The Courts DESPITE Shakespeare"s frequent use of legal phrases and allusions his knowledge of law was neither profound nor accurate, and it is unnecessary to explain such knowledge as he had by assuming that he enjoyed even a legal education as clerk in a lawyer"s office. [COMMENT 1] In Shakespeare"s England the Inns of Court were not, as now, merely inhabited by practicing barristers for business purposes. Their members formed a real and very lively community, dwelt in the Inns, dined habitually in their halls, and regarded them much as University men still regard their colleges.
They were the intellectual as well as the geographical centre of London. The Inns of Court men, as we know, delighted in "masques and revels" and dramatic performances, and at least three of Shakespeare"s plays were acted in the Halls of the Middle Temple and Gray"s Inn. Many authors of that age beside Shakespeare made free use of legal phrases and allusions. The writings of Ben Jonson, Spenser, Webster, Beaumont and Fletcher, and others are full of them.
It seems probable, therefore, that both dramatists and actors were much in legal society, and picked up the technical phraseology and legal slang of the day. The dramatist and his father, like most of their contemporaries, were prone to litigation, and not infrequently figured in suits in the local Court of Record at Stratford-upon-Avon. The dramatist"s purchases of houses and land in his later life must also have brought him into professional contact with lawyers and legal procedure.
Many of Shakespeare"s allusions such as those referring to fines and recoveries, which seemed to Lord Campbell to infer profound knowledge of the abstruse law of real property related to picturesque and grotesque proceedings which were in Shakespeare"s time of constant occurrence in the Westminster Courts, and only seem profound and difficult to lawyers of the nineteenth and twentieth centuries because they have become archaic and unfamiliar. [COMMENT 2] Possibly their solemn absurdities tickled Shakespeare"s sense of humour.
In addition to these considerations it must not be forgotten that the connotation of many words once in general use has, like the forensic wig, survived only in the Courts. For instance, the word "determine", in the sense of "put an end to", is now only used by lawyers, whereas in Shakespeare"s time it was in common use. Thus in the Sonnets xiii Shakespeare writes as a lawyer might still write: So should that beauty which you hold in lease Find no determination.
But, on the other hand, in Antony and Cleopatra IV. iv. 36-7 we find That he and Cæsar might Determine this great war in single fight! where the word is used in precisely the same sense without any legal allusion whatever. [A. REFUTED] The following passage in Love"s Labour"s Lost II. i. 320-1 no doubt seems at first sight marvellously technical: Boyet. So you grant pasture for me. Maria. Not so, gentle beast My lips are no common, though several they be.
This alludes to the distinction, familiar to real property lawyers, between a right to take something from another"s land e. g. fish, game, or pasture to the exclusion of all others in which case it is called a "several", i. e. severed right, and a similar right exercisable in common with others in which case it is called a "profit in common". Maria doubtless meant that her lips were not to be enjoyed in common, though they were intended for the several i. e. xclusive use of one favoured man. That Shakespeare borrowed this "quaint conceit" from one of his legal friends is all the more probable because the allusion is not technically accurate, for it attributes the "several" and "common" to the lips rather than to the right to kiss them, and uses the word "though" incorrectly, in place of "but", which rather suggests that he considered common rights to be in some way connected with, instead of opposed to, several ones. B. REFUTED]
However, whether Shakespeare received any legal training or not, his numerous legal allusions and those of other contemporary English authors afford interesting illustrations of the English law of the sixteenth and seventeenth centuries. The broad general principles of the Common Law with regard to civil matters still remain unchanged. The principal alterations have taken place rather in the region of criminal than of private law, and in the procedure and tone of thought of the Courts.
What we call "Equity", too considered as a scheme of law founded on definite principles, is mainly the growth of the later seventeenth and subsequent centuries, and in Shakespeare"s time the Court of Chancery was almost as unfettered by precedent as the typical Cadi under the Palm Tree. Of chief pertinence here are those branches of law and procedure with regard to which there is a strong contrast between past and present, together with the life of the Inns of Court in Elizabethan times.
At the end of the sixteenth century the Superior Courts were much the same as they were in the latter half of the nineteenth, when, by the Judicature Acts 1873 and 1875 they were consolidated into one Supreme Court of Judicature. The High Court of Chancery was there, the Queen"s Bench was there, so were the Courts of Exchequer and Common Pleas. The Judges also from time to time went on circuit, as they still do, and with much the same pomp and circumstance; Justices of the Peace then, as now, held petty and quarter sessions; and in the latter they had power of life and death.
But there was also another powerful Court, hated and feared, owning no obedience to law or precedent, which has long since ceased to exist, viz. the Star Chamber. There has been much speculation as to the origin of the Star Chamber, but the best opinion seems to be that it was a remnant o£ the judicial side of the King"s Council, of which the other Courts were offshoots. All the King"s Courts were, and indeed still are, supposed to be emanations of the King himself as the fountain of justice; the judges being merely his delegates.
This theory is alluded to both in Measure for Measure I. i. 43, where the Duke says to Angelo: In our remove be thou at full ourself, and also in 2 Henry IV V. ii. 73-9, where Chief Justice Gascoyne says: I then did use the person of your father; The image of his power lay then in me And, in the administration of his law Whiles I was busy for the commonwealth, Your highness pleased to forget my place, The majesty and power of law and justice, The image of the King whom I presented.
In virtue of the King"s delegated justice, suitors were entitled to appeal to the King in Parliament whence the judicial duties of the House of Lords, or to the King in Council now represented by the Judicial Committee of the Privy Council, or to the Keeper of the King"s conscience the Lord Chancellor, when the ordinary law afforded no adequate relief.
Apparently on similar grounds there appears to have been reserved to the Council a jurisdiction over criminal or quasi-criminal matters for which the ordinary law made no adequate provision, and this jurisdiction was exercised in the Star Chamber. Its particular function was the correction of such offences as riots, slanders, and libels, or even criticisms on magistrates or great officers, cozenage or embracery i. e. corrupting or menacing juries, bribery of officers of justice, and the like, against which the Common Law then afforded no adequate protection.
It was a kind of criminal Court of Equity, limited by no settled rules, and exercising jurisdiction at the discretion of the Executive in the alleged interests of good government, much as in days not very remote the Russian Government imprisoned, transported, or executed political offenders by "administrative order" without trial. In theory it supplemented the shortcomings of the Common Law in criminal matters, just as the Court of Chancery was supposed to supplement or control it in civil proceedings.
In point of fact, however, it became the servant of a tyrannical Executive. Shakespeare was well aware as probably were most of his contemporaries of its peculiar jurisdiction. Thus we find in The Merry Wives I. i. 1-7: Shallow. Sir Hugh, persuade me not; I will make a Star-chamber matter of it; if he were twenty Sir John Falstaffs he shall not abuse Robert Shallow, esquire. Slender. In the county of Gloster, justice of the peace, and coram. Shallow.
Ay, cousin Slender, and cust-alorum. And again, later on I. i. 35: Shallow. The Council shall hear it; it is a riot. Other contemporary authors also frequently refer to the Star Chamber. Thus Ben Jonson, in The Magnetic Lady III. iii: Sir, you forget There is a Court above, of the Star Chamber, To punish routs and riots. And again, Barry, in Ram Alley: I will Star Chamber you all for cozenage. The point in all these passages is the peculiar jurisdiction of the Court.
The punishments inflicted by the Star Chamber varied from heavy fines to the pillory, ear-cropping, and branding as in Prynne"s case or whipping, but not death. They became, however, outrageously and increasingly severe and out of all proportion to the offence; and the Court"s unpopularity was probably owing partly to this and partly to its practice of interrogating the accused and hearing witnesses in camera. In his learned and interesting work on English Legal Institutions Dr. Carter gives several amazing instances of the severity of this Court.
