The Atlantic Monthly, Volume 04, No. 21, July, 1859

"Bol. I am denied to sue my livery here,
And yet my letters patents give me leave:
My father's goods are all distrain'd and sold;
And these, and all, are all amiss employed.
What would you have me do? I am a subject,
And challenge law: Attorneys are denied me;
And therefore personally I lay my claim
To my inheritance of free descent."—Ib. Sc. 3.

And Lord Campbell, although he passes by these passages in "Richard II.," quotes, as important, from a speech of Hotspur's in the "First Part of Henry IV.," the following lines, which, it will be seen, refer to the same act of oppression on the part of Richard II. towards Bolingbroke:—

"He came but to be Duke of Lancaster,
To sue his livery and beg his bread."

    Act iv. Sc. 3.
But, here again, Shakespeare, although he may have known more law than Holinshed, or even Hall, who was a barrister, only used the law-terms that he found in the paragraph which furnished him with the incident that he dramatized. For, after recording the death of Gaunt, the Chronicle goes on:—

"The death of this duke gave occasion of increasing more hatred in the people of this realme toward the king; for he seized into his hands all the rents and reuenues of his lands which ought to have descended vnto the duke of Hereford by lawfull inheritance, in reuoking his letters patents which he had granted to him before, by virtue whereof he might make his attorneis generall to sue liverie for him of any manner of inheritances or possessions that might from thencefoorth fall unto him, and that his homage might be respited with making reasonable fine," etc.—HOLINSHED, Ed. 1587, p. 496.

The only legal phrase, however, in these passages of "Richard II," which seems to imply very extraordinary legal knowledge, is the one repeated in "Henry IV.,"—"sue his livery,"—which was the term applied to the process by which, in the old feudal tenures, wards, whether of the king or other guardian, on arriving at legal age, could compel a delivery of their estates to them from their guardians. But hence it became a metaphorical expression to mean merely the attainment of majority, and in this sense seems to have been very generally understood and not uncommonly used. See the following from an author who was no attorney or attorney's clerk:—

"If Cupid
Shoot arrows of that weight, I'll swear devoutly
H'as sued his livery and is no more a boy."

FLETCHER'S Woman's Prize, Act ii. Sc. 1.

And this, from the works of a divine:—

"Our little Cupid hath sued livery
And is no more in his minority."

    DONNE'S Eclogues, 1613.
Spenser, too, uses the phrase figuratively in another sense, in the following passage,—which may be one of those which Chalmers had in his eye, when, according to Lord Campbell, he "first suggested" that Shakespeare was once an attorney's clerk:—

"She gladly did of that same Babe accept,
As of her owne by liverey and seisin;
And having over it a litle wept,
She bore it thence, and ever as her owne it kept."

    Faërie Queene, B. VI. C. iv. st. 37.
So, for an instance of the phrase "fee," which Lord Campbell notices as one of those expressions and allusions which "crop out" in "Hamlet," "showing the substratum of law in the author's mind,"—

"We go to gain a little patch of ground,
That hath in it no profit but the name.
To pay five ducats, five, I would not farm it;
Nor will it yield to Norway or the Pole
A ranker rate, should it be sold in fee,"—

    Act iv. Sc. 2.
and of which Mr. Rushton quotes several instances in its fuller form, "fee simple,"—we have but to turn back a few stanzas in this same canto of the "Faërie Queene," to find one in which the term is used with the completest apprehension of its meaning:—

"So is my lord now seiz'd of all the land,
As in his fee, with peaceable estate,
And quietly doth hold it in his hand,
Ne any dares with him for it debate."

    Ib. st. 30.
And in the next canto:—

"Of which the greatest part is due to me, And heaven itself, by heritage in fee." Ib. C. vii. st. 15.

And in the first of these two passages from the "Faërie Queene," we have two words, "seized" and "estate," intelligently and correctly used in their purely legal sense, as Shakespeare himself uses them in the following passages, which our Chief Justice and our barrister have both passed by, as, indeed, they have passed many others equally worthy of notice:—

"Did forfeit with his life all those his lands
Which he stood seiz'd of to the conqueror."

    Hamlet, Act i. Sc. 1.
"The terms of our estate may not endure
Hazard so near us," etc.—Ib. Act iii. Sc. 3.

Among the most important passages cited by both our authors is one that every reader of Shakespeare will recollect, when it is mentioned to him,—Hamlet's speech over the skull in the grave-digging scene. But although this speech is remarkable for the number of law-terms used in it, only one of them seems to evince any recondite knowledge of the law. This is the word "statutes," in the following sentence:—

"This fellow might be in's time a buyer of land, with his statutes, his recognizances, his fines, his double vouchers, his recoveries." Act v. Sc. 1.

The general reader supposes, we believe, and very naturally, that here "statutes" means laws, Acts of Parliament concerning real estate. But, as Mr. Rushton remarks, (Malone having explained the term before him,) "The statutes referred to by Hamlet are, doubtless, statutes merchant and statutes staple." And "a statute merchant (so called from the 13th Edward I., De mercatoribus) was a bond acknowledged before one of the clerks of the statutes merchant, and the mayor, etc., etc. A statute staple, properly so called, was a bond of record, acknowledged before the mayor of the staple," etc., etc.

Here we again have a law-term apparently so out of the ken of an unprofessional writer, that it would seem to favor the Attorney and Solicitor theory. But let us see if the knowledge which its use implies was confined to Shakespeare among the dramatists of his time.

In Fletcher's "Noble Gentleman," a comedy, first performed in 1625, we find a lady, sorely pushed for ready cash, crying out,—

"Take up at any use: give bond, or land,
Or mighty statutes, able by their strength
To tie up my Samson, were he now alive."

    Act i. Sc. 1.
And in Middleton's "Family of Love," (where, by the way, the Free-Love folk of our own day may find their peculiar notions set forth and made the basis of the action, though the play was printed two hundred and fifty years ago,) we find a female free-loveyer thus teaching a mercantile brother of the family, that, although she has a sisterly disregard for some worldly restraints, she yet keeps an eye on the main chance:—

"Tut, you are master Dryfab, the merchant; your skill is greater in cony-skins and woolpacks than in gentlemen. His lands be in statutes: you merchants were wont to be merchant staplers; but now gentlemen have gotten up the trade; for there is not one gentleman amongst twenty but his lands be engaged in twenty statutes staple."

Act i. Sc. 3.

And in the very first speech of the first scene of the same play, the husband of this virtuous and careful dame says of the same "Gerardine," (who, as he is poor and a gentleman, it need hardly be said, is about the only honest man in the piece,)—"His lands be in statutes." And that poor debauchee, Robert Greene, who knew no more of law than he might have derived from such limited, though authentic information as to its powers over gentlemen who made debts without the intention of paying them, as he may have received at frequent unsolicited interviews with a sergeant or a bum-bailiff, has this passage in his "Quip for an Upstart Courtier," 1592:—

"The mercer he followeth the young upstart gentleman that hath no government of himself and feedeth his humour to go brave; he shall not want silks, sattins, velvets to pranke abroad in his pompe; but with this proviso, that he must bind over his land in a statute merchant or staple; and so at last forfeit all unto the merciless mercer, and leave himself never a foot of land in England."

Very profound legal studies, therefore, cannot be predicated of Shakespeare on the ground of the knowledge which he has shown of this peculiar kind of statute.

It is not surprising that both our legal Shakespearean commentators cite the following passage from "As You Like It" in support of their theory; for in it the word "extent" is used in a sense so purely technical, that not one in a thousand of Shakespeare's lay readers now-a-days would understand it without a note:—