By R. J. A. Burnett
"It is more pleasing to exercise our ingenuity in proving that which is,
not accepted, than to merely support what is."-Burke
Malone(1) in the Prolegomena to his edition of Shakespeare, 1790, was the first to draw attention to the dramatist's predilection for legal phraseology, and to his no less extraordinary degreee of accuracy in it's employment.1(Edmund Malone, 1741 -1812, critic. Aided in detection of the Rowley forgeries of Chatterton, and the Shakespeare ones of Ireland. Was a member of the Johnson Circle. Boswell made him one of his literary executors.)
Lord Campbell(2) makes special reference to Shakespeare's legal acquirements, both in his Lives of the Chancellors and the Lives of the Chief Justices, and in 1859 published a long and elaborate letter, under the title of Shakespeare's Legal Acquirements Considered; but his scrutiny of the plays and poems though profound in a legal sense was otherwise superficial and perfunctory. The writer gave his opinion that there were twenty-three of the plays which showed evidence of legal knowledge, and fourteen which failed to do so, viz : Cymbeline, Henry V, Henry VI, Parts I and II, Henry VIII, Julius Caesar, Richard II, Richard III, Pericles, The Tempest, Timon of Athens, Titus Andronicus, Twelth Night and The Two Gentlemen of Verona.2(John Campbell, 1st Lord Campbell, 1779-1861, held the offices successively of Solicitor and Attorney-General, Lord Chancellor of Ireland, Lord Chief Justice and Lord Chancellor.)
Anyone, however, possessed of only a certain amount of familarity with Tudor law can readily show that there is hardly a single play (without considering the Poems and the Sonnets)which has not some reference to leagal points and practice.
Despite Lord Campbell's fourteen exceptions, the legal subjects covered in the plays he enumerates over a remarkably wide field, e.g. the rights of a freeholder, special pleading, judicial conduct, fine and recovery, arrest on mesne process, acton on the case, deed polls, writ of extent praemunire, legal memory, criminal law, conveyancing, Crown Office practice, the court leet, trial by battle, tenure in chivalry, wardship, marriage of minors and numerous others.
Where an apparent ignorance of the law is displayed, or where there is an apparent misuse of some well known legal term or phrase, this may have been deliberate, so far as Bacon was concerned, to help the concealment of his authorship, or it may have been the work of one of his 'pens' which had failed to catch his eye (knowingly or othewise, on revision of the text.)
The late Professor J. Churton Collins in the chapter, "Was Shakespeare a Lawyer?" in his Studies in Shakespeare, 1904, obviously bewildered by even the small number of examples of law in the plays which he cites, can only to this conclusion :"Perhaps the simplest solutuon of the problem is to accept the hypothesis that in early life he (Shakespeare) was in an attorney's office; that here he contracted a love for the law which never left him, that as a young man in London, he continued to study or dabble in it for amusement, to stroll in leisure hours into the Courts, and to frequent the society of lawyers. On no other supposition is it possible to explain the attraction which the law evidently had for him, and 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."
It is indeed extraordinary that learned professors and others should weave such a fantastic theory as to suppose the actor, William Shaxper, to have been an attorney's clerk and yet at the same time resolutely refuse to investigate the obvious. In Churton Collins' book there is also a chapter on "The Bacon-Shakespeare Mania!"
E.J.Castle, in his interesting study, Shakespeare, Bacon, Jonson and Greene, 1897, takes the view that, whilst William Shakespeare of Stratford was composing the plays, etc., he must have engaged the assistance of some erudite lawyer, showing as he does besides legal knowledge, an otherwise unaccountable familarity with the habits of counsel learned in the law, and decides that his friend could have been none other than Bacon. But why should WIlliam Shakespeare be so anxious to pour into his plays and other work so much of the law (and often quite irrelevantly) as to all on the services of Bacon, who, one would imagine, was hardly likely to lend himself to any such arrangment ?
Sir Sidney Lee maintains that Ben Jonson and Spenser, Massinger, and Webster, "employ law terms with no less frequently and facility than Shakespeare.........Spenser, he says, "In his romantic epic is even more generous than Shakespeare. Spenser, he says, "....in technical reference to legal procedure. It is indeed passing strange that these men should also possess the necessary legal knowledge, but Lee's assertion leaves the problem unsolved. To those, however, who agree that all evidence points to Spenser's having been one of Bacon's ' masks', this point presents no difficulty.
