"Shakespeare's Legal Knowledge"

NOTE A TO CHAPTER II

THE STRATFORD COURT OF RECORD

Much exaggerated language has been used concerning the Court of Record at Stratford-on-Avon, as though it had been presided over by one of the judges of the land, and addressed by counsel learned in the law. And it was before this august tribunal that Shakespeare is said to have "picked up" a great part of his legal knowledge!

But what are the facts? By his Charter of 1553 Edward VI granted to the Bailiff and Burgesses of Stratford-on-Avon a Court of Record to be held before the Bailiff, to try personal actions of debt, trespass, etc., where the debts or damages claimed were less than £30. The Bailiff who presided over the Court was usually assisted by one or two of the Burgesses. It was not till the year 1664 that the title of Mayor, Aldermen, and Burgesses was granted to the Corporation by the Charter of Charles II, which also raised the jurisdiction of the Court from £30 to £40. After this date the Steward of the Court, who was elected by the Common Council, had the duty imposed upon him of presiding with the Mayor as Judge in the Court of Record. However, we are now concerned only with the Court as it existed under the Charter of Edward VI. It has been assumed by some writers that the Bailiff tried all the cases which came before him in the Court of Record with a jury. I think this must be a mistake, though there seems to be no doubt that some cases were so tried. Juries were at times summoned at Stratford, as at other places, "on view of frank-pledge," that old institution of Alfred under which the freemen within the liberty of a hundred, lordship, manor, or other local division, were all mutually pledges for the good behaviour of all the rest. "When the view [of frank-pledge] is in private hands," write Pollock and Maitland (Vol. I, p. 557), "we often find that the duty of presenting offenders is performed [104] by the chief pledges who thus form themselves into a jury." We have, for example, the famous presentment of April 29th, 1552: "Item juratores presentant super sacramentum suum quod Humfridius Reynoldes xijd. Adrianus Quiney xijd. et Johannes Shakyspere xijd. fecerunt sterquinarium in vico vocato Hendley Strete contra ordinacionem curie; ideo ipsi in misericordia, ut patet." "Visus franci plegii, Stratford. Burgus, 29 April, 6 Edward VI" Here the jurors on view of frank-pledge fine John "Shakyspere" and two others for having a muck-heap before their houses in Henley Street. But Mr. Halliwell-Phillipps, on the same page as that on which he quotes the above presentment (Outlines, 6th ed. Vol. II, p. 215), tells us of John Shakspere that, in 1556, "he was summoned on a Court of Record Jury on 21 March." But he goes on to quote as follows from the proceedings of the Court: "Thomas Sirhe de Arscotte, in comitatu Wizornienci, queritur versus Johannem Shakyspere de Stretforde, in comitatu Warwicensi, Glover, in placito quod reddat ei octo libras," etc. It is clear, therefore, that John Shakspere was not summoned on a jury to try the case, for he was himself defendant. If he was summoned on a jury at all at that date it was, doubtless, a jury on view of frank-pledge. Similarly, when we read, on p. 217, that, in 1558, "Johannes Shakespere was summoned on a Court of Record jury, 23 February," it is clear that this is another case of a jury on view of frank-pledge, for reading on we find, "‘Fraunces Harbadge, master bely (i.e. bailiff) that now ys, Adreane Quyny, Mr Hall, Mr Clopton, for the gutter alonge the Chappell in Chappell Lane, John Shakspeyr (iiijd) for not kepynge ther gutters cleane they stand amerced,’ view of frank-pledge, April." And, again, on p. 219, we read that, in 1560, "Johannes Shakespere is in a list of jurors that were appointed at a view of frank-pledge held at Stratford-on-Avon on October the 5th, but it appears, from a cancel of his name, that he did not serve."* [105]

These various presentments of the jurors on view of frank-pledge must be distinguished from the ordinary cases tried before the Bailiff, and the Burgesses his Assessors, in the Court of Record. Those cases were for the most part actions for small debts, a very large number of which were brought against John Shakspere. Thus we read, "Adrianus Quenye et Thomas Knyght queruntur versus Johannem Shakespere de placito debiti super demandam vj. li," which were "proceedings of the Court of Record 19 April, a summoning order against the defendant being duly granted." Again, "Adreanus Quenye et Thomas Knight petunt distringas versus Johannem Shakspeyr in placito debiti," "ibid, 6 May, and an order of distringas was given," and so on, and so on. John Shakspere was, it appears, continually being sued in the Court for small debts, and sometimes he is himself the plaintiff in placito debiti. But that these trumpery cases were tried before a jury seems in the highest degree improbable, and, so far as I am aware, there is no evidence to support such a hypothesis. I will leave the reader to judge how much law was to be "picked up" in the course of the pettifogging trials before the Bailiff in this Court of Record.**