Thus, Sir John Hollis and Sir John Wentworth were in 1615 prosecuted by Bacon, then Attorney-General, for traducing public justice. Their offence was that they went to the execution of a man named Weston, who was hanged for poisoning Sir Thomas Overbury. Wentworth merely asked Weston if he really did it; and Hollis desired him to discharge his conscience by confessing and so "satisfying the world". Hollis had also said when the verdict was given that if he had been on the jury he should have had his doubts.
For these mild observations Sir John Hollis was fined £1,000 and Wentworth 1,000 marks £666, and each of them got a year"s imprisonment in the Tower. In another case, a London merchant was fined £2,000 and imprisoned for six years for saying that the merchants are "in no part of the world so screwed and wrung as in England, and that they had more encouragement in Turkey". The case of Prynne in 1634 completed these outrageous and vindictive punishments.
For political libel he was disbarred, deprived of his degrees, ordered to be placed twice in the pillory, to have one ear cut off on each occasion, to be fined £5,000, and to be perpetually imprisoned without books, pen, ink, or paper. After this it is a relief to read the sentence on a fanatic who, objecting to pork on religious grounds, was ordered by the Star Chamber to be imprisoned and fed on nothing but pig"s flesh. It is not surprising that the Star Chamber was destroyed by the Long Parliament in 1641.
The Star Chamber gained additional odium from its use of torture, which was quite illegal in the other English Courts. So late as 1614, a Somerset clergyman, Edmond Peacham, was interrogated on the rack before the Star Chamber in the presence of Coke, then Attorney-General. Another Court that existed in Shakespeare"s time was the Court of Wards and Liveries, created by two statutes of Henry VIII to deal with the estates of infant wards of the King, and also apparently with lunatics and idiots.
This Court was presided over by the Lord Treasurer, who had, as his associates, the two Chief Justices, the Chief Baron, the King"s Serjeant, and divers Surveyors and an Attorney of the Court. The Lord of a vassal who held by military tenure was guardian of the vassal"s orphan, infant heir, or heiress without any liability to account for the profits of the infant"s lands until, in the case of males, the ward attained twenty-one, or in the case of females, sixteen years. On attaining these ages the infant could "sue out livery" on payment of half a year"s profits.
During the infancy the guardian had the right of marrying the ward to any one he pleased of equal rank. Wardship had become odious in Shakespeare"s time, and was abolished along with military tenures by 12 Charles II, c. 24. There is no specific mention of this Court in Shakespeare"s works, but he alludes although incorrectly to the right of the Lord as guardian in All"s Well that Ends Well, where the King of France insists upon his highborn ward Bertram marrying Helena, a poor physician"s daughter, who was of inferior rank to him. C. REFUTED] The King parades all his male wards and says: Fair maid, send forth shine eyes: this youthful parcel Of noble bachelors stand at my bestowing; II. iii. 58-9 and when Bertram, whom Helena chooses, protests, the King informs him peremptorily that It is in us to plant thine honour where We please to have it grow. Check thy contempt: Obey our will, which travails in thy good. ibid. 163-5 Other writers of the time also mention this right.
For instance, Wilkins, in his Miseries of Inforst Marriage, published in 1607, writes: You are his Ward; being so, the law intends, He is to have your duty, and in his rule Is both your marriage, and your heritage; If you rebel "gainst these injunctions, The penalty takes hold on you; which for himself He straight thus prosecutes; he wastes your land, Weds you where he thinks fit, Sir. So in Ben Jonson"s Bartholomew Fair III. v: Grace. Now he will marry me to his wife"s brother, this wise gentleman that you see; or else I must pay the value o" my land. Quar. "Slid, is there no device of disparagement or so? n allusion to the condition that the spouse must be of equal rank with the ward, which Shakespeare had ignored. The suing of livery by the ward is frequently mentioned by Elizabethan and Jacobean writers.
Thus: Our little Cupid hath sued livery And is no more in his Minority. Donne, Ecl. , 1613 In Richard II the Duke of York, referring to the consequences of seizing upon the rights of "banished Hereford", says: If you… Call in the letters-patent that he hath By his attorneys-general to sue His livery, and deny his offer"d homage, You pluck a thousand dangers on your head. Rich. II, II. . 202-6 And again in the same play Bolingbroke is made to say: I am denied to sue my livery here. II. iii. 129 Si parva licet componere magnis, another ancient Court still existing in Shakespeare"s day has long become obsolete, viz. the Court Leet. It was the predecessor of the modern Police Court, and like it could present for trial or indict for all crimes, and could summarily punish trivial ones. It was shorn of much of its jurisdiction by a statute of Edward IV, and is now obsolete, except in some few manors, where it survives rather as an ancient ceremonial than as a practical court of law.
Shakespeare mentions it in Othello III. iii. 140 thus: Keep leets and law days, and in session sit; and again in The Taming of the Shrew Ind. ii. 87-89: Yet would you say ye were beaten out of door, And rail upon the hostess of the house, And say you would present her at the leet, Because she brought stone jugs and no seal"d quarts. But probably even in Shakespeare"s time the Leet was but little used. Another obsolete Court of record which flourished in Shakespeare"s time was that which bore the strange name of the Court of Pie-Poudres.
It and the Court of the Clerk of the Market were incident to every market. The one decided all civil disputes arising in the market but not in any preceding one, the owner"s steward acting as Judge, and the other dealt with criminal matters, mainly questions of false weights and measures. The Court of Pie-Poudres is said by Lord Coke to have gained its name from its speedy justice, which was dispensed as fast as dust could fall from the foot. Blackstone, however, gives it a more prosaic derivation from pied puldreaux, a pedlar.
This picturesque Court is not mentioned by Shakespeare, but Ben Jonson speaks of it in Bartholomew Fair II. i, where one of the characters says, "In whose Courts of Pie-poudres I have had the honour during the three days sometimes to sit as Judge". Other Courts there were not mentioned by Shakespeare. The Court of Requests not to be confounded with the local Courts of the same name which lasted down to our times and were replaced by the modern County Courts was a kind of relief Court of Chancery, specially devoted to dispensing Equity to poor suitors.
It was in the Court of Requests that one Stephen Bellott in Easter term 1612 sued his father-in-law, Christopher Montjoy, a tiremaker, of Silver Street in the city of London, for the fulfilment of certain promises alleged to be made on the plaintiff"s marriage with defendant"s daughter eight years before. Shakespeare had lodged in Montjoy"s house when the plaintiff Bellott, who had been Montjoy"s apprentice, proposed marriage to Montjoy"s daughter. The dramatist was accordingly one of Bellott"s witnesses, and his signed depositions are in the Public Record Office.
In the result the Court remitted the dispute to the French Huguenot Church in Threadneedle Street, of which both parties to the suit were members, and the consistory upheld Bellott"s plaint, severely reprimanding Montjoy and suspending him from membership of the church. In 1598 the Common Law Courts refused to recognise the authority of the Court of Requests, but it lingered on until the Civil War, when, its legal machinery being lost, it died a natural death. REFUTATIONS ANDS COMMENTS COMMENT 1: This statement is an extraordinary way to open a section on Law.
A close reading of what follows will show that Underhill does an extremely poor job of supporting his opening statement, which must be taken as a main theme of the essay, given its prominent placement. Notice as you read how often Underhill explores an aspect of Elizabethan law, sometimes at great length, only to finish with the statement like “But it is not mentioned by Shakespeare. ” Given the wealth of legal allusions in Shakespeare, and that the purpose of the book is to illuminate “Shakespeare"s” England, one would think that Underhill would focus on the many occasions when Shakespeare does allude to law.