Referring to the play Henry VIII, Lee in his A Life of William Shakespeare remarked, "two different pens were clearly at work." :"No reader, he declared," with an ear for metre can fail to detect in the piece two rhythms, an inferior and superior rhythm."
The authorship has been commonly attributed to a partnership between Shakespeare and Fletcher, (3) similar to that in The Two Noble Kinsmen, first printed in quarto, 1634, and written according to the title-page "by the memorable worthies of their time Mr. John Fletcher, and Mr. William Shakespeare, gentlemen."(3) John Fletcher, 1579- 1625. The plays attributed to Beaumont and Fletcher number fifty-two plus a masque; but it is generally believed that often e.g. Massinger, Rowley, and Shirley, collaborated in many of them.
It was included in the folio edition of Beaumont and Fletcher, published in 1679, and was performed by the King's Players in 1613, together with a lost play, licensed for publication as the History of Cardenis, by Fletcher and Shakespeare, in 1653. Lee, obviously embarrassed as to the identity of the writer of Henry VIII, quotes the famous passage of "Wolsey's Farewell" as recalling at every point the style of Fletcher, and nowhere that of Shakespeare; but admits that the Fletcher style as here indicated is invested with a greatness that is not matched elsewhere in his work. Lee is driven to the conclusion that Shakespeare is giving "proof of his versatility by echoing in a glorified key the habitual strain of Fletcher, his colleague and virtual successor." Dr. F. J. Furnivall states categorically that this notable speech is unquestionably Fletcher's. Yet, when we read that Wolsey bids Cromwell, "Fling away ambition, by that sin fell the angels," we can recall Bacon's essay Of Goodness, 1625,"The desire of power in excess caused the angels to fall;"
and when the Cardinal speaks of "little wanton boys that swim on bladders"--a quite out of the way allusion, we discover that Bacon wrote :"It is one method to begin swimming with bladders, which keep you up, and another to begin dancing with heavy shoes, which weigh you down." De Augmentis, VI, iv).
Incidently there is a striking similarity here with :"You have dancing shoes
With nimble soles: I have a soul of lead
So stakes me to the ground I cannot move."
(Romeo and Juliet I, iv, 14)
James Spedding had an elaborate theory that Fletcher hastily completed Shakespeare's unfinished draft for the special purpose of enabling the play to be performed by the King's Players in celebration of the wedding between Princess Elizabeth and the Elector Palatine, which took place on February 14th 1612-13.
According to an extant list, nineteen different plays were peformed during May 1613 in honour of this event, but Henry VI and Henry VIII was not among them.
Dr. A. C. Partridge in his The Problem of Henry VIII , Reopened, agrees with Spedding's idea that there was no simultaneous collaboration between the two dramatists, but says that when Shakespeare returned to Stratford, Fletcher was called in to complete the play.
The belief that this was the combined work of Shakespeare and Fletcher has been in the main accepted by succeeding Elizabethan scholars, though from time to time the conclusion has been challenged.
Some critics would bring in Philip Massinger (1583-1640) as the joint author with Shakespeare.
But, putting aside the many different and irreconcilable propositions as to the authorship of the play, as it appears in the First Folio, there is considerable and cumulative evidence pointing to Francis Bacon.
We know that he contemplated writing, "The History of Henry the Eighth," but only succeeded in compiling a very small portion published by Dr. William Rawley in 1629 under "Certain Miscellany Works of the Right Hon. Francis Verulam, Viscount of St. Alban."
According to Spedding (Vol.VII) in March 1621-22, Bacon had written Greek characters notes for an interview which he hoped might be granted him by the King. It appears from them that he intended to ask His Majesty if he might recompile the laws ect. or alternatively proceed with his history of Henry VIII. It seems that at this time, the manuscript of Henry VIII having been returned by the king, it has been printed, and was on sale at six shillings. Copies were sent to James, to the Duke of Buckingham and later to the Queen of Bohemia.
On 10th of January 1622-23, Sir T. Wilson had reported to the king that Bacon had applied to him for such papers as he had relating to the reign of Henry VIII; and one month later this request was granted.