John Shakspere, it is hardly necessary to add, was also involved in litigation concerning real property. I allude to his vexatious and abortive actions against John Lambert in his desperate attempt to recover the estate of Asbies, and I would refer the reader to a very instructive article on this subject—"Shakespeare and Asbies"—by Mr. Harold Hardy, published in Baconiana for July, 1914. The actions alone were sufficient to reduce John Shakspere, who was already in financial difficulties, to a very low state of impecuniosity. [106]

NOTE B TO CHAPTER II

MR. ROBERTSON ON SUPPOSED LEGAL TECHNICALITIES IN JONSON’S POETASTER AND IN A WARNING FOR FAIRE WOMEN

The impossibility of accepting a layman’s judgment on this question of Shakespeare’s legal knowledge is well illustrated by the following passage from Mr. Robertson’s work. After referring to Lord Campbell’s comments on the indictment of Hermione (Winter’s Tale, III, 2), he writes (p. 66), "With what wonder then must the lawyers read the indictment of Crispinus and Fannius in Jonson’s Poetaster (V, 1) where the technicalities are to Shakespeare’s as three to one!"

Now "the lawyers" have not read the indictment of Crispinus and Fannius with "wonder," because they have not read it at all! It is true that Virgil, in Jonson’s play, says, "read the indictment," but what Tibullus does, in response, is to call upon the prisoners to plead, in the course of which he does not read the indictment but merely states the effect of it. Nor are there really any "technicalities" unless such words as, "contrary to the peace of our liege lord, Augustus Caesar, his crown and dignity, and against the form of a [sic] statute, in that case made and provided," are to be considered such. But even these familiar words, known to everyone who has ever attended Courts of criminal jurisdiction, in the case of indictable offences, are not used with any technical knowledge or art. When an indictment is framed on a statute it concludes with the words, against the form of the statute in such case made and provided and against the peace of our Lord the King, his crown and dignity." But here we have "against the form of a statute," etc., and the other words cited, pitched at random into this mock indictment of which Tibullus, as officer of the Court, is supposed to be giving the gist, and which having accused the prisoners of going about to deprave the person and writings of Quintus Horatius Flaccus, then goes on to accuse them further [107] (apparently in the same "count") with conspiring and plotting against him. But the whole thing is, of course, merely a travesty of an "arraignment," and to imagine that it is indicative of any legal learning would be ridiculous indeed. At the same time, I must add that I attach no importance to the words cited by Lord Campbell from the "indictment" of Hermione in Shakespeare’s play.

Let us now consider Mr. Robertson’s remarks concerning that old play A Warning for Faire Women. He writes as follows (at p. 154): In "A WARNING FOR FAIRE WOMEN (1599) there is a long trial scene to which, for detail, formality, and general realism, there is no parallel in Shakespeare’s plays. A murderer, concerning whose case there has already been much amateur detective investigation, is tried before ‘the Lord Mayor, the Lord justice, the four Lords, and one clerk, and a Sheriff,’ who enter in due form."

Let us pause here for a moment. I do not know for what reason Mr. Robertson marks the above words—"the Lord Mayor," etc.—as a quotation. Scene 4 of Act IV of the play is at "Westminster, The Court of King’s Bench," and at the outset we read "Enter a Sheriff, Clerk of the Court, and Officers." Subsequently we have "Enter Lord Mayor, Lord Justice, and four other Lords." When the Sheriff sits beside the judge at an Assize Court, and the Clerk of the Court (or of Assize) occupies his usual position below, it really is not usual to say "the prisoner was tried before the Judge, one clerk, and a Sheriff!"

Mr. Robertson continues: "The Lord justice calls:

The Clerk duly does so, the document being given in full, in the strict form of the day. The criminal is told in full legal detail how ‘with one sword, price six shillings,’ he accomplished his crime; and on his pleading guilty the case proceeds exactly as such a case might, the judge pronouncing a homily before passing sentence. The abettors of the crime are then brought in and indicted ‘jointly and severally,’ with [108] the same technical precision, and searching questions are put to the guilty persons. The ‘inditements’ stand as documents of Elizabethan criminal procedure. Had such a scene been found in a Shakespearean play, it would have been claimed by the legalists as overwhelming evidence of Shakespeare’s lawyership."

Let us examine this. A Warning for Faire Women was published anonymously in 1599. It has been edited, with an introduction and notes, by Mr. A. F. Hopkinson (1904), and although printed "for private circulation," copies of the work are to be obtained without much difficulty. The play, as Mr. Hopkinson writes, "belongs to that class of dramatic composition which Mr. Collier appropriately describes as ‘domestic tragedy’; that is, an appalling crime was committed which made a great stir in the country, and, for some cause connected with it, excited the popular interest." Of the crime in question an account has been furnished by Stow. One George Browne "cruelly murdered two honest men near unto Shooters Hill in Kent, the one of them was a wealthy merchant of London named George Sanders, the other John Beane of Woolwich." For this murder Browne, who pleaded guilty, was executed at Smithfield and, subsequently, Mistress Sanders, the wife of the murdered man, and a certain Mistress Drury, were convicted "as accessaries" (says Stow) and also executed at Smithfield. Further "Trustie Roger, Mistress Drury’s man, was arraigned . . . and being there condemned as accessary, was executed with his mistress at the time and place aforesaid."