But it soon becomes clear that he has an agenda to give the distinct impression that Shakespeare either knew little law or made obvious errors. Whenever Underhill attempts to give an actual example of Shakespeare"s errors rather than a mere claim, we will refute him. Indeed, we will show that in some cases he was quite aware that a clear refutation had already been made but that he chose to ignore it. back COMMENT 2: Underhill offers no supporting evidence, but George Greenwood refutes him in a rather long passage his 1920 book Shakespeare"s Law pp. 9-33, which I will post in its entirety later this year. back A. REFUTED: What Underhill is trying to say here is that Shakespeare uses the word “determine” in a non-legal context, as if this proves that Shakespeare"s use of the word has no bearing on his legal knowledge. But the opposite is true. The point is well-made by Lord Penzance: “As manifested in the plays, this legal knowledge and learning had therefore a special character which places it on a wholly different footing from the rest of the multifarious knowledge which is exhibited in page after page of the plays.
At every turn and point at which the author required a metaphor, simile, or illustration, his mind ever turned first to the law. He seems almost to have thought in legal phrases, the commonest of legal expressions were ever at the end of his pen in description or illustration. ” In other words, it is precisely in those examples where Shakespeare aptly uses a legal term as a metaphor, simile, or illustration in a non-legal context, that he demonstrates his deep familiarity with, and integrated understanding of, the law. ack B. REFUTED: As Peter R. Moore points out in Recent Developments in the case for Oxford as Shakespeare, Shakespeare was, of course, playing on the two meanings of the word “several”, as many editions of the play will explain. Also, every Shakespeare concordance reveals that Shakespeare knew both meanings of the word. Here Underhill betrays a particular lack of appreciation for Shakespeare"s propensity to play with words.
Since it seems highly improbable that Underhill is unaware of the profound level of wordplay in Shakespeare in particular and Elizabethan society in general, he can properly be exposed here for force-fitting his example into his argument, to the detriment of his credibility. Cushman K. Davis points out in passage No. 47 of The Law and Shakespeare that “grant” as used by Boyet is also a legal term meaning “at common law a conveyance of incorporeal things”. Co. Litt. 9 His conclusion: “Without a thorough knowledge of the legal terms employed, Maria"s repartee is absolutely meaningless. 93-94 You will note in Underhill"s bibliography that he lists both Davis"s book and Lord Campbell"s. Therefore, he was familar with this argument, yet chose to ignore it without any real attempt to refute it. back C. REFUTED:
As succintly pointed out by George Greenwood in his 1920 book Shakespeare"s Law, Underhill is guilty of either ignoring or overlooking a material passage in this scene where the King of France himself reveals his ability to enoble a common subject: King: "Tis only title thou disdain"st in her, the which I can build up . . If thou canst like this creature as a maid I can create the rest: virture and she Is her dower; honour and wealth from me. Act II Sc. 3, italics added Greenwood continues: "But even if it had been otherwise; if Shakespeare had made a King of France threaten a ward with the results of his displeasure should he refuse to marry a lady whom the King desired him to marry although of inferior rank, what cogency could reasonably be attached to such an incident in a drama, as evidence of ignorance of law on the part of the dramatist?
Very little indeed as it appears to me. " p. 29 back LEGAL PROCEDURE Although the Courts of Chancery, King"s Bench, Common Pleas, and Exchequer, survived to the latter part of the nineteenth century, when, by the Judicature Acts, The Courts that were manifold dwindled To divers divisions of one, yet the contrast between the procedure and the tone of those Courts in Shakespeare"s day and ours is profound.
Their procedure and atmosphere were pedantic, unyielding, even puerile. The respect paid to forms and fictions, and the verbal quibbles solemnly discussed without regard to the obvious reality of things, suggest to a modern mind that the whole administration of justice was regarded as an elaborate intellectual game in the course of which justice itself was entirely lost sight of.
The very language of the profession was a mysterious jargon compounded of Latin, French, and English, calculated to prevent any but the initiated from having the least notion of what was meant. For instance, we read of refined but futile distinctions between "writs of entry sur disseisin in the per, in the post, in the per and cui, and in the quibus", distinctions which we may be quite sure had but little relation to "the merits".
The use of French and Latin in the actual proceedings had, it is true, long been forbidden by statute; nevertheless, the Records were kept in Latin, and the Reports still continued to be written in Norman French, much as physicians still veil their prescriptions in Latin. But it had become a doggerel language, and some of the reports of that date furnish amusing instances of the unfamiliarity of the reporter with the tongue as an instrument of thought.
The Law reporters, who were a highly conservative class of men, strongly opposed the substitution of English. Thomas Style, in the Preface to his Reports in the year 1658, excuses himself for writing them in English in the following quaint words: I have been always and yet am of opinion, that that part of the Common Law which is in English hath only occasioned the making of unquiet spirits contentiously knowing, and more apt to offend others than to defend themselves.
I have done it in obedience to authority and to stop the mouths of such of this English age, who, though they be confessedly different in their minds and judgements, as the builders of Babel were in their language, yet do think it vain if not impious to speak or understand more than their own mother tongue. Even now a few words and phrases survive in common use, such as "semble", "aliter", "quia timet", "in fieri", "cestui que trust", "alibi", &c. and all the old prerogative writs retain their Latin names, e. g. "mandamus", "certiorari", and "quo warranto". Trial by battle still survived, and was occasionally resorted to with regard to the title to land, or in cases of felony, or in the Court of Chivalry. But it was evidently dying out, as there seems to be no recorded instance of it between 13th Elizabeth and 1639.
It remained, however, part of our law so late as 1819, when it was abolished by 59 George III, c. 6. But perhaps the most interesting item of procedure of those days was the different manner in which an action for the same cause had to be commenced according as it was in the King"s Bench, the Common Pleas, or the Exchequer. The Common Pleas was from the time of Magna Charta settled at Westminster to do justice between subject and subject. For some time its jurisdiction was limited to certain fixed causes of action, for each of which a specific writ was issued.
If the facts of a case could not be brought within one of these writs, there was no remedy. This of course led to frequent denials of justice, and by 1 Edward I, c. 24, a new writ was ordered to be issued in any case which could not be met by the old fixed forms. Actions commenced by these new writs became known as actions of "trespass on the case" or, shortly, "actions on the case", because the special facts of each case were stated in a writ framed as near as possible by analogy to the old writ of trespass.
There was an immense amount of "lean and wasteful learning" expended on the distinction between trespass and trespass on the case, which lasted down to our own time, and even now fine distinctions are sometimes traceable to the question whether a wrong would formerly have been remediable by "trespass" or "case". The King"s Bench, however, had originally no general jurisdiction as between subject and subject, but only between King and subject.
As, however, the judges in those early days were paid by suitors" fees, they had every inducement to widen their jurisdiction, and this they did in a most ingenious but disingenuous way. Having original jurisdiction over all trespasses committed in the county in which the Court was held, as being breaches of the King"s peace, the Judges invented the theory that once a man got within the jurisdiction for trespass committed in that county the Court could also deal with all other wrongs which he had committed against any of the King"s subjects.
It accordingly became the regular procedure in the King"s Bench to issue a writ directing the Sheriff of Middlesex to arrest the defendant to answer a fictitious trespass committed there, and also to answer whatever the true cause of action might be. This writ was called a Bill of Middlesex, and the clause stating the true cause of action was called the ac etiam clause. If, as frequently happened, the defendant was not in Middlesex, the Sheriff made return that he was not to be found there.
Thereupon a fresh writ, called a latitat, was issued to the Sheriff of the County where the defendant resided, setting forth the issue of the Bill of Middlesex, and stating that "it is sufficiently attested that the aforesaid William lurks latitat and runs about in your county", and the writ then commanded the Sheriff to arrest him. It thus came about that civil actions in the King"s Bench were commenced by Bill of Middlesex, followed, if necessary, by a writ of latitat, and in either case by the arrest of the defendant, who had to give bail for his appearance.