Spedding also gives an extract from a letter written by Chamberlain on the same date:"That Lord (Bacon) busies himself about books, and hath set out two lately, 'Historia Ventorum' and 'De Vita et Morte', with promises of more. I have not seen either of them because I have not leisure; but if the life of Henry VIII, which they say he is about, might come out after his own manner, I should find time and means enough to read it."
In a letter to Buckingham, then in Spain, Bacon, on 21st February that year, asks to be remembered to Prince Charles, "who , I hope ere long will make me leave Henry VIII, and set me on work in relation of his Highness's heroical adventures." Did Bacon for some reason, which may later appear, and also to create sympathy for his own case, write the play or drastically revise an original, rather than continue with the 'Life?' The Prince of Wales was interested in Bacon's work on Henry, but the writer makes excuses for not proceeding. Writing to his good friend, Tobie Matthew, 26th June 1623, he remarks :"Since you say the Prince hath not forgot his commandment touching my history of Henry VIII, I may not forget my duty. But I find Sir Collier, who poured forth what he had in my other work, somewhat dainty of his materials in this."
With this excuse Bacon proceeds :"My labours are now most set to have those works which I had formerly published, as that of 'Advancement of Learning,' that of 'Henry VII that of 'The Essays,' being retractable and made more perfect, well translated into Latin, by the help of some good pens which forsake me not."
And he afterwards wrote to Prince Charles :"for Henry VIII, to deal truly with your Highness, I did so despair of my health this summer, I was glad to choose some such work as I might compass within days, so far was I from entering into a work of length."
Rawley, in his Dedication to Sylva Sylvarum, expresses his regret to Charles, now king, that the contemplated 'History', "died under the designation meerley, there is nothing left", and begs his majesty "graciously to accept of the Undertaker's Heart and Intentions who was willing to have parted for a while with his darling Philosophie that he might have attended your royal commandment in that other worke."
The late Sir George Greenwood in his The Shakespeare Problem Restated says that the play of Henry VIII and never before been heard of (together with Taming of the Shrew, Timon of Athens, Julius Caesar, Coriolanus and All's Well) before the publication of the First Folio. There was, however, a play on the subject entitled "All is True, representing some principal pieces in the reign of Henry VIII."
According to Sir Henry Wotton, in a letter dated 2nd July, 1613, this was a new play acted by the King's Players at Bankside, and was associated with the final scene in the career of the Globe Theatre, so closely identified with the Shakespeare Plays.
The theatre was destroyed by a fire on 29th June that year, caused it is said by the discharge of the chambers (similar to small mortars) which were used to signify the arrival of the King at Wolsey's house.
No lives were lost; "nothing did perish", declared Wotton, "but wood and straw and a few forsaken cloaks; only one man had his breeches set on fire, that would perhaps have brayed him, if he had not by the benefit of a provident wit put it out with bottle (d) ale."
And in a MS letter of Thomas Larkin to Sir Thomas Pickerin, dated, "London, this last day of June" 1613, the story is thus told :"No longer since than yesterday, while Burbage and his companie were acting at the Globe the play of Henry VIII and their shooting of certain chambers in way of triumph, the fire catched," ect.
The so called play of Henry VIII is really a historical pageant or masque in two parts, the first relating the triumph of Wolsey over Buckingham, the love of Henry for Anne Bullen, the divorce of Queen Katherine, the king's marriage, the coronation of Anne, the fall of Wolsey, the trial of Crammer, and the prophecy of the fame of of Anne's daughter, the future Queen Elizabeth. The action covers the period, 1521-33, though some events such as the death of Katherine, which occurred in 1536, have been moved from their actual sequence. The material is mainly taken from the Chronicles of Holinshed and Stowe, and from Foxe's Acts and Monuments of Church.
Hazlitt claimed that the Play, "contains little action or violence of passion, yet it has considerable interest.....and some of the most striking passages in Shakespeare's works." Dr. Johnson wrote, " the meek sorrows and virtuous distress of Katherine have furnished such scenes, which may justly be remembered among the greatest efforts of tragedy. But the genius of Shakespeare comes in and goes out with Katherine. Every other part may be easily conceived and easily written."
