PART ONE
LITIGATION AND LEGALISM
IN ELIZABETHAN ENGLAND

[140] FOR all who have cared to follow it, the process of confronting with parallel passages the evidence offered for the legal training of the author of the Shakespearean Plays must be decisive as to the fallacy involved. But even without that tedious process of confutation, any alert student of Elizabethan literature might be expected to reject a thesis which proceeds upon lack of familiarity with the life which that literature more or less clearly mirrors. Most of the champions of the "legal" theory—orthodox, Baconian, and anti-Stratfordian alike—simply ignore the evidence f or the general currency of legal phrases in the Elizabethan and Jacobean period. Mr. Grant White, as we have seen, does avow the frequency of legal allusions in the drama in general, but goes on to posit the false proposition that in Shakespeare they are much more numerous than elsewhere. In reality, as we have already to some extent seen, they pervade all Elizabethan literature, and they tell of a general litigiousness which is at once the cause and the explanation. "Thou’lt go to law with the vicar for a tithe goose," says Hobson in Heywood’s Edward IV.* As Nashe has it in Pierce Penilesse His Supplication to the Divell: "Lawyers cannot devise which way in the world to beg, they are so troubled with brabblements and suits every term, of yeomen and gentlemen that fall out for nothing. If John a Nokes, his hen do but leap into Elizabeth de Yappe’s close, she will never [141] leave to haunt her husband till he bring it to a Nisi Prius. One while the parson sueth the parishioner for bringing home his tithes: another while the parishioner sueth the parson for not taking away his tithes in time."** All the while the burden of "the law’s delays" was known to all men. Chapman makes a character declare that (I cures are like causes in law, which may be lengthened or shortened at the discretion of the lawyer: he can either keep it green with replications or rejoinders, or sometimes skin it fair a’ th’ outside for fashion sake: but so he may be sure ‘twill break out again by a writ of error, and then he has his suit new to begin."***

Roger Hutchinson, in his Sermons Of Oppression, Affliction, and Patience (1553) is amusingly careful to explain that when Paul blames Christians for going to law, "the fault which he affirmeth to be in suits must be referred to one party, not to the plaintiff and defendant both. . . . These words [‘Why rather suffer ye not wrong?’] are spoken to unjust and contentious suitors, and do not disprove rightful Suits"****—an audacity of misinterpretation at which an attorney would have blenched. The England of that day, in fact, appears to have been a scene of manifold oppression as well as of litigiousness; and a doctrine of non-resistance would not have won much assent. But Hutchinson devoutly protests that "for as much as . . . malice increaseth daily by delays, and long continuance of suits through the covetousness of lawyers; would God the King’s Majesty, by the assent of his Parliament, would make some statute that all suits should be determined and judged within the compass of a year, or of half a year if their value were under a hundred pound, upon pain of some great forfeiture to the judges before whom such matters come."† [142]

It might have been well to set up some machinery for the discouragement of frivolous suits. Latimer in his first Sermon before King Edward VI tells of a lawsuit

betwixt two friends for a horse. The owner promised the other should have the horse if he would: the other asked the price; he said twenty nobles (five pounds). The other would give him but four pound. The owner said he should not have him then. The other claimed the horse, because he said he should have him if he would. Thus this bargain became a Westminster matter: the lawyers got twice the value of the horse; and when all came to all, two fools made an end of the matter.††

In his Second Sermon before the King, again, Latimer tells of unjust judges, who listen only to the rich litigant, and help him to oppress the poor. "I cannot go to my book, for poor folks come unto me, desiring that I will speak that their matters may be heard."††† Purely oppressive suits were common; but there were as many fools as knaves, all making work for the lawyers.