This roundabout process, strange as it may seem, lasted for centuries, until it was abolished by the Common Law Procedure Act, 1854. It is frequently alluded to by Shakespeare and his contemporaries. Thus in The Comedy of Errors IV. ii. 41-3: Adriana. Why, man, what is the matter ? Dromio of S. I do not know the matter: he is "rested on the case. Adriana. What, is he arrested ? tell me at whose suit. And again, in Webster"s Cure for a Cuckold IV. i: Pettifog. The defendant was arrested first by latitat, in an action for trespass. Compass.
And a lawyer told me it should have been an action of the case. And in Jonson"s Magnetic Lady V. iii: Sue him at Common Law; Arrest him on an action of choke-bail, Five hundred thousand pound; it will affright him And all his sureties. And in Massinger"s Fatal Dowry I. ii: He was arrested, and for want of bail Imprisoned at their suit. The Court of Exchequer, whose jurisdiction was originally confined to cases affecting the revenue, usurped jurisdiction in civil actions by a similar fiction, viz. that by reason of the defendant"s wrongful conduct the plaintiff was less able to pay his taxes.
This was called a writ of quo minus, and also lasted down to the middle of the last century. This usurpation is all the more singular as, down to the time of Elizabeth, the Exchequer judges were not trained lawyers, but promoted clerks, and the Court was scarcely accounted a superior Court, nor were its judges accorded equality with those of the King"s Bench and Common Pleas. In Elizabeth"s reign, however, Serjeant Shute was appointed a Baron of the Exchequer with the same rank as the judges of the other Courts, and thenceforward serjeants only were appointed with the like rank.
This make-believe tone of the Courts was carried into the consideration of questions of fact or intention, the most puerile distinctions being made where no sane person could have had the least doubt of the truth. It is impossible, for instance, to imagine the businesslike judges of to-day taking such extraordinarily fine, not to say childish, distinctions as the following: It was held slander to say of an Attorney that "he hath no more law than Master Cheyney"s Bull even though Master Cheyney hath no Bull, for in that case the scandal is greater" 1 Siderfin"s Reports, 327.
On the other hand, to say that "he hath as much law as a monkey" was not slanderous, because "he hath as much law and more also" 1 March, pl. 93; 1 Rolle, Ab. 58. It is scarcely surprising after this to find the sapient reporter in one case thoughtfully adding "quaere whether it be not actionable to say an attorney hath no more law than the man in the moon" 1 Siderfin, 424. This topsy-turvy tone of mind is also apparent in the judgements in the leading case of Manby v. Scott, decided in 1602, where Wyndham J. discussing the question whether a husband should be bound by his wife"s contracts, thus describes the fancied dangers: The husband will be accounted the common enemy, and the mercer and the gallant will unite with the wife, and they will combine their strength against the husband. Wives will be their own carvers and, like hawks, will fly abroad and find their own prey 1 Siderfin, 109. Shakespeare parodied the quibbling prevarications which infested all legal argument when he made the First Gravedigger in Hamlet V. i. 15 seq. discourse on the legal meaning of suicide: First Clown.
Here lies the water: good; here stands the man: good; if the man go to this water, and drown himself, it is, will he, nill he, he goes; mark you that? but if the water come to him, and drown him, he drowns not himself: argal, he that is not guilty of his own death shortens not his own life Second Clown. But is this law? First Clown. Ay, marry, is "t; crowner"s quest law. There is little doubt that Shakespeare here had in mind the argument concerning the suicide by drowning of Sir James Hales, which was used in the case Hales v.
Petite in 1561, and is fully reported in Plowden"s Reports: "As Sir James Hales, being alive, caused Sir James Hales to die, therefore the act of the living man was the death of the dead man, for which the living man must be punished. " The legal argument of the Gravedigger is no more obvious a "reductio ad absurdum". The technicalities of the written pleadings, too, were monstrous. As an instance one may take the report of a case decided in 1651. [Usley"s Case Clayton"s Reports, 50. Trespass. Plaintiff declares that the defendant did break his close and eat his grass etc cum averiis suis to wit oxen sheep hogs avibus anglice turkies. And the judge did hold that turkies are not comprised within the general word averia which is an old law word, and these fowls came but lately into England. And upon this it was directed to sever the damages; for otherwise, if the damages be joyntly given, and it be ill for this of the turkies, for the reason above-said, it will overthrow all the verdict.
With justice stifled by these formal futilities it is not surprising to find the Court of Chancery stepping in as a Court of Equity to set matters right. It could not interfere directly by reversing the decisions of the Common Law Courts, but it effected the same object by granting an injunction prohibiting a plaintiff who had obtained judgement from proceeding to enforce it, on pain of imprisonment for contempt. This gave great offence to the Common Law judges, and the granting of these injunctions by Wolsey was one of the chief charges against him. In Shakespeare"s time, however, this battle was fought to a finish.
At first the Common Law Courts had the better of it, for by an Act of 27 Elizabeth it was made a praemunire to apply to other jurisdictions to impeach or impede the execution of judgements given in the King"s Courts. The Chancellors seem to have ignored this; but the matter came to a head in 1616 in the historical encounter between Lord Chief Justice Coke and Lord Chancellor Ellesmere, the latter of whom issued an injunction perpetually restraining a plaintiff who had obtained a judgement in the King"s Bench under circumstances of gross fraud.
Thereupon the King"s Bench preferred indictments against everybody concerned — counsel, solicitors, and suitors — for a praemunire for daring to question in the Chancery a judgement of the King"s Bench. The matter was so serious that the King himself stepped in and supported the Chancellor, and thenceforth the power of the Court of Chancery to issue injunctions against proceedings at Common Law was never questioned until it was finally abolished by the Judicature Act, 1873, by which every branch of the High Court was enabled to give equitable as well as legal relief.
Curiously enough no allusion to this distinctive process of the old Court of Chancery occurs in Shakespeare"s writings. [COMMENT 3] Perhaps it was too burning a question to be safely touched on. Donne, however, refers to it in his Second Satire: I have been In love e"er since tricesimo of the Queen. Continual claims I have made, injunctions got To stay my rivals suit, that he should not Proceed. And Jonson, in An Execration upon Vulcan, says: Lies there no writ out of the Chancery Against this Vulcan ? No injunction, No order, no decree ?
Though we be gone At Common Law, methinks in his despite A Court of Equity should do us right. The foundation of the Chancery jurisdiction was in personam, and the peculiarity of its procedure was that it got at the truth by putting searching interrogatories to the defendant himself, which he had to answer on oath, and by clapping him in prison if he disobeyed the Chancellor"s orders. This power of interrogating a defendant which was quite contrary to the spirit of the Common Law became known as "scraping the conscience", and was a most effective, although often a costly and dilatory, process.
Shakespeare refers to interrogatories of this kind in The Merchant of Venice V. i. 300-3: Let it be so: the first interrogatory That my Nerissa shall be sworn on is, Whether till the next night she had rather stay Or go to bed now, being two hours of day. The main Chancery work of Elizabethan days was founded on fraud or on the unconscientious enforcement of strict legal rights. The law now administered by the Chancery Division was practically non-existent. The law of trusts, for instance, as we know it, was the work of Lord Chancellor Nottingham 1673-82.
But for the following passage, Shakespeare gives no hint that he knew of the existence of Courts of Equity as distinguished from Courts of Law [D. REFUTED]: Thou robed man of justice, take thy place; And thou, his yoke-fellow of equity, Bench by his side. Lear III. vi. 39-41 Of the aspect of the Law Courts in Shakespeare"s day, much information survives. First, then, with regard to the building in which they were held, the Common Law Courts and the Court of Chancery were not, as now, held in separate chambers, but in different parts of Westminster Hall, and this practice continued till late in the reign of the Georges. An old print, showing the interior of the Hall with several of the Courts actually sitting, is reproduced in the late Mr. Inderwick"s interesting little book, The King"s Peace. ] Next, as to the costume of the judges and counsel. It is not perhaps generally known that the present wig and sombre black gown date only from the funeral of Queen Anne. As the late Chief Baron Pollock is said to have remarked, the Bar then went into mourning, and has never gone out of it again.