Johnson, however, is at fault in his judgment. Hazlitt regards the scene of Buckingham being led to execution as, "one of the most affecting and natural in Shakespeare"; and says "the character of Wolsey, the description of this pride and of his fall are inimitable and have besides their gorgeousness of effect, a pathos, which only the genius of Shakespeare could lend to the distress of a proud bad man like Wolsey."
The character of the king, Hazlitt remarked,"is drawn with great truth and spirit. It is like a disagreeable portrait, sketched by the hand of a master. His gross appearance, his blushing demeanour, his vulgarity, his arrogance, his sensuality, his cruelty, his hypocrisy, his want of common decency and common humanity are marked in strong lines."
Although it would be difficult for anyone, without preconceived notions, to deduce from the play one-half of these evil qualities, was Bacon, consciously or unconsciously, giving expression to the bitterness he must have felt, with all his reverence for kingship, against James for the treatment to which he had been subjected?
The Prologue warns the audience in advance :"I come no more to make you laugh; things now
That bear a weighty and serious brow,
Sad, high, and working , full of state and woe,
Such noble scenes as draw the eye to flow,
We now present.............."
Dr. Johnson remarked that the Prologue of Henry VIII was written by Ben Jonson, an opinion which has been maintained by the majority of critics.
The tenor of the old play had been completely changed, losing its 'merry' and 'bawdy' character, Bacon thus seizing the opportunity to call attention to his own misfortunes and sorrows.
Amongst a number of others there are two or three special points which indicate the Baconian authorship of the play. Despite the assertion of Lord Campbell, Henry VIII is a "legal" play in a very particular sense, and contains certain professional knowledge, who only a trained lawyer was likely to possess.
For example, the Queen,when confronted by Wolsey, declares that he shall not be her judge :"I utterly abhor, yea, from my soul,
Refuse you for my judge."
Sir William Blackstone has pointed out that 'abhor and 'refuse' are technical terms of the Canon law, "Detestor" and "Recuso". It is true that these words occur in the passage in Holinshed, from which the incident is derived, but it would require an expert to detect that they are technical terms in law.
Buckingham is arrested by Brandon's order's by a sergeant in arms in accordance with the law.
Wolsey, when accused, of issuing illegal commisions, defends himself with the plea that he had proceeded, "by learned approbation of the judges", and when the King asks him if he had acted by precedent, and gets no reply, his Majesty says :"To every county
Where this is questioned, send our letters, with
Free pardon to each man that has denied
The force of this commission."
Bacon wrote : "Unjust sentences......which are afterwards drawn into precedents (a quibus exempla petuntur) infect and defile the very fountain of justice." (De Augmentis, VIII, ii, parabola xxv)
These letters were to be despatched to the discontented counties where "bold mouths," "all in uproar," were traducing and censuring Wolsey on account of his exactions.
Bacon declared,"The first remedy, or prevention, is to remove by all means possible that material cause for sedition....... which is want and poverty in the estate."(Essay, xv, 1625). In 1593 he delivered a speech in Parliament, in which he spoke of , "Danger and discontentment" from excessive taxation of the "general commonality."
As the late Dr. Melsome remarked in his The Bacon-Shakespeare Anatomy :"As Bacon warns the members of Parliament of discontentment caused by the oppression of the poor people and the consequent danger to the Queen; so Norfolk warns Henry that the poor people "are all in uproar and danger serves among them. " (I, 2, '36)
In April 1604 Bacon was solicited by members of the House to petition the King relative to the "great grievance" of the common people. Therein he began :"It is affirmed unto me by divers gentlemen of good regard......"
In the play Katherine is similarly solicited to petition her husband concerning the "great greivance of the common people," and she states, "I am solicited, not by a few, and those of true condition." (I, 2, 18). There are a number of very obvious parallels between various points in these speeches, and the scene in the play, which Dr. Melsome has detailed.
The oppression, which was the theme of Bacon's 1593 speech, was the granting of three subsidies , payable in four years :"The danger is this," he declared, " we (shall thus) breed discontentment in the people. And in the cause of jeopordy , her Majesty's safety must consist mor ein the love of her people than in their wealth, and therefore (we should beware) not to give them cause of discontentment."
