Shakespeare's Law

Mark Fortier

• Publisher: Routledge
• Year: 2022
• ISBN:
  9781000577389
• Edition: 1
• Topic: Littérature
• Subtopic: Critique littéraire

Shakespeare's Law is a critical overview of law and legal issues within the life, career, and works of William Shakespeare as well as those that arise from the endless array of activities that happen today in the name of Shakespeare. Mark Fortier argues that Shakespeare's attitudes to law are complex and not always sanguine, that there exists a deep and perhaps ultimate move beyond law very different from what a lawyer or legal scholar might recognize.

Fortier looks in detail at the legal issues most prominent across Shakespeare's work: status, inheritance, fraud, property, contract, tort (especially slander), evidence, crime, political authority, trials, and the relative value of law and justice. He also includes two detailed case studies, of The Merchant of Venice and Measure for Measure, as well as a chapter looking at law in works by Shakespeare's contemporaries. The book concludes with a chapter on the law as it relates to Shakespeare today.

The book shows that the legal issues in Shakespeare are often relevant to issues we face now, and the exploration of law in Shakespeare is as germane today, though in sometimes new ways, as in the past.

1 Law in Shakespeare's Life and Career

DOI: 10.4324/9781003023203-2

In this chapter, unlike in later chapters, my focus is on Shakespeare as an individual in history: the law this person encountered in his life and career. The chapter serves a few purposes. It illuminates the historical background and the regulations by which early modern theatre operated. Some rudimentary knowledge of these matters is important for anyone interested in early-modern theatre and essential for anyone interested in Shakespeare and Law. The law Shakespeare encountered as a theatre worker must have had some effect, even a strong effect, on what he wrote, although the effects are extremely various and more often than not hard to pin down. There are direct effects, such as an avoidance of certain oaths and subject matter that could be taken as seditious. But general and underlying attitudes to, say, the constitution and ubiquitous systems of status are much more complicated. I make no claims to ironing them out here. Law in general as Shakespeare experienced it was part of the raw material he used in complex, partly hidden ways endlessly open to interpretation. Moreover, Shakespeare’s encounters with law were vital and current in his time, but in what specific ways do they still matter when we encounter Shakespeare’s works today? That is a question for later chapters.

A few years ago as a Christmas present I was given Catherine Alexander’s Shakespeare: The Life, The Works, The Treasures, a very fancy coffee table book from the Royal Shakespeare Company. Inserted in its pages are envelopes and pockets containing facsimiles of documents pertaining to Shakespeare’s life and work. The first few documents one encounters are all legal: a record of Shakespeare’s father, John Shakespeare, being fined for making an illegal garbage dump; a lease signed by John Shakespeare; the registration of Shakespeare’s baptism (I myself am old enough to remember when as a boy my baptismal certificate functioned as valid identification for certain purposes); his marriage license; the records of his children’s baptisms and his son’s death; a property purchase agreement; a request for a loan; an official interrogation of one of Shakespeare’s fellow actors over the possibly seditious performance of Richard II during the Essex rebellion (more on that to come). As the pages are turned one encounters official records by the Master of the Revels (more on that position shortly) of performances of Shakespeare’s plays, accounts of state payments to Shakespeare and his company, official permission for his company to stage public performances, the registration of Shakespeare’s land purchase in London, Shakespeare’s will, and the registration of his burial.