In Elizabeth"s time the costumes were much more picturesque. Counsel below the rank of serjeant wore no head-gear. The ancient order of Serjeants at Law, which was abolished some quarter of a century ago, answered in the sixteenth century to the present K. C. "s. They wore a head-dress of white taffeta somewhat similar in shape to the ordinary barrister"s wig, called "the coif ", the origin of which is lost in extreme antiquity.
Over the coif when not actually engaged in a cause the serjeant, and apparently the judge when actually sitting on the bench, usually wore a black velvet or silk skull-cap of the same shape, but slightly smaller, so as to leave the white coif showing as an edging or border. When, after another century, wigs became general, the judges and other serjeants had small round holes cut in the top of their wigs, through which the coif was supposed to be seen; but in reality there was a small black patch edged with white inserted to cover the hole and suggest the coif.
With regard to robes, those of the judges were not very different from those used by the King"s Bench judges at the present day, the colour varying according to the days of the calendar from scarlet to violet, and the lining according to the season from silk to minever. The serjeants" robes were similar, viz. a robe somewhat like a modern dressing-gown, with a small cape just covering the shoulders, over which was a hood, similar to but not so full or long as the ordinary academic hood, and in front "two white labels" now the white bands or tabs worn by all counsel.
The colour of the robes seems to have been left much to fancy, but in Shakespeare"s time, and for some centuries before, they were parti-coloured — the right-hand side one colour, and the left another. There is in the Inner Temple Library a very interesting illumination of the four Courts in the time of Henry VI, showing the serjeants in parti-coloured robes of blue and green, with white coifs. In the painting of the Court of Wards and Liveries, done in the reign of Elizabeth, and now the property of the Duke of Richmond and Gordon at Goodwood, the serjeants who are pleading wear parti-coloured robes.
In an address delivered to some newly-created serjeants in the thirty-sixth year of Elizabeth"s reign the Lord Chief Justice said, "by the parti-coloured garments being both of deep colours, and such as the judges themselves in ancient times used for so we receive it by tradition, is signified soundness and depth of judgement, an ability to discerne of causes, what colour soever be cast over them, and under or with what vail or shadow soever they be disguised".
Fortescue, writing in the fifteenth century, describes the serjeant"s robe as parti-coloured, and differentiates it from that of a judge, partly by that fact, and also in his quaint language by the fact that the judge"s cape is furred with minever, "whereas the serjeant"s is ever furred with lamb". The Elizabethan costume of counsel who were not serjeants is extremely obscure.
That they wore a gown of some sort seems certain from the records of the four Inns of Court, the Benchers of which were very particular as to the wearing of gowns, even in ordinary life. Moreover, Webster, writing in the early part of the seventeenth century, says, "My forehead has more crumples in it than the back part of a Counsellor"s gown"; [Westward How, II. i. ] which is suggestive of the numerous pleats in the present gown of a junior barrister.
What the colour was seems very questionable, but it was probably sombre, as the wearing of gowns of a "sad colour" by members of the Bar was enjoined by Philip and Mary; and, by an order of the judges in the time of Elizabeth, no fellow of any of the Inns of Court was to go into the city or suburbs" otherwise than in his gown, according to the ancient usage of the gentlemen of. the Inns of Court". By the same order, the wearing of "swords and bucklers and great ruffs and silk and fur" was forbidden.
However, if the Bar has changed its dress, it still retains that old spirit of comradeship which so annoyed Mr. Pickwick, and which Shakespeare has immortalized in The Taming of the Shrew I. ii. 281-2: And do as adversaries do in law, Strive mightily, but eat and drink as friends. It will be seen from the above sketch that the appearance of the Courts in Shakespeare"s day must have differed widely from that which they present nowadays.
To realize the full extent of the change one has but to go into Westminster Hall, and divide it up mentally into three open Courts, somewhat like the stalls of a modern fancy fair, and people them with judges in scarlet or purple, with the black and white coif, serjeants in parti-coloured robes of blue and green pleading in their white coifs, and junior counsel bareheaded in sad-coloured robes; while lookers-on, in all the varied costumes in which that age delighted, wandered from Court to Court.
REFUTATIONS ANDS COMMENTS COMMENT 3: This statement is a rather curious one for Underhill to offer if that"s what he"s doing in support of his proposition that Shakespeare lacked a profound understanding of law. back D. REFUTED: This statement by Underhill reveals a remarkable willingness to commit an unscholarly logical fallacy, that of Arguing from the End “I already know the result, so I will interpret the evidence accordingly. Underhill attempts to transform supportive evidence into contrary evidence by implying strongly that a single instance where Shakespeare demonstrates a knowledge of the distinguished existence of the Courts of Equity reveals his lack of such knowledge. Peter R. Moore succinctly refutes Underhill in Recent Developments in the case for Oxford as Shakespeare by pointing out that “We might as well say that, but for one remark in 1 Henry IV I. iii. 60-62, we have no idea that Shakespeare knew that saltpeter is used in the making of gunpowder. Moore further reveals that the probable reason why Underhill makes such a statement and which also probably explains the general tone of the entire essay is because in 1916 Baconian writings were popular, and Underhill was attempting to deflate the notion that Francis Bacon authored the plays by indirectly hinting that since Bacon was a specialist in equity and had become Lord Chancellor — the head of equity — that if he were the author, references to equity and the Courts of Equity would be, in fact, more likely. ack CRIMINAL LAW With regard to substantive law, the greatest changes that have been made are in the department of criminal law. From the beginning of Elizabeth"s reign to the end of the seventeenth century high treason and all felonies, except petty larceny i. e. the theft of goods under the value of twelve pence, were punishable with death, subject to "benefit of clergy", where it applied. In the time of Shakespeare, statutory felonies had become somewhat numerous, and included all thefts of goods or money exceeding twelve pence in value, and the death penalty was carried out in an appalling number of cases.
It has been calculated that at the end of the sixteenth century over 800 persons were annually hanged in England, the population of which at that date scarcely reached five millions. At one Assize for Exeter in 1598, 134 prisoners were indicted. Of these 17 were condemned to the gallows, co were ordered to be flogged, 15 were pardoned, and 11 claimed benefit of clergy, and were branded and set free. Quite half of the persons condemned to death in England were tried before magistrates at Quarter Sessions without the attendance of a judge.
This wholesale slaughter even moved Coke who was no sentimentalist to write at the end of his third Institute: "What a lamentable case it is to see so many Christian men and women strangled on that cursed tree of the gallows; insomuch as if in a large field a man might see together all the Christians that, but in one year, throughout England, came to that untimely and ignominious death, if there were any spark of grace or charity in him, it would make his heart bleed for pity and compassion. quot; Treason was, of course, the highest of all crimes, and was punishable with hanging, drawing, and quartering, the barbarous process to which Shakespeare makes familiar reference in King John, where Philip the Bastard, mocking the love-lorn Dauphin, says: Drawn in the flattering table of her eye! Hang"d in the frowning wrinkle of her browl And quarter"d in her heart ! he cloth espy Himself love"s traitor: this is pity now, That hang"d and drawn and quarter"d, there should be In such a love so vile a lout as he.
II. i. 504-9 By a curious begging of the question the unfortunate person who was accused of treason was not even allowed the assistance of counsel. Persons accused of even ordinary felonies were not allowed counsel to address the jury on their behalf, but merely to examine and cross-examine witnesses and argue points of law, until the early part of the nineteenth century, when, in spite of strong protests from several of the Common Law judges, the privilege was granted.