It is evident that in Elizabeth's time there was no precedent for "three subsidies payable in four years," neither was there any for Wolsey's exaction of a "sixth part of each to be levied without delay--"a trembling contribution."
The word "wholesome", as applied to laws which do not cause discontent among the commonalty, frequently occurs amongst the writings of Bacon , and Katherine used it when she said, "But you frame things......which are not wholesome to those that would know them...." and it appears again in Coriolanus in a similar connection.
Wolsey declares that his treatment of the Queen is warranted,"By a commission from the consistory
Yea, the whole consistory of Rome,"
and Campeggio, the papal legate (called Campeius in 'Hall' and "Holinshed' and in the play) complains in what a difficult position the Court is involved by the Queen's quite legal refusal to attend it proceedings, as she had appealed to Rome. When his brother cardinal introduces Campeius to the king, it is all done in customary form. In the following passage there is a curious employment of the word 'scholars.' Wolsey in informing his Majesty that Katherine is entitled to legal assistance, says :".......not to deny her that
A woman of less place might ask by law,
Scholars, allowed freely to argue for her."
By royal injunction, Henry in 1535 had commanded the Universities to cease teaching, examining, or granting degrees in canon law, which by the suppresson of the papal authority had been largely abrogated. If, therefore, it was no longer possible to obtain a degree in canon law, those versed therein must remain 'scholars' who are described by the Cardinal as, "reverend fathers, men of singular integrity and learning."
There is of course a slight anachronism here, as the trial, which was necesssarily under canon law, took place in 1529, six years before the decree was issued, but such a slight disrepancy would not be long after the event. The Court is left powerless, and has to be adjourned by her majesty's departing, after giving notice that she appeals Rome.
Throughout the play 'law' seems everywhere to fit into the text.
An extremely interesting and significant feature of Henry VIII is the peculiar and intimate knowledge displayed of the manners and customs relating to the Chancellorship. Both Wolsey and Bacon were deprived of the office : to those of the Reformed Religion the former's humiliation was a matter more or less of conscience; jealousy was the main motive actuating Bacon's enemies in their determination that he should be crushed.
Wolsey lost his position because he could not obtain a decision from Campeius to the question of divorce. The latter we know had in a letter to the Pope affirmed that this should not be forthcoming. Wolsey was indicted on the 9th of October 1529 on the formal charge of having illegally obtained Bulls to be made legate; but declaring he was not aware of having committed any offence, he threw himself on the king's mercy. The judgment, however, was that he was outside the king's mercy, and that he must forfeit all lands and goods.
Although in his greed, his Majesty allowed his Chancellor to be deprived of his possessions and the Seal, as both the latter and Campeius expected, Henry did not desert him at once, but tried to help him as far as Anne would allow. Wolsey was well aware that there was the weight that pulled him down, and in that one woman all his glories were lost for ever.
His plate was for the most returned to him : he received a general pardon, and was permitted to retain a large retinue of servants: the king sent his own physicians to him when he was ill, and ordered them not to take any fees, and found him the money to set out for his archbishop of York.
But Anne and the Duke of Norfolk were determined upon Wolsey's complete destruction, and Henry yielded. In the play the king is made as much his enemy as Anne. Now in the case of Bacon, sacrificed as he was to save the prestige of James, and Buckingham from impeachment, the king soon remitted the fine of 40,000 quid imposed upon him, and he was released from the Tower after a few days detention. When we reach the 'farewell to greatness speech we seem to hear Bacon rather than Wolsey. James' Chancellor had uttered his valediction to the pomp and circumstance of public life, which meant so much to him. We find him writing in Latin to the Spanish ambassador :"Age, fortune and even my genius call me, that, leaving the theatre of civil affairs, I may give myself to letters, and instruct the actors themselves and serve posterity."
Is the phrase, "instruct the actors," a recondite allusion to the impending publication of the First Folio? The long Stage Direction at the commencement of Act II, 4, in which the procession to the Court is so fully detailed must have been written by someone familiar with this kind of proceeding.