What is the significance of so many legal documents? In part it is a testimony, as Jonathan Bate has noted, of the centrality of record-keeping for law: “Lawyers and court officers are better at writing things down than theatre people are….That is why we have more glimpses of Shakespeare in and around the courts than in and around the theatre” (Bate 2009, 162). Bate’s own coffee table book (with Dora Thornton), Shakespeare Staging the World, begins with a facsimile of Shakespeare’s deposition in the case of Belott v. Mountjoy, one of the few times we have a record of what Shakespeare said as himself. In addition to the extent of legal record-keeping, these records point to the way that Shakespeare’s life—like our own, with our contracts, mortgages, product guarantees, passports, marriages, wills, and parking tickets—was immersed in a wide range of legal realities. Law is a big part of life, if to a greater or lesser degree, explicitly or implicitly, for each of us. This chapter, more than any other in this book, is concerned with the historical reality of Shakespeare’s time, with situating Shakespeare in the legal structures that had an impact on his life and career, and presumably on his writing. Some of those structures in their details are specific to the past; others continue to be relevant. The overarching pattern, of lives inflected by legal arrangements, not just the rare time one goes to court but in everyday situations, remains true today.

Concerning another aspect of Shakespeare’s relation to law, there are no documents. There is a longstanding but unsubstantiated suspicion among some that, during the years of his early adulthood that cannot be accounted for—the so-called “lost years”—Shakespeare worked in the legal profession in some capacity, perhaps as a law clerk. There is no record of such activity and most are rightly sceptical. It would be one way to account for Shakespeare’s extensive familiarity with and deployment of legal ideas and terminology in his work (which arises in longstanding arguments that Shakespeare must really be Francis Bacon, or more recently, the Earl of Oxford). In regard to this legal knowledge, Peter Ackroyd cites Mistress Page from The Merry Wives of Windsor, who surmises of Falstaff that the devil has him “in fee simple, with fine and recovery” (80), terminology from real property law indicating full ownership, here used to describe the condition of a man’s soul. Stephen Greenblatt, discussing the same suspicion about Shakespeare’s legal training, cites Venus and Adonis, where a kiss is likened to a wax seal legally finalizing a bargain (72). It is telling that both the passages cited are ones in which legal terminology is brought to bear on situations that are not narrowly legal, or legal at all: salvation and erotic love. This transfer is an ongoing focus of my analysis and a fundamental linchpin of Law and Literature studies as I see them: the application of legal reasoning outside the law arising from the basic interplay of legal and extralegal concerns. Ackroyd also notes that, if Shakespeare did work in law, he didn’t stick with it. Instead, he became an actor and playwright (82). Like his contemporaries, John Webster and John Ford, who studied law at the Inns of Court, the law schools of the time, Shakespeare’s career took him outside and away from law (as has my own), if he was ever part of it. In their theatre work, Shakespeare, Webster, and Ford come to law not from within but as somewhat sceptical observers with the perspective a different discipline provides. In this positioning, I see myself as well as the focus of this book, which treats law from a literary and theatrical position not limited by or necessarily faithful to legal understanding and parameters.

An important ability often noted that Shakespeare took from law or more likely from the rhetorical emphasis of his general education was the ability to argue both sides of a question. A lawyer can find themselves on either side of a case, just as members of a debating club don’t choose whether they will be arguing for or against a proposition. They could very likely find themselves arguing something they don’t personally believe. We are left, probably inescapably, with the question of the ultimate import of this skill for Shakespeare. A playwright doesn’t get assigned one side or the other but has to perform both. And Shakespeare is often very good at appearing even handed. Does the doublespeak indicate disinterestedness, ambivalence, scepticism, a professional commitment to dramatic opposition and conflict, a higher equanimity, or are there behind it positions held firmly and only partly hidden, for strategic reasons, by a useful and disingenuous ambiguity?

Another aspect of rhetoric—and poetry—is a delight in words and terminological systems. It is easy to imagine a lawyer in love with the rhetoric and terminology of the law. But more than that the job calls for a commitment, even if only on a practical level, to the value and power of this rhetoric and terminology. In a play, professional jargon exists in a freer state, for example in Ben Jonson’s elaborate mimicking of a mountebank in Volpone. You don’t have to be committed to fraud to delight in Volpone’s words. Often in Shakespeare, there is joy in language itself. There is also, because the way law speaks about the world resonates with more general understandings, a commitment to the importance of legal words and terminology, although not necessarily in the same way a lawyer would be committed to them. Thus a kiss seals a contract.