Such was the notorious crime upon which this old play was founded, and, as already mentioned, the fourth scene of the fourth act is laid at the Court of King’s Bench, Westminster, where George Browne, and subsequently, Anne Sanders and Anne Drury, are brought up for trial before the "Lord Justice," with whom are associated "four other Lords," apparently as assessors. George Browne is first arraigned by the Clerk of the Court, who, according to the practice, states the substance of the indictment against him, of course changing the third person to the second person, substituting "for that thou" etc., for "for that he" etc. But since Browne pleads guilty there is no trial. Then, after Browne is sentenced, Anne Sanders and Anne [109] Drury are also arraigned, the indictment charging them with being "accessories both before and after the fact," whereupon they plead "not guilty" and elect to be tried "by God and by the Country."

Now, says Mr. Robertson, "if such a scene had been found in a Shakespearean play, it would have been claimed by the legalists as overwhelming evidence of Shakespeare’s lawyership." If so the "legalists" would have written themselves down asses with a vengeance! In the first place, whether it be true or not that Shakespeare’s plays disclose the fact that their author had a peculiar knowledge of law, and legal customs, and legal life, as so many high authorities have contended, it is certainly not upon his supposed knowledge of criminal law that that contention is based; and secondly, the mere knowledge of the jargon of an indictment for murder, familiar to all who attended criminal Courts at the trial of such cases, and frequently published with the accounts of sensational trials for murder, would be but a frail peg whereon to hang the proposition that the author must have had special legal training. "Overwhelming evidence" indeed!

But, further, if the reader will peruse the scene in question for himself, he will find no evidence at all of a lawyer’s hand therein. Anne Sanders and Anne Drury elect to be tried "by the country," i.e. they "put themselves upon the country" as we should say. What happens then? The "trusty Roger," Mrs. Drury’s man, himself particeps criminis, an accessory both before and after the fact, is called as a witness, and upon some quite inconclusive statements of this criminal, entirely uncorroborated, for not a single other witness is called, the two prisoners are condemned. And how are they condemned? Where is the jury? And what is their verdict? There is no jury, and no verdict! Apparently there is no need for such trifles. The prisoners are condemned by the Lord Chief justice himself, and "the country" has not a word to say in the matter! A curious sort of lawyer must the author have been if a lawyer he really was!

But who was the author? The play, says Mr. Robertson, is conjecturally ascribed by Fleay to Lodge, whose training was in medicine." So Lodge, without any legal training, could [110] actually write all this wonderful law, viz., the substance, more or less correct, of two short indictments for murder! Edward Phillips, however, in his Theatrum Poetarum, 1675, ascribed the play to Lyly. Mr. Hopkinson, in his introduction, gives good reason for rejecting the idea that either of these two playwrights was the author. His own opinion, founded on internal evidence, is that Thomas Kyd wrote the play.

"Kyd was born to the trade of ‘noverint,’ and perhaps spent a few years in the office of his father who was a scrivener; in A Warning, IV, 4, the indictments of Browne, Anne Sanders, and Drury, with their legal jargon, point to the probability of their having been drawn up by one accustomed to copying legal documents. All Kyd’s plays, with the exception of his translation of Garnier’s Cornelia, were issued anonymously, so was A Warning."

According to this hypothesis, then, the simple explanation of the so-called "indictments" is to be found in the fact that the author was "accustomed to copying legal documents." But whether Kyd was the author or somebody else is of very little moment, for the play really contains no evidence whatever that the author had any knowledge of law. And again I say let the reader examine it for himself, and he will see the entire futility of Mr. Robertson’s supposed parallel.

But the truth is, as I have already said, that it is not by "long trial scenes" that Shakespeare gives us evidence of his legal knowledge. Rather it is by legal allusions that seem to turn up spontaneously, and as it were unconsciously, in unexpected and, it may be, in quite inappropriate places.

_________

* Higher up on the same page we read "He was summoned on a Court of Record jury on 6 September. 'Accio-Johannes Shakespere queritur versus Matheum, Bromley . . . in placito debiti. He was, therefore, as it seems, plaintiff in this action, not a juryman. back

** In the matter of the "view of frank-pledge" the Stratford Court resembled a Court Leet, which was "a court of record appointed to be held . . . within a particular hundred, lordship, or manor, before the steward of the leet, being the King's Court granted by charter to the lords of those hundreds or manors. Its original intent was to view the frank pledges, that is the freemen within the liberty who, according to the institution of Alfred, were all mutually pledges for the good behaviour of each other" (Wharton's Law Lexicon). It was the business of the Court Leet also to present by jury all crimes within the jurisdiction of the Court. On the question of trial by jury in the Borough Court see further in Appendix C. back