When the Lord Chancellor sits in Court in virtue of his office, the Mace is carried in. In the play both the sword and mace are borne before Wolsey when he goes with Campeius to open the Legatine Court at Blackfriars. Wolsey, however, takes his seat as Legate from the Pope, and not as chancellor, but no doubt would command any ceremonial which might enhance his dignity, and sense of authority and power. But in Bacon's case, when the Lord's were debating the procedure to be followed at his forthcoming trial, they resolved that the mace should be shown to him only, and not carried before him : no degradation was to spared him! Their victim , so fully conscious of his complete innocence, avoided the insult by feigning illness. He would of course by thoroughly acquainted with the significance of the mace.
Another circumstance, which points to the Baconian authorship of the play, is the emphasis so clearly laid on Wolsey as Chancellor, the office and all it's attendant accessories being fully described, whilst little is heard of his cardinalate. His chancellorship was really only an incident among the other positions which he held. Campeius said that all Wolsey's grandeur was connected with the Church. Cavendish* tells us that Wolsey, "Had two great crosses of silve, whereof one of them was for his archbishopric, and the other for his legacy, borne always before him withersoever he went or rode, by two of the tallest and comeliest priests that he could get within all the realm," and when he went to Westminster,"there was always borne before him first, the Great Seal of England, and then his Cardinal's hat, by a nobleman or some worthy gentleman right solemly bareheaded, and also the two crosses of silver, and two great pillars of silver, and his pursuivant at arms with a great mace of siver gilt."
Cavendish was a servant of Wolsey as cardinal rather than as Lord Chancellor, and does not seem to have been interested as to who carried the seal.*George Cavendish (1500-1561). Gentleman usher to Wolsey who continued to serve him to the end. He left in MS form a Life of his patron, which is the main original authority on the subject.
"When he (the Chancellor) appears in his official capacity in the presence of the Sovereign, or receives messengers from the Commons at the bar of the House of Lords, he carries the purse himself; on other occasions it is carried by his purse bearer, and lies before him as an emblem of his authority."-Lord Campbell states (Lives of the Chancellors, Vol I, p.27)
Now in the stage directions when Wolsey first appears on his way to attend the King in the Council Chamber we read :"Enter Cardinal Wolsey (the purse borne before him),certain of the Guard and, and two Secretaries with papers."
No mention is made of the crosses nor of the Cardinal's hat, only the purse is referred to. Wolsey's part in the history of the period was played as Cardinal and Legate and not as Chancellor; and therefore in the ordinary way stress would not have been laid on what was only incidental to his career.
In the trial scene (II, 4, I) remarkable emphasis is placed on Wolsey with all his insignia. We have trumpets, etc. vergers, scribes, the Archbishop of Canterbury alone, then sundry bishops, "next them, with some small distance, follows a Gentleman bearing the Purse, with a Great Seal, and a Cardinal's Hat; then two Priests, bearing each a Silver Cross; a Gentleman Usher bare headed, accompanied with a Sergeant At Arms, bearing a Siver Mace; then two Gentlemen, bearing two great Silver Pillars; after them, side by side, the two Cardinals, Wolsey and Campeius."
No cross, no Cardinal's hat for Campeius it seems, and the King and Queen come only "with their Trains."
But with Bacon there was a great difference. He was Lord Chancellor--that was all. When he lost that office and was deprived of the right to hold any other, and banished from the Court, it was indeed "Farewell, a long farewell, to all my greatness!" In the Order of Procession for the Coronation of Anne Bullen (IV, 1) when Thomas More was Chancellor , he appears second after two Judges "with the purse and mace before him," but the Mayor of London had apparently to carry his own mace.
The last time the Chancellor is referred to in the play is again in the Council Chamber (V,2) at the trial of Crammer, whe he "places himself at the upper end of the table on the left hand." Then in due form the Chancellor puts the question to the Council, as Bacon no doubt often had done. :"It stands agreed I take it, by all voices, that forthwith
You be conveyed to the Tower a prisoner;
There to remain, till the King's further pleasure
Be known unto us. Are you all agreed, Lords?
All : We are."
Said Buckingham (II, 1) :"For those you make friends,
And give your hearts to, when they once perceive
The least rub in your fortunes, fall away
Like water from ye, never found again
But where they mean to sink ye."
Wrote Bacon :"Who then to frail mortality shall trust
But limns the water, or but writes in dust."