Law in Shakespeare's Life

As noted earlier, a number of the legal documents inserted into Shakespeare: The Life, The Works, The Treasures have to do with Shakespeare’s father: the garbage fine, the lease. John Shakespeare was a local public figure, a justice of the peace, a constable, an alderman, and mayor of Stratford, whose dealings brought him into contact with the law in many ways, ways that his son would have witnessed. Shakespeare would have seen his father acting in his official capacities, exercising the duties and perks of office. Office holders and their competence and integrity, or lack thereof, are a recurring subject in Shakespeare’s work. He witnessed and was involved in his father’s property dealings, personally taking part in the legal proceedings concerning nonpayment over a land sale in 1588 (Bate 300). Along with Shakespeare the playwright there was the Shakespeare interested in acquiring property and status. In his personal dealings, Shakespeare was anything but a radical. Indeed the buying, selling, and leasing of real estate is one of the main currents of legal activity in the lives of both father and son, if less central in the plays (for a very compendious account of Shakespeare’s relations to land law, see Senn). David Armitage notes that one striking difference between father and son as property-owning gentlemen, and therefore eligible and appropriate for a role in civic life, is that only the father and not the son was a public office holder; the son seems never to have been interested in pursuing such a thing (29–30). Their property dealings involved having lawyers work on their behalf, although lawyers are much less common in the plays than are judges. John Shakespeare sometimes fell afoul of the law, with the garbage dump, but also for selling large quantities of wool without a licence, and also for usury (Ackroyd 21). There is a long-lived legend that Shakespeare himself was a poacher of deer (Bate 293–94).

Most seriously, Shakespeare’s father, like most of his family, many in his community, and perhaps Shakespeare himself, was a Catholic and as such subject to state sanctions, including the seizure of property. If you wanted to keep your property out of the hands of the state, you could try passing ownership to a family member, something called fraudulent conveyance and seen by analogy throughout Shakespeare’s work by Charles Ross, in the various ways characters nefariously run off with things. John Shakespeare was under suspicion and fined for not regularly attending Church of England services (Ackroyd 65–66, 79). For Catholics, things could get much worse. The Act of Supremacy of 1558 required everyone, upon pain of treason, to take an oath of allegiance to the monarch as head of the Church of England; earlier in the century refusal to do so had cost the staunch Catholic Thomas More his life. Catholic priests were banned from England and if caught, were subject to torture and execution. Often they were hidden in Catholic households. Catholics had to play a fine balancing act between their religious principles and a necessary outward allegiance to the state and its official church. John Shakespeare most likely made and hid away a “spiritual testament” to his Catholic faith in a standard format distributed surreptitiously by English priests (Ackroyd 22–23). The persecution of Catholics was a fact of life for Shakespeare, and the infamous Elizabethan network of spies and surveillance (spying and surveillance being commonplace in Shakespeare’s works) would have been most familiar to him through the cat-and-mouse game of the state searching out Catholic priests and Catholic sympathies and Catholic communities clandestinely harbouring them—although he would also have experienced the spy game in the nasty rumours concerning Christopher Marlowe and the circumstances of his suspicious death: maybe Marlowe was a spy, maybe he was spied upon and heard to proclaim terrible blasphemies (for book-length accounts of the Elizabethan spy network, see Haynes and Alford). The gruesome execution of Catholic priests was not a unique measure. Cruel and unusual punishment was everywhere and largely taken as justified: the Catholic conspirators behind the Gunpowder Plot to blow up parliament were publically drawn and quartered, a horribly gruesome procedure, as were others convicted of treason. Since they had attempted to tear the state asunder, they themselves were torn asunder in return. The Earl of Essex, although found guilty of treason, was, given his high social status, beheaded rather than drawn and quartered. Coming in to London from Southwark south of the river, one could see the heads of the executed on pikes set high up on the bridge tower.