In cases of high treason or petty treason by women i. e. murder, or conniving at the murder, of a husband or master the sentence was death by burning, which Blackstone apparently without conscious irony attributes to the regard of our ancestors "for the decency due to the sex" 4 Bl. Comm. 93. The same terrible fate was awarded freely to the unfortunate women who were found guilty of the imaginary offence of witchcraft, and occasionally notwithstanding the statute 1 Elizabeth, c. , which repealed all the statutes relating to heresy the writ de comburendo heretico was issued probably illegally for the burning of a "contumacious" or "relapsed" heretic. Two Anabaptists, for instance, were sent to the fire in 17 Elizabeth, and two Arians in 9 James I. Shakespeare refers to the burning of heretics in several passages. For instance: When the devout religion of mine eye Maintains such falsehood, then turn tears to fires! And these, who often drown"d could never die, Transparent heretics, be burnt for liars! Rom. & Jul. I. ii. 3-6 And again in King Lear III. ii. 84 the Fool predicts the confusion of England when, among other follies, no heretics are burned.
Probably Shakespeare, like the rest of his contemporaries, had a firm belief in the reality of witchcraft; for at the trial of the Suffolk witches in 1664 nearly fifty years after Shakespeare"s death we find the presiding judge, Sir Matthew Hale, directing the jury that "it was undoubted that there were such creatures as witches, for the Scripture affirmed it, and the wisdom of nations had provided laws against such persons" State Trials, vi. 47. In 2 Henry VI II. iii. 5-7 the King is made to say: You four, from hence to prison back again; From thence, unto the place of execution: The witch in Smithfield shall be burn"d to ashes. Statutes against witchcraft were passed in the reigns of Henry VIII and Elizabeth. James I wrote a tract on it, and nearly all the writers and playwrights of the period are full of allusions to it.
Other barbarous punishments were also common for misdemeanours, such as amputation of the hand, the stump being thrust into boiling pitch or tar when the mutilation was not intended to be merely preliminary to the execution of a death-sentence, not to speak of the pillory for political offenders, the ducking-stool for women with too free a tongue, and whipping "at the cart"s tail" for both sexes. Here is an "impressionist" picture of the fierce tone of the criminal courts of the seventeenth century set in a grotesque frame of the barbarous law French of the day. Note per Treby, C. J. , on the margin of his copy of Dyer"s Reports, quoted in Curiosities of the Law Reporters. ] Richardson C. J. de C. B. , at Salisbury in summer 1631 fuit assault per prisoner condemne pur felony, que puis son condemnation ject un brickbat a le dit justice que narrowly mist. Et pur ceo immediately fuit indictment drawn pur Noy enver le prisoner, et son dexter menus ampute et fixe al gibbet, sur que loy mesme immediatement hange in presence de Court.
One peculiar brutality must be mentioned, the peine forte et dure. When a prisoner accused of felony refused to plead he could not be tried, and as conviction of felony involved forfeiture of property, many bold men refused to plead, in order that their possessions might be preserved for their families. But they well knew the consequences. They were laid on their backs, and heavy weights piled on their breasts until they either gave way and consented to plead or died.
This peine forte et dure, which Shakespeare calls "pressing to death" in Measure for Measure v. i. 525, was not abolished until the reign of George II. Another drastic punishment of Shakespeare"s day was the writ of praemunire for giving obedience to papal encroachments on the royal power. It was a statutory offence and punishment, dating back to 16 Richard II, c. 5, and the effect of the writ is correctly described in Henry VIII III. ii. 38-45, thus: Lord Cardinal, the king"s further pleasure is, Because all those things you have done of late, By your power legatine, within this kingdom, Fall into the compass of a praemunire, That therefore such a writ be sued against you; To forfeit all your goods, lands, tenements, Chattels, and whatsoever, and to be Out of the king"s protection. Another peculiarity still extant in Shakespeare"s day, which only gradually died out some centuries later, was the extraordinary class privilege known as "benefit of clergy".
Originally a privilege from temporal jurisdiction claimed by the Catholic Church for its ordained clergy, it was ultimately extended to all clerks, whether secular or religious, and its effect was, after the Reformation, to substitute imprisonment, and in some cases branding on the hand, for death, in the case of convicted felons who could read. This is referred to in 2 Henry VI IV. ii. 69-71: But methinks he should stand in fear of fire, being burnt i" the hand for stealing of sheep.
By Elizabeth"s time the benefit had by a series of statutes been disallowed in cases of petty treason, piracy, homicide, burglary, housebreaking with violence, highway robbery, horse-stealing, robbing of churches, theft from the person, rape, and abduction; but the fact that eleven persons claimed benefit of clergy at Exeter Assizes in 1598, and were branded and released, instead of being hanged, shows how valuable the privilege was. Women except originally professed nuns were denied the privilege until 1692.
In 1827 benefit of clergy was abolished generally, but, by a slip, peers were not included in that statute. The privilege was, however, taken from them in 1841. Benefit of clergy is alluded to in 2 Henry VI IV. vii. 39-51, where Jack Cade says: Thou hast caused printing to be used; and, contrary to the king, his crown, and dignity, thou hast built a paper-mill. It will be proved to thy face that thou hast men about thee that usually talk of a noun and a verb, and such abominable words as no Christian ear can endure to hear.
Thou hast appointed justices of peace, to call poor men before them about matters they were not able to answer. Moreover, thou hast put them in prison; and because they could not read, thou hast hanged them; when indeed only for that cause they have been most worthy to live. One cannot help feeling some sympathy with Jack Cade in this impeachment of benefit of clergy, but Shakespeare himself gives no sign that it was any more obnoxious to him than the other matters denounced by Cade.
But perhaps the worst feature of the Criminal Courts in Shakespeare"s time was the subservience of the judges to the executive. They were then appointed durante bene placito — removable at the sovereign"s pleasure. It was not until early in the eighteenth century 12 & 13 Will. III, c. 2 that the judges were made independent of government influence, since when they have been appointed quamdiu se bene gesserint, and can only be dismissed on an address by both Houses of Parliament.
This subservience was not only shown in the conduct of trials, but in the withholding of the writ of Habeas Corpus when persons were imprisoned by order of the King or the Privy Council; and it was not until 16 Car. I, c. 10, that an attempt was made to remedy this, which was subsequently clinched by the famous Habeas Corpus Act, 1679, which still governs the subject, and imposes heavy penalties on judges who refuse to issue the writ.
The Elizabethan age was pitiless, and "the way of the transgressor" was certainly made as hard as it could be. LAND LAW AND OTHER BRANCHES OF PRIVATE LAW The main principles of the law relating to land were much the same in Shakespeare"s time as they are now, with the following exceptions: 1 Military tenures still existed; but actual military service had been, practically in all cases, commuted for a money payment called "escuage ". Nevertheless the other burdensome incidents of the tenure, such as wardship, relief, &c. remained, and this had made them hateful. They were, however, not abolished until 1646. 2 The various ingenious purposes to which the Statute of Uses and the Statute of Wills of Henry VIII could be perverted had not yet been discovered; and as a corollary the modern system of strict settlement had not been invented. 3 The methods of conveying land, and of barring entails, dower, &c. , were entirely different from what they are now, and were extremely quaint.
The first of these subjects was too technical for notice either by Shakespeare or other lay writers of that age. But the third is frequently referred to in popular Elizabethan literature. The common method of conveying land to a purchaser in fee simple was by "feoffment with livery of seisin". This is the most ancient form of assurance known to the law, and similar methods are still practiced in communities whose civilization has not progressed so far as ours.
The "livery", i. e. delivery of possession, was either "livery in deed", i. e. actual delivery, or "livery in law". In the case of livery in deed the owner feoffor and the donee or purchaser the feoffee met on the land itself, and the feoffor there and then delivered possession of it to the feoffee, at the same time stating by apt words that he enfeoffed him for whatever estate i. e. interest he was intended to take, e. g. f the fee simple were to be taken, the words would be, "I deliver these lands to you and your heirs for ever". No writing was at that date required for a valid feoffment to persons other than corporations, but in practice it was not unusual to have a "charter of feoffment" recording the transaction and the nature of the estate conferred. Very generally, too, some symbolical act was added, such as the delivery of a key, a twig, or a clod of earth. quot;Livery in law" took place in sight of but not on the land, and was not complete unless and until the feoffee, in the joint lives of himself and the feoffor, actually took possession or attempted to do so but was stopped by force. Feoffments gradually died out owing to the invention after Shakespeare"s day of the lease and release operating under the Statute of Uses; but instances of feoffments were not infrequent in the early part of last century.