This mania for litigation is dramatically set forth again in the poor play, If You Know Me, You Know Nobody, Part II—obviously, as it stands, the work of several hands and different times, but ascribed to Heywood, who doubtless had "a hand or a main finger" in it as in two hundred more. In one of the earlier scenes Gresham and Sir Thomas Ramsey, the eminent London merchants, are brought together to be reconciled over a foolish lawsuit in which they have been embroiled for six or seven years. Doctor Nowell tells

and old Hobson jovially rates them on their passion

The two litigants for a time snap at each other, revealing the animal pugnacity of the race, which turned spontaneously [143] to litigation when the reign of law set limits to private warfare. Their ground of quarrel was that Ramsey had "given earnest" for a piece of land which Gresham, not knowing of the previous transaction, bought and, built upon; and they are now induced to shake hands upon the friendly arbiter’s decision that Gresham shall pay Ramsey a hundred pounds compensation, each losing the five hundred pounds he has spent during the futile lawsuit. If it be objected that plays are not valid evidence as to social usage or habit, it may suffice to cite Mr. Hubert Hall’s account†††† of the lawsuits over the inheritance of "Wild Darrell" for unimpeachable evidence of Elizabethan manners, morals, and practices. We there seem to find ourselves in a world still half-savage, where law and lawlessness are in a perpetual, breathless grapple, and where the authentic record at once makes credible many episodes in the contemporary and later drama which at a first reading seem grotesque exaggerations. The litigiousness and the lawlessness, the legal and the illegal frauds and violences, are correlative.

Apart from such stress of strife, the whole Elizabethan drama tells of a normal resort to the procedure of arrest for debt. One of the commonest situations is that in which a personage is either rightfully or fraudulently "attached" or arrested; and the invariable question, "At whose suit?" tells of a general familiarity with the occurrence. People in humble life are made normally to use technical language in regard to such mishaps. In the play last cited, the pedlar, Tawnycoat, utters a soliloquy which, had it occurred in a Shakespearean play; would have been triumphantly cited by the critical tribe of Lord Campbell as proof positive of the playwright’s "profound" acquaintance with legal procedure:

Heywood was no lawyer, but he makes a non-legal character, still in the same play, quote in due form legal maxims that would have proved his lawyership for both Lord Campbell and Mr. Rushton. Twice over, Jack Gresham quotes one such maxim, the second time thus:

Friend, Ployden’s proverb: the case is alter’d; and, by my troth, I have learn’d you a lesson; forbeayance is no acquittance.‡

That phrase, "The case is alter’d," is a standing tag in Elizabethan drama, and Ben Jonson makes it the title of a play. In the second part of his King Edward The Fourth, again, where Aire, after being saved from execution for piracy by the influence of Jane Shore, is executed for succouring her, Heywood makes the doomed man thus play on legal terms and procedure in his farewell speech:

Here we have the very fashion of lawyerism seen in those Sonnets of Shakespeare which are cited as proof of his "profound technical knowledge," and this in a play meant for common folk and tolerable only to them. To such phraseology they were daily accustomed. Such a [145] proclivity meant, further, a habitual haunting of law courts; and in Stratford-on-Avon, where a fortnightly court was regularly held, it is morally certain that people with any idle time on their hands would frequently seek there what must have been the most interesting entertainment regularly open to them. If such resort is still common in days of newspapers and in towns supplied with theatres, it must have been much more so in a time and in places where news-sheets were still unknown and theatres non-existent. Drayton draws a picture which generalises one that must have been familiar to many thousands of his countrymen:

Like some great learned judge, to end a weighty cause,
Well furnished with the force of arguments and laws,
And every special proof that justly may be brought;
Now with a constant brow, a firm and settled thought,
And at the point to give the last and final doom
The people crowding near within the pester’d room.
A slow soft murmuring moves amongst the wond’ring throng,
As though with open ears they would devour his tongue.‡‡

_________

* Part I. Pearson's Heywood, vol. i, p. 71. back

** Works, ed. McKerrow, i, 189. back

*** All Fools, iv, i. back

**** Works of Roger Hutchinson, Parker Soc. ed. 1842, p. 328. back

† Id. p. 332. back

†† Sermons of Hugh Latimer, ed. in "Everyman's Library," p. 76. back

††† Id. p. 108. back

†††† Society in Elizabethan England. back

‡ Id. p. 332. (CP. p. 329.) back

‡‡ Polyolbion, 5th Song, ii, 29-36. back