Shakespeare was the eldest male child and legitimate, in a society for which primogeniture, maleness, and legitimacy were all vital factors in one’s status. In these regards, he was privileged socially and legally. He lived in a society with a very strong class hierarchy supported by laws in wide and various ways (in terms of class, Shakespeare was neither high nor particularly low). One such set of laws that had an effect both in the world at large and in the theatre were sumptuary laws, which among other things, prohibited the wearing of certain fabrics, such as velvet, by anyone not a member of the nobility—with an exception for actors playing nobles on stage. Like, and as, such an actor, Shakespeare’s status was an interplay of harsh fixed realities and more open imaginative possibilities. In 1568, John Shakespeare began a legal application for an official coat of arms, which would give him and his heir, William, the status of gentlemen. In part, such an application merely asserted that the family had long held gentleman status, which had been lost along the way. A coat of arms was merely a restoration of such status. Shakespeare’s father let the application go dormant but it was revived almost 30 years later, probably by Shakespeare himself, and carried through to completion on his father’s (and his own) behalf (Ackroyd 45–46, 274, Greenblatt 78–79). Shakespeare wanted to be a gentleman and succeeded at becoming one.

Because of its documentary record, the case of Belott v. Mountjoy has taken on prominence in the legal aspects of Shakespeare’s biography. The case concerned the residents of a house in London where Shakespeare had lived. Mountjoy had offered Belott, his apprentice, a certain sum of money to marry his daughter but refused to pay. Shakespeare was questioned as to what he knew about the situation. He is cagey in his answers, speaking to Belott’s good character but not admitting that he knew of or remembered a promise for any particular amount of money. The conflicting assertions of the case show the difficulty in proving an oral agreement, especially with the passage of time. Belott ended up with a small fraction of what he was supposedly promised.

Shakespeare and Anne Hathaway were married when she was already pregnant. They married in some haste and required a special license to do so (Bate 151)—luckily for them they didn’t reside in Measure for Measure’s Vienna. Both of Shakespeare’s daughters were involved in legal proceedings concerning their sexual reputations. In 1613, Susannah successfully brought a charge of slander in the Stratford bawdy court against John Lane who had claimed that she “had been naughty with Rafe Smith at John Palmer's” (Bate 167). In 1616, Judith was excommunicated for marrying in Lent without a special licence and her new husband was brought before the bawdy court charged with having had sex and a child with another woman. Shakespeare took his son-in-law’s name out of his will (Ackroyd 482–83).

Shakespeare’s will is the most famous nondramatic document associated with him. His status as a gentleman is noted from the very beginning: “I William Shackspeare of Stratford upon Avon in the countrie of Warr., gent.” Status, we will see, is as important a social and legal notion in his work as anything, but the will is also enmeshed in other prominent legal and social concerns. A will is by definition involved in inheritance, ubiquitously important in Shakespeare’s work. Most of his property is left to his eldest living child, Susannah. Primogeniture demands that most things pass to the eldest male child (Shakespeare himself was the eldest son, as was his father), but Shakespeare’s only son had died, so the eldest daughter is next in line. She gets money, real estate, and chattels. Her younger sister, Judith, gets less. Marriage is another aspect involved in the will: Shakespeare leaves his wife the “second best bed,” which has been taken as either a slight or a fond token of love and remembrance. What part of his estate not specifically mentioned in the will was to go to her is a matter of debate and might have depended on differences of inheritance law in different jurisdictions, Warwickshire and London (Ackroyd 481–85, Bate 178–79). So it is not clear whether and to what extent the document honours or dishonours his marriage. Shakespeare’s will makes no mention of what we have inherited from him, his writing, and in that sense is not a document that speaks to his literary and dramatic legacy—unlike Ben Jonson who died and was buried acknowledged, and celebrated as an illustrious poet. On the other hand, status, inheritance, primogeniture, property, and marriage are central concerns of his plays.

The English history that most interested Shakespear...