References to this ancient method of conveying land are to be found in Elizabethan literature: Therefore inclyning to his goodly reason, Agreeing well both with the place and season, She gladly did of that same babe accept, As of her owne by liverey and seisin. Spencer, Faerie Queene, VI. iv. 37 Keep your possession, you have the door by th" ring; That"s livery and seisin in England. Webster, Devil"s Law Case, I. ii Shakespeare himself, however, never mentions the subject, although he was not only a considerable purchaser of real estate, but seems to have been involved in litigation in relation to it.
In 1597 he purchased "New Place", Stratford-on-Avon, from a collateral ancestor of the present writer one William Underhill, the property consisting of "one messuage two barns and two gardens with their appurtenances"; but apparently owing to the sudden death of the vendor by poison in July 1597, the conveyance was not completed until 1602, when Shakespeare was enfeoffed by Hercules Underhill, the heir of William, on attaining his majority.
Shakespeare subsequently purchased other lands in the neighbourhood, including 107 acres of arable land in 1602,. and 20 acres more in 1610. He also became a copyhold tenant of the Manor of Rowington in 1602. Last of all, in 1613 he bought a house and shops in Blackfriars. With regard to the barring of estates tail and the prospective dower of married women, the method was very curious. For about two hundred years after the passing of the celebrated statute de donis conditionalibus 13 Edw.
I, c. 1, estates tail i. e. estates descendible only to the heirs or heirs male of the body of the original feoffee were incapable of alienation either by gift or sale. But in the reign of Edward IV, an old device known as a Common Recovery which had at one time been used to enable ecclesiastical corporations to acquire lands, notwithstanding the laws against mortmain was applied to defeat the heirs in tail and persons claiming in remainder i. e. in default of heirs of the body.
This common recovery was a collusive action commenced by a friendly plaintiff called the demandant against the person in possession tenant in tail, or sometimes tenant for life in possession and tenant in tail in remainder, asserting that the defendant claimed through some third person who had wrongfully deprived the demandant of the possession. The defendant pleaded that he derived his title from the crier of the Court who had warranted it, and demanded that the crier should be "vouched to warranty", i. e. called upon to defend the action.
The crier the "common vouchee" at once admitted the warranty, and craved leave to "imparl" i. e. to negotiate outside the Court. He then failed to return until judgement was given that the demandant should recover the lands and that the common vouchee should provide other lands for the defendant of equal value, which of course he was quite incapable of doing. Thus, by this fictitious judgement, the plaintiff acquired an estate in fee simple, and forthwith conveyed it to the defendant or his nominee, so defeating not only the entail, but all remainders to take effect in the event of failure of heirs of the body.
Sometimes single vouching was sufficient; in other cases for technical reasons a double vouching was necessary for a complete bar. In all cases the whole proceeding was a solemn and costly farce. It seems scarcely credible that this grotesque fooling should have been enacted many times every year from the time of Edward IV until that of William IV, when it was abolished in favour of a simple enrolled deed. A "fine" was somewhat similar to a recovery, but the action was stopped before judgement by a collusive compromise.
It was used mainly to enable married women to join with their husbands in selling the fee-simple property of either. Except by means of a fine, a husband could not sell his own property free from his wife"s contingent right to dower; and she, on the other hand, could not sell her own property at all, being under coverture. The impossibility of selling freehold land free from the widow"s right to dower without going to the expense of a fine, led to various devices intended to prevent the right ever attaching.
In later times this barring of dower was effected by an elaborate and highly technical system of uses and powers operating under the Statute of Uses, and this method lasted down to the reign of William IV. But in Shakespeare"s time the usual method was for a purchaser of land to take the conveyance not to himself alone, but to himself and several friends as trustees for him in joint tenancy, dower only attaching to lands held by one person solely.
When one of these joint tenants died, his place was filled up by another person, and so the property never became vested in a sole owner. This plan was adopted when Shakespeare purchased his Blackfriars property. Sir Sidney Lee conjectures that this was done for the purpose of depriving Shakespeare"s wife of dower, but to a conveyancer it is clear that it was necessary in order to enable him to mortgage the property as he did the next day without the expense and delay of a fine.
Fines and recoveries seem to have specially appealed to Shakespeare, who doubtless witnessed the process at Westminster Hall. Thus in the grave scene, Hamlet says: 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 ?
Haml. V. i. 110-18 [*What "statutes and recognizances" had to do with the buying of land is not evident to a lawyer, and may suggest that Shakespeare"s knowledge of the law of property was neither accurate nor extensive. ] [E. REFUTED] And again in The Merry Wives of Windsor IV. ii. 227-30: Mrs. Page. The spirit of wantonness is, sure, scared out of him: if the devil have him not in fee-simple, with fine and recovery, he will never, I think, in the way of waste, attempt us again.
So in The Comedy of Errors II. ii. 74-9: Dro. S. There "s no time for a man to recover his hair that grows bald by nature. Ant. S. May he not do it by fine and recovery ? Dro. S. Yes, to pay a fine for a periwig and recover the lost hair of another man. The cutting off of entails was considered a desirable thing by Edward IV and his judges, otherwise the audacious common recovery could scarcely have been invented; but the question of fettering the free alienation of land has always been a burning one.
A member of Lincoln"s Inn in 1641 gravely treated the question as depending on the laws of God, and declared that to abstain from disentailing an estate in tail male was contrary to those laws, as the result might be to cut out daughters for the benefit of remote cousins, issue of the first tenant in tail; "oneley", he added sententiously, "I must note by the way, that such as avoyd and cut off these estates to none other purpose but to enlarge their wanton expences, and to give them more scope to live licentiously, as they unjustly spoile their heires of their due inheritances, so shall not this my defence extend unto them; since my purpose onely is to reduce estates taile to the most proper conveyance of the Common Law"; and he concluded, "I could never after long observation find any family continue in the heires male three descents after an entaile made and continued to the heires male, by which I ghesse they are not watered with heavenly blessings". Mortgages were on a very different footing from what they are now.
Shakespeare never mentions them, although, as above mentioned, he mortgaged the house which he bought in Blackfriars the day after the purchase. Deeds which were then usually called Specialties Let specialties be therefore drawn between us, That covenants may be kept on either hand. Tam. Sh. II. i. 127-8 were for the most part written in Latin; in the case of bonds, the actual bond was sometimes in Latin, and the condition on which it was to become void in English. Deeds between two or more parties were indented, i. e. after being written in duplicate or triplicate on one skin of parchment, the parts were severed by being cut in a wavy or indented line so as to guard against forgery when the parts were fitted together, whence the technical word "indenture".
As Hamlet says: Will his vouchers vouch him no more of his purchases, and double ones too, than the length and breadth of a pair of indentures? Haml. V. i. 115-18 Marriage required no religious ceremony for its validity, although the omission of it was an offence. The only essential was verba de praesenti as distinguished from a promise to marry at a future date, the man and woman saying to each other, "I receive you as mine". No ceremony, no priest, no physical consummation was required; so that after such a pre-contract as it was called neither party could marry any other person. If either of them purported to do so, the second marriage was bigamous and voidable, and the issue of it bastards. Shakespeare clearly refers to this in Measure for Measure I. ii. 57-59, where Claudio insists, after his condemnation to death for cohabitation with Juliet without the previous sanction of the Church, She is fast my wife, Save that we do the denunciation lack Of outward order.
