Doyle of Califomia in the Overland Monthly of July 1886 partly reproduced in Furnesss Variorum Edition of Merchant of Venice, pp. 417-420. Let us premise some particulars. Sojourning for some months in the city of Granada, Nicaragua, in 1851 and 1852, Mr. Doyle became involved in half a dozen lawsuits, in several of which the five following steps occurred: 1. The magistrate Alcalde directed some one present to go and call the plaintiff into court. So Mer. of Venice, IV, i, 14 the duke sent for Shylock, Go and call the Jew into court. 2. The facts being agreed upon, the judge in Nicaragua announced that he proposed to submit the case to a practicing lawyer, a jurisconsult, unless competent objections were made. In like manner Mer. of Ven. , IV, i, 100, 101 we hear the duke say, Bellario, a learned doctor, whom I have sent for to determine this. Bellario, being ill, dispatches the disguised Portia to act in his stead, if accepted Mer. f Venice, IV, i, 153-156, Spragues ed.. The duke graciously accepts the substitute, saying, You are welcome; take your place IV. i, 161. 3. The plaintiff, too, must distinctly accept the referee. After some delay Shylock does this with emphasis IV, i, 229-230 ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬? I charge you by the law, Whereof you are a well-deserving pillar, Proceed to judgment. 4. One condition further mu st be fulfilled to give the new judge complete jurisdiction; the defendant also must formally assent. Antonio does it cordially IV, i, 234, 235 ÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬? Most heartily I do beseech the court To give the judgment. 5. Another curious coincidence comes to light between the custom in Spanish-American countries and that exemplified in Venice; as we may fairly infer from what takes place in IV, i, 397-444. Mr. Doyle tells us that the custom of the country costumbre del pais required that the successful party, in a suit in which such amicus curiae was called in, should bestow on the referee a honorarium gratification they called it for his services. It was $200 in Doyles case. Similarly the duke suggests, Antonio, gratify this gentleman IV, i, 397. Three thousand ducats are accordingly offered the brilliant jurisconsult, Portia. She declines the money, but takes in lieu of it gloves and a precious ring. 6. We come now to what Devecmon regards as the climax of ignorance or illegality, the sudden assumption of criminal jurisdiction by this court. Mr. Doyles parallel case is in brief outline as follows: A question arose in this city as to the disposition of the estate of a gentleman who had been slain at Mazatlan in an encounter with his partner, while discussing in anger the state of their accounts. There had been a trial over the case in Mexico. The surviving partner put forward claims before our court, which caused me, in behalf of the next of kin of the deceased, to send to Mexico for a complete transcript of the judgment record there. [Mr. Doyle here gives an account of the official inquiry as to the cause of death. The inquiry was made before the Alcalde, who conducted the inquiry with evident partiality to the survivor. At the conclusion the Alcalde acquitted him. Intermediate proceedings took place. ] The Fiscal States Attorney, on behalf of the State, intervenes, and appeals to the Supreme Court. There the witnesses are re-examined; they contradict each other badly, and break down * * * The judgment below is then reversed, the defendant sentenced to death, and the Alcalde, before whom the trial had been had below is sentenced to pay a fine of $100 for his partiality and misconduct! There is no reason to suppose that this Mexican case is a solitary instance. A sufficient investigation would probably reveal the fact that in all the Spanish-American nations, and very likely in all of those of southern Europe, at least in their early stages, courts of justice, like Turkish cadis today, freely exercised equity, civil, and criminal jurisdiction. How Shakespeare came to know of these customary forms, or, if he did not know of them, by what strange accident he lighted on them, is a mystery. Mr. Doyle remarks, If Shakespeare knew nothing of Venetian law, there was no great improbability in assuming it to resemble that of. Spain, considering that both were inherited from a common source, and that the Spanish monarchs had so long exercised dominion in Italy. Let us at any rate be slow to charge him with ignorance. The range and accuracy of his information, says Lowell, were beyond precedent or later parallel. Like many before him, Devecmon charges Portia i. e. Shakespeare with cruelty towards Shylock, cruelty surpassing that of the thumb screw or the rack, in making him abandon the cherished religion of his fathers and his race, and embrace the hated religion of the Christian. Such critics forget that, according to the current belief in those remote ages and even in Shakespeares day, instead of cruelty, the greatest possible kindness was shown to Shylock, rescuing him as a brand from the burning. They verily believed that, by professing Christianity and receiving baptism, he would be saved from endless damnation and made sure of an. eternity of bliss! Devecmon accuses Portias rulings as being bad in morals, aside from the law. Here is a man who for three months has had murder in his heart, and has often gloated over the anticipated joy of killing the irascible yet sweet-souled Antonio. He has come in order to perpetrate the horrid deed in open court. There, in presence of the duke, he has whetted the knife to cut out Antonios heart. He has scouted the pathetic appeals of the duke and of Portia for mercy. He has produced the scales which he has brought into court to weigh the flesh. He has fiercely avowed his fixed intent. He is, impatient to spring like a tiger upon his meek victim. He has broken the law of Venice and of God. He has forfeited life, prosperity, and liberty. Yet he is instantly pardoned. He is set free. He is allowed to retain half of his ill-gotten millions, to do with them as he pleases. The other half is held in trust for his daughter and her husband, the whole to be theirs upon his death. Says Devecmon, We feel little pity for Shylock, but our sense of reverence for the law is shockedÃÆ' ¢Ãƒ ¢Ã¢â‚¬Å¡Ã‚ ¬Ãƒ ¢Ã¢â€š ¬?the majesty of the law is degraded. But what majesty of law is upheld when a contract contra bonos mores is allowed to be enforced? Such Devecmon concedes this to have been, quoting the familiar maxim, Ex turpi causa lion oritur actio. The law of the Twelve Tables, which we have quoted, and which in the remote past was interpreted to permit the creditors to cut an insolvent debtor in pieces, was very likely in Shakespeares mind. He applies a crucial test. He shows its sharp antagonism to the higher law; that, Mercy is above this sceptred sway. Never again, in England at least, could a law authorizing murder seem valid. It was high time that some one should show that when mans law squarely conflicts with Gods law, mans must give way. Majesty of Law! Would it, then, have vindicated the wicked law, or made it more revered, if Portia had permitted the butchery of Antonio? We have a law, and by that law he ought to die, said some of the ancestors of Shylock John, xix, 7, and the greatest crime of all the ages was perpetrated, it was claimed, in strict accordance with law! Homer B. Sprague, Ph. D. , Ex-Pres. Univ. of N. Dakota.