And again, where the Duke, urging Mariana to simulate Isabella and accept the embraces of Angelo, says: Gentle daughter, fear you not at all. He is your husband on a pre-contract: To bring you thus together, "tis no sin. Meas. for M. IV. i. 72-4 In short, Angelo"s condemnation of Claudio for alleged fornication was, and was intended by Shakespeare to be, absolutely tyrannical and illegal. It was quite common form in Shakespeare"s day for a bridegroom to give a bond that no pre-contract existed.
Shakespeare himself gave one on the occasion of his marriage. [Halliwell-Phillipps, 7th ed. 1887, vol. ii, p. 55. ] Curiously enough, too, Lord Coke married his second wife, Lady Hatton, in a private room, as she refused to go to church with so old a man. For this offence he was prosecuted, but got off by pleading "ignorance of the law", a plea which must have given great joy in legal circles. But no one suggested that the marriage was invalid. The capacity of making a will of lands was, in the time of Shakespeare, as ample as it is now; except that where lands were held by military tenure the power was confined to two-thirds of them.
It would seem, however, that with regard to personal property the ancient law restricted the owner to the disposal of one-third only if he left wife and child, or one-half if he left a wife only, the wife and children having as in Scotland at the present day a right to the rest. This was clearly enunciated as still existing law by Sir Harry Finch in the reign of Charles I, although Coke doubted it. But apparently it was considered a moot point and practically obsolete in Shakespeare"s day, and was certainly ignored in his own will. It also seems that in cases of intestacy the wife and children took in the same shares as above, but that, subject to their claims, the residue went to the person to whom the Ordinary granted administration.
Nominally he took it for pios usus, but practically he could keep it for himself, until the Statute of Distributions 22 & 23 Car. II, c. 10 deprived him of the right. REFUTATIO THE INNS OF COURT AND OF CHANCERY The four Inns of Court — the Middle Temple, the Inner Temple, Lincoln"s Inn, Gray"s Inn — were at the height of their glory in Elizabeth"s reign. Whatever their true origin, it is certain that at that date they formed, along with the more humble Inns of Chancery, a set of colleges for the study of the law, linked together in imitation of the colleges at Oxford and Cambridge into what would have been a University if they had been incorporated.
The Benchers represented the Master and Fellows of a college, the Utter or Outer Barristers the Junior Bar of today the Masters of Arts, and the Inner Barristers now the students the Bachelors and undergraduates. To make the analogy with Oxford and Cambridge more complete, each Inn of Court had its dining hall, its library, and its chapel; except that the two Temples shared the beautiful old church of the Templars between them. Like a college, too, each Inn was enclosed, and had its garden. All these features survive to the present day, except that the halls and libraries of Lincoln"s Inn and the Inner Temple, and the libraries of the Middle Temple and Gray"s Inn, were rebuilt during the last century.
The Middle Temple Hall dates from 1572, and that of Gray"s Inn from 1556. Legal education seems to have been without much method, consisting of readings and moots, and the period of probation was extraordinarily long. "For the space of seven years or thereabouts", says Stow, "they frequent readings, mootings, boltinges, and other learned exercises, whereby, growing ripe in the knowledge of the lawes, and approved withal to be of honest conversation, they are selected and called to the degree of Utter Barristers. " Every year the Benchers chose from among their own number two "Readers" whose election was the occasion of a mighty feast.
These learned persons occasionally delivered a reading — a lecture as we should call it now — on some single point, after which the Utter Barristers would debate it, and finally some of the Bench would give their views. This does not seem to be a very hopeful system of teaching the law. Coke lamented the inferiority of the "Readings" in his day to those of the past, saying 1 Inst. 280 h: But now readings have lost the said former qualities, have lost also their former authorities: for now the cases are long, obscure, and intricate, full of new conceits, like rather to riddles than lectures, which, when they are opened, they vanish away like smoke; and the Readers are like to lapwings, who seem to be nearest their nests when they are farthest from them.
Dugdale, in his Origines, mentioned that some of the Utter Barristers were also appointed to assist the younger students, much as is done now by the Council of Legal Education; and one may make a shrewd guess that it was as it is still by the labour of these gentlemen, coupled with invaluable practical experience in the chambers of counsel in good practice as pleaders and conveyancers, and by attendance at the Courts, that the young barrister of Shakespeare"s day got his real professional education. Textbooks were few and invariably in Latin. The Inns were very exclusive in those days, admitting none except "gentlemen of blood", and this was enjoined by a royal command of James I. There were numerous sumptuary and disciplinary regulations enforced by fines, putting out of commons, and even apparently by imprisonment. Thus, attendance at chapel, shaving "at least once in three weeks", the wearing of gowns even outside the Inns, the renunciation of swords and bucklers, boots and spurs, great hose, great ruffs, silks and furs, were all insisted on.
On certain feast days there were revels. At Christmas, for instance, according to Dugdale, there were revels and dancing every night from Christmas Day to Twelfth Night, even the Justices, Serjeants, and Benchers the two former must have been guests dancing apparently pas seuls. But the world was younger then than now, when such performances by the sages of the law are scarcely imaginable. The early Elizabethan drama owed much stimulus to the performance by barristers of plays in their halls at festive seasons. It was in the Hall of the Inner Temple on Twelfth Night, 1561, that the first English tragedy, Gorboduc, which was written by two members of the Inn, was first acted.
Again, the first regular English comedy, Supposes, was first acted in Gray"s Inn Hall, five years later, the authors, George Gascoigne and Francis Kilwelmershe, being both students of the Society; in both these plays the actors as well as the authors belonged to the legal profession. Instances of like procedure abound throughout the period of Shakespeare"s professional career, although the pieces which were presented in the halls of the Inns were not always from lawyers" pens. It was for a Christmas revel at the Middle Temple that Shakespeare wrote Twelfth Night; and The Comedy of Errors certainly played in Gray"s Inn Hall in 1594 in the intervals of "dancing and revelry with gentlewomen".
The origin of the eight lesser Inns of Chancery — Thavies", Furnival"s, Barnard"s, Staple, Clifford"s, Clement"s, New, Lyon"s — is even more obscure than that of the four Inns of Court. They appear, however, to have been resorted to by the clerks in Chancery, and by students who were unable to gain access to the Inns of Court, and, at all events at one time, were considered as preparatory schools. When, however, in 1557 the Inner Temple refused admission to attorneys and solicitors, and in 1574 expelled such as still remained on their books, they seem to have taken refuge in the Inns of Chancery, which, by the middle of the seventeenth century, had been abandoned to them.
Shakespeare makes no mention of them collectively, although he mentions individual Inns such as Clement"s Inn, to which Justice Shallow belonged: Shallow. A" must, then, to the inns o" court shortly. I was once of Clement"s Inn; where I think they will talk of mad Shallow yet. 2 Hen. IV, III. ii. 14-16 And later on, in the same scene 24-5: You had not four such swinge-bucklers in all the inns of court. And still further 34-7: The very same day did I fight with one Sampson Stockfish, a fruiterer, behind Gray"s Inn. Jesu! Jesu! the mad days that I have spent. The Serjeants had Inns of their own, and were with much ceremonial dismissed from their Inn of Court upon being promoted to the coif.
This was a most expensive proceeding, involving the presentation of gold rings to all the other Serjeants and divers other great persons, and a feast at the Inn of Court to which the newly made Serjeant belonged, which is said to have cost sometimes over £600. With the virtual abolition of the Order in the last quarter of the nineteenth century, all this of course came to an end, and Serjeants" Inn in Chancery Lane was sold and demolished. On the whole the constitution of the Inns of Court remains much what it was in the year 1600; but the readings, the revellings, the "boltinges", even with the exception of Gray"s Inn the moots, the dancings of Lord Chancellors and judges round the hall fire at Christmas time, nay, even the social life, have for the most part